Skip to main content

So what can one do?  You take your legal copy of whatever that you paid $17.99 for and don't want to risk having taken from your vehicle and now the government does this.  So how does this differ from fair use in the past?   It does not!    

Police property: It’s finders keepers in NH

"The state Supreme Court ruled on Tuesday that the government can keep and destroy more than 500 CDs taken from Michael Cohen, owner of Pitchfork Records in Concord, in 2003 even though the state failed to prove that a single disk was illegal."

http://unionleader.com/...

"Cohen was arrested for attempting to sell bootleg recordings. But the police case collapsed when it turned out that most of the recordings were made legally. Police dropped six of the seven charges, and Cohen went to trial on one charge. He beat it after the judge concluded that the recording was legal."

"Indeed, the majority’s reasoning is chilling. The majority concedes that no crime or illegal act was proven, but allows the confiscation anyway by concluding that a crime might have been committed. The majority used words such as “apparently,” “likely” and “would have” to describe the alleged illegal activity."

Originally posted to Habanero on Fri Aug 25, 2006 at 07:22 PM PDT.

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  Got it from a real paper? (0+ / 0-)

    What's the Monitor say?

    I can't tell whether the state paper considers this an article or an opinion column:

    However, the police refused to return Cohen’s CDs. In the state Supreme Court’s Tuesday ruling, Chief Justice John Broderick, writing for the majority, reasoned so poorly that it appeared as if he’d made up his mind ahead of time.

    Dissenting, Justice Linda Dalianis wrote, perceptively, that “the majority does not explain how statutes prohibiting the production, publication, or sale of certain works render possession of such works unlawful.”

    What crap.

    •  I know the UL is rightwing fishwrap (0+ / 0-)

      but from what I read, they're absolutely right.  There's no way the state should have the power to keep and destroy the seized private property of a person who has not been found guilty of any offense.  Did I miss the part where the 14th Amendment was repealed?

      •  See below (0+ / 0-)

        One question is, is it the "private property" of the person/ business? The answer in many cases here is No, it was acquired by a transaction that was illegal -- not for the recipient, but for the seller.

        Case law on what to do with pawn shop inventory that turns out to be stolen might be relevant.

    •  Seems to be opinion from the directory.... (0+ / 0-)
      under which it appeared.  That does not mean that the content is easily impeached.  I will research LexisNexis later to verify the FUBAR outcome.

      BushCo Policy... If you aren't outraged, you haven't been paying attention. -3.25 -2.26

      by Habanero on Fri Aug 25, 2006 at 07:31:03 PM PDT

      [ Parent ]

    •  Answering my question (1+ / 0-)
      Recommended by:
      Simplify

      Here's the Concord Monitor story.

      What I think is involved here, and I don't know the details of the case:

      1. "Fair use" allows me to make a copy of my new Who's Left? CD
      1. It is illegal for me to sell that copy.
      1. But, I could keep the copy and go sell the original to Pitchfork, who will then resell it. Not quite legal, but almost impossible to prove.
      1. Being a greedy type, though, I make ten copies and sell several of them to Pitchfork. These are easily distinguishable from the mass-manufactured CDs. It was illegal for me to sell them but not illegal for Pitchfork to buy them.
      1. But, for the $2-$4 transactions, there was no record kept -- I just took cash. So Pitchfork cannot point the coppers to me, heh.
      1. Pitchfork acknowledges that these CD copies are not legally sellable -- fair use lets me make copies  to protect against damage, maybe even give one to a friend, but not to sell them.
      1. The state doesn't charge Pitchfork with a crime -- but wants to prevent any future profitable crime too, and confiscates the copies.
      •  From the article...... (0+ / 0-)
        "A year later, Cohen was cleared of the seven criminal charges. The state dropped six of the charges because either the artists had permitted the recordings or, in one case, because the recording exceeded the statute of limitations."

        Yet....

        "After beating the criminal charges, Cohen asked for all of his music back, saying he wanted it for his personal collection, not for his store's sale bins. In doing so, he acknowledged that there were bootlegs among them and that selling those would be illegal, according to court records."

        That is defective reasoning; if he has permission, it DOES NOT MATTER.  We do not yet know what contractual relationship(s) exists between the bands and Cohen....

        How can the recordings be contraband if they were recorded with the permision of the band(s)?  We don't know enough yet to say.  Yes... No....???

        BushCo Policy... If you aren't outraged, you haven't been paying attention. -3.25 -2.26

        by Habanero on Fri Aug 25, 2006 at 07:51:27 PM PDT

        [ Parent ]

        •  Defective reasoning on whose part? (0+ / 0-)

          Cohen's?

        •  I see your point and I anticipate some..... (0+ / 0-)
          of the arguments, but have look at this from the holder of the intellectual property position.  How often would one let a live performance be permitted at a concert.  The answer is almost never.  Consider that when most go to a concert cameras and other recording devices are strictly prohibited.  

          There is more to this.  

          BushCo Policy... If you aren't outraged, you haven't been paying attention. -3.25 -2.26

          by Habanero on Fri Aug 25, 2006 at 08:08:06 PM PDT

          [ Parent ]

          •  As you say, there is more (0+ / 0-)
            1. How does the court and the paper use the term 'bootleg'
            1. Many of the artists -- Dylan, Springsteen -- have been around A Long Time. Rules forbidding recording were not explicit years ago.
            1. Actively give permission, versus choose to not prosecute? is that involved?
            •  We have no knowledge that any recording was from (0+ / 0-)
              other than a live recording according to the accounts we have.  So the rule of law that applies is that as the law stands today.  

              As you said... did they give permission or choose not to prosecute...?  We don't know.  

              Also, they are not bootleg of a contractual relationship exists between Cohen and the bands for the distribution of the recorded material.  

              Again, I anticipate where the arguments are going, but the implications upon fair use are significant.  How does one define fair use?  The distribution rights are very different for an "end user" versus someone who may have rights to resell the intellectual property of a band.  We just don't know.

              BushCo Policy... If you aren't outraged, you haven't been paying attention. -3.25 -2.26

              by Habanero on Fri Aug 25, 2006 at 08:21:29 PM PDT

              [ Parent ]

    •  Here's one: (0+ / 0-)

      Concord Monitor

      http://www.concordmonitor.com/...

      Yesterday, in a split decision, the state Supreme Court denied Michael Cohen's request to reclaim his music, saying the recordings are contraband and, therefore, illegal for him to possess.

      "The state's extensive and longstanding laws protecting authors'and artists' works indicate a strong public policy against the production, distribution and possession of such items by anyone," wrote Chief Justice John Broderick in an opinion joined by Justices James Duggan and Gary Hicks.

      Justice Linda Dalianis was joined by Justice Richard Galway in her dissent. Although Cohen acknowledged to the court that he now knows many of the recordings are illegal, Dalianis said the state never established proof that they are illegal. And if it had, she isn't sure possessing those recordings would be prohibited.
      ......
      After beating the criminal charges, Cohen asked for all of his music back, saying he wanted it for his personal collection, not for his store's sale bins. In doing so, he acknowledged that there were bootlegs among them and that selling those would be illegal, according to court records.

      When the lower court denied Cohen's request, Cohen appealed to the state Supreme Court. Yesterday, he came up one justice shy of winning back his recordings.

      •  Interesting case (1+ / 0-)
        Recommended by:
        YucatanMan

        As I suggested above, precedents with pawn shop inventory might be relevant.

        •  Sorry, I took a long time to (0+ / 0-)

          post my comment (running around doing many things at once) and then when I did, I saw yours too.

          I think there is more to it than the diary article says: the facts of each and every case / decision are always very important. The fact that at least some were acknowledged 'contraband' ( = illegal recordings ) that he wanted "for his own collection" ("Hey judge, I'd like to have illegal recordings in my collection, please.") probably had great bearing.

          Was the case proven? No. Were the goods contraband, as defined by law? At least some were, by the defense's own admission.

          •  They were contraband ONLY if Cohen...... (0+ / 0-)
            tries to resell something of which he had no rights to resell.  Does any article prove that he tried to sell or enrich himself from the sale of anything that he did not have a right to sell?  Not from what I read.  We still don't know enough about the one where the staute of limitatuions had run out.  Again, Lexis-Nexis may have more soon.

            BushCo Policy... If you aren't outraged, you haven't been paying attention. -3.25 -2.26

            by Habanero on Fri Aug 25, 2006 at 08:28:05 PM PDT

            [ Parent ]

          •  Wouldn't more than one copy of any CD (0+ / 0-)

            be contraband? (depending on individual state law?)

            One copy = fair use. Two copies = intent to sell?

            And, admission that they are "illegal copies" may be enough to classify them as contraband. What legal use can "illegal copies" be put to?  

            I don't know the answers. I'm just asking. This whole situation isn't entirely clear from the reporting (newspapers). As you say, Lexus/Nexus may clear this up when the whole decision is available to review.

      •  Yes but.... (0+ / 0-)
        "A year later, Cohen was cleared of the seven criminal charges. The state dropped six of the charges because either the artists had permitted the recordings or, in one case, because the recording exceeded the statute of limitations."

        What was the relationship between the plaintiff(s) and the defendant?????

        We still don't know this. And the case law that could be set as precedent is very unfavorable to fair use.

        BushCo Policy... If you aren't outraged, you haven't been paying attention. -3.25 -2.26

        by Habanero on Fri Aug 25, 2006 at 07:59:27 PM PDT

        [ Parent ]

        •  I'm a bit skeptical of the reporting (0+ / 0-)

          Is this an issue of "bootlegs" as understood among music fans -- surreptitiously recorded concerts? (That's what your diary seemed to suggest.) Or does the court use the term to include copying commercially available disks?

          •  "surreptitiously" that is my point...... (0+ / 0-)
            several accounts say that Cohen had permission.  Why would the holder of the intellectual property permit this????

            BushCo Policy... If you aren't outraged, you haven't been paying attention. -3.25 -2.26

            by Habanero on Fri Aug 25, 2006 at 08:12:38 PM PDT

            [ Parent ]

            •  I've been to the store. (0+ / 0-)

              And without knowing the details of the case: it used to be a stereo and CD retailer, and built up a sizable used CD business that eventually predominated.

              I think we're talking about buying and selling used CDs. It's possible from the article text that the owner went to a few concerts and recorded them, and had hundreds of copies available for sale in the store. But if that's what they mean, the author can't write clearly.

              •  I am not sure that is the what happened, but.... (0+ / 0-)
                I will have to read more.  It is not possible to overdub a concert as a studio recording and vica-versa.  Pull out a good jazz CD, or even a rock & roll CD and listen for the background noise level.  There is no comparison.  If these were concert recording, even a tone-deaf supreme court justice could pick it out.

                Judges ARE NOT stupid.  

                BushCo Policy... If you aren't outraged, you haven't been paying attention. -3.25 -2.26

                by Habanero on Fri Aug 25, 2006 at 08:39:17 PM PDT

                [ Parent ]

              •  Gotta go. I'll read your reply later. (0+ / 0-)
                I've been up since 4:30 AM CST and I am tired.

                BushCo Policy... If you aren't outraged, you haven't been paying attention. -3.25 -2.26

                by Habanero on Fri Aug 25, 2006 at 08:57:53 PM PDT

                [ Parent ]

  •  Presumed guilty ... (0+ / 0-)

    is evidently the new standard ...

    4 July 2006, Independence Day ... Day 1757, A count worth keeping? Or, Osama Bin Forgotten?

    by besieged by bush on Fri Aug 25, 2006 at 08:05:32 PM PDT

  •  Not so. (0+ / 0-)

    This is about 1/3 story. Look at the Monitor links for more background.

    The NH Supreme Court is not generally considered reactionary, or one that kowtows to executive power.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site