[DMCA-Activists] R. H. Phillips Confronts BMI and the Election

[Seth Johnson]

Below is Mr. Phillips' account of his victorious fight with BMI. 
See also:

> http://web.northnet.org/minstrel/release.htm
> http://web.northnet.org/minstrel/first.htm
> http://web.northnet.org/minstrel/second.htm
> http://web.northnet.org/minstrel/kretsinger.htm

How to Remain Independent in the Music Business, and Why You
Should:
> http://web.northnet.org/minstrel/indie.1.htm


Indications are that this guy's analysis of the 2004 election in
Ohio will be a significant part of a major lawsuit being brought
there.  See below for his affidavit on Ohio and his table of
contents page with links to his analyses, including a private
investigation he conducted in his areas of expertise,
geomorphology.  Here are the links to his affidavit and his table
of contents:

> http://web.northnet.org/minstrel/supreme.htm
> http://web.northnet.org/minstrel/alpage.htm


Seth

---

> http://web.northnet.org/minstrel/bmi.1.htm


HOW ONE INDEPENDENT MUSICIAN DEFEATED BMI

© 2003 by Richard Hayes Phillips


It was Memorial Day, and I had just finished the most successful
stand of my career on the fringes of the music business.  I had
been playing acoustic music at a restaurant in the Hudson Valley
for almost a year.  I was their house musician, appearing on
holiday weekends and whenever there was a special event that drew
hordes of tourists to the town.  I knew that I was in some kind
of trouble when the owners, Joe and Kim, asked me to step
outside. They did not appear to be angry with me.  If anything,
they seemed about to cry.  “We’re going to have to stop the music
for now,” said Kim.  Then she asked me if I had ever heard of
BMI.  I knew that BMI is a worldwide publishing empire that,
along with ASCAP, owns the performance rights to “virtually”
every song published in the United States.  I also knew that
their ubiquitous agents demand and collect licensing fees on an
annual basis from owners of restaurants, coffeehouses and bars
where copyrighted music is performed.  “But I didn’t sing any
cover tunes,” I protested.  “I just played a four-hour concert of
all original and traditional material.”  “It doesn’t matter.  BMI
is demanding a license even for Irish music,” said Kim.  “We
never heard of BMI before.  We don’t know anything about it. 
Would you take care of this for us?”  “I’d be happy to,” I
answered.  “I know the origins of every song that I sing.”  I
hoped that BMI would concede my right to sing original and
traditional material, and that I would get my job back. Stunned,
in shock, I sat down to eat my grilled salmon salad, the best
thing on the menu.  I told a friend what had happened, and I
asked him: “What does BMI stand for, anyway?”  “World
domination,” he said.  BMI also stands for “Broadcast Music
Incorporated.”  I found this out when Joe brought me a copy of a
letter he described as “threatening.”  The letter advised Kim of
her “need for a BMI license.”  It claimed that “whatever music
you perform to benefit your business, its public performance
requires a license.”  It specifically mentioned Irish music. 
This was not just one little irate BMI employee trying to make a
name for himself.  The letter was written by Craig Stamm,
Director of General Licensing at BMI headquarters in Nashville.

I had seen references to ASCAP and BMI on covers of record albums
since the early sixties.  I had no idea who they were until the
mid-eighties when I encountered frightened restaurant owners in
the Connecticut River Valley. Many of them had received letters,
phone calls, or personal visits from agents of BMI or ASCAP
(American Society of Composers, Authors and Publishers).  They
were told that if any musician ever sang even one ASCAP or BMI
song on the premises, they would have to buy a license or be
subject to an exorbitant fine.  ASCAP was founded in 1913, and
BMI in 1938, in order to collect royalties on behalf of
songwriters and composers whose works are publicly performed. 
They sell blanket licenses, on an annual basis, allowing the
performance of any song in their catalogues of representation. 
The reasons are obvious: it would be far too cumbersome for the
promoter to track down every composer to whom royalties should be
paid, or for the composers to track down every promoter who owes
them money.  But the licenses are not cheap.  The cost depends
upon how many musicians are playing, how often they  play, and
the maximum allowable occupancy under local fire codes.  Federal 
copyright law provides for fines of up to $30,000 for each
copyrighted song performed without a license, and up to $150,000
if the infringement is willful, plus attorney’s fees.  This
provision would seem to violate the Eighth Amendment under which
“excessive fines” are prohibited.  Not wanting my employers to
become embroiled in lawsuits or shakedown operations, I stopped
singing “cover tunes,” that is, songs written and copyrighted by
somebody else.  I have been a songwriter and a traditional singer
since the early seventies, which left me with a vast repertoire. 
In fact, it gave me a competitive advantage.  I could walk into a
restaurant or coffeehouse that had never hired a musician before,
and assure them that if they were to hire me and nobody else,
they would not need to purchase a license for live performances
from ASCAP and BMI.  In this way I found steady employment as the
“house musician.”

I encountered the same situation in San Diego in the
mid-nineties.  I found only two profit-making enterprises whose
owners were not afraid of ASCAP and BMI agents.  Naturally, they
became two of my favorite places to play.  The Inner Change
Coffeehouse was legendary as a proving ground for
singer/songwriters.  Jewel Kilcher was discovered there.  The
owner simply chased away ASCAP and BMI agents, correctly pointing
out that they were not at all interested in supporting the
struggling musicians who performed at her coffeehouse.  I recall
having heard only one “cover tune” sung there, by an otherwise
all-original rhythm and blues band.  They sang “Mustang Sally,”
and the audience had a wonderful time singing along with the
refrain: “ride, Sally, ride.”  Presumably those at NASA and
elsewhere who sang these words when the astronaut Sally Ride was
orbiting the earth were equally guilty of copyright violations. 
Mikey’s Coffeehouse was more imaginative in their approach to
ASCAP and BMI agents.  They posted signs saying: “ASCAP will not
let us pay musicians.”  And they rented the stage for one dollar
per night. In this way it could not be said that Mikey’s was
giving the musicians anything of value for their services.  They
were on their own to busk for tips and to hawk their CDs.  The
owner, of course, was as much at liberty as anybody else to tip
the musicians and to buy their recordings.  These two
coffeehouses inspired me to write one of my best satires: “Ballad
of the ASCAP Agent.”  It was such a hit at the Inner Change that
I performed it, by request, three times in one concert.  When I
sang it at Mikey’s, people laughed out loud and asked me if the
song was copyrighted.

Actually, all my songs are copyrighted, without assistance from
ASCAP or BMI. It’s easy to do.  Just fill out a form, write a
check for $30, and send a copy of the work to be copyrighted. 
These days the forms are available online at
http://www.copyright.gov/forms.  Form TX is for literary works,
and Form SR is for sound recordings.  I copyright an entire
cassette or CD at a time rather than pay $30 every time I write a
song.  I specify for each track which of the following I am
copyrighting:  words, music, arrangement and/or performance.  I
state on my CD covers that my recordings are copyrighted in my
name.  All rights reserved.  This means exactly what it says.  As
the exclusive owner of the copyright, I enjoy the exclusive right
of public performance and, BMI notwithstanding, the exclusive
right to profit from their performance.

ASCAP and BMI will tell you it is foolish not to join their
organizations, because you cannot collect royalties unless you
do.  But the truth is that unless you are famous, you are
unlikely to collect any royalties even if you do join.  The
distribution of royalties is based upon airplay.  ASCAP secretly
tapes about 0.1% of all radio broadcasts each year, and only 1%
of the sampled hours come from public radio stations.  BMI uses
radio station logbooks to determine who gets royalties.  Owners
of performance venues are required to pay licensing fees even
though none of the money will ever go to those who wrote the
music being played on their stage, unless it is also being played
on the radio.  Little wonder that many owners regard ASCAP and
BMI as shakedown operations.  Some have sworn to me that ASCAP is
the Mafia.

ASCAP and BMI also consider the playing of a recording in a
public place to be a “public performance,” and they demand
licensing fees for this as well. They used to demand licensing
fees for playing the radio or television until 1998, when Sonny
Bono succeeded in passing the “Fairness in Music Licensing Act”
exempting businesses with little enough floor space and few
enough loudspeakers.  ASCAP and BMI can demand licensing fees
even for the performance of works whose authors are dead.  Under
current law, copyright protection lasts for the life of the
artist plus 50 years.  For a corporation, a copyright lasts 75
years.  Every time that valuable copyrights are about to expire,
the entertainment industry lobbies for an extension.  In some
cases there are identifiable heirs and descendants to receive the
royalties.  But I have to agree with Pete Seeger on this one:
“The grandchildren should be able to find some other way to make
a living, even if their grandfather did write ‘How Much Is That
Doggie in the Window?’”  It is my intention to will my copyrights
to the public domain, but I will not be around to see if my
attempt is successful.

According to Copyright Law, one cannot take the text of a work in
the public domain and copyright it.  There may be a valid
copyright if there is a similar work in the public domain.  These
are called “derivative works.” They are not wholly original in
the sense that they sprang in their entirety from the author’s
mind.  But the alteration was the result of original thought and
therefore may be copyrighted.  However, the public would not
thereby be shut off from the use of the work in the public
domain.  A song in the public domain remains there forever.  One
can take the text and tune of a work in the public domain and
copyright the arrangement and performance. “Sloop John B.” is a
good example.  The song first appeared in Carl Sandburg’s
“American Songbag,” a book of traditional folk songs.  Sandburg
was one of many persons who devoted themselves to collecting and
preserving the traditional folk music of the English-speaking
world.  The song was recorded by Harry Belafonte, and later made
famous by the Beach Boys.  Brian Wilson composed magnificent
harmonies and had every right to copyright his arrangement.  But
he never claimed to have written the song.  I sing “Sloop John
B.” to an African kalimba.  Clearly that is my arrangement, and
it is copyrighted.

The unfortunate truth is that anything can be copyrighted, at
least for a time.  Unlike the United States Patent Office, there
is no one in the Copyright Office to verify the originality of
the work to be copyrighted. However, I know of at least one
federal case in which the court ruled that if the antiquity of a
song can be proven, the copyright fails.  John and Alan Lomax,
who also devoted themselves to collecting and preserving
traditional folk music, took the controversial step of
copyrighting in their own names the songs they collected, as if
they had written the songs themselves.  They even copyrighted
original songs collected from other singers, such as Leadbelly’s
“Good Night Irene.”  This prompted Leadbelly to add a verse to
"De Ballad of De Boll Weevil":

     If anybody axes you who it was dat wrote dis song,
     Tell ‘em it was a black-skinned nigger wid a pair o’ blue
duckin’s on.
     If anybody axes you who it was dat copyrighted dis song,
     Tell ‘em Alan Lomax and his goddamned father John.

Peter, Paul and Mary claim authorship, not merely the
arrangement, of at least ten traditional folk songs on their
first three albums alone.  In most cases they have changed the
titles, and in some cases they have rearranged the lyrics.  In
all cases I have seen older versions of the same songs in print. 
I, too, have taken liberties with traditional folk songs.  On one
of my recordings, “Foote Loose,” there are four renditions in
which I combined lyrics from two or more versions of the same
folk song.  But I do not claim authorship of these songs.  I have
copyrighted the arrangement and performance only.  Anyone who
wants to sing these words has my blessing.  I have encountered
restaurant and coffeehouse owners who will not allow traditional
music to be performed on their stages, for fear that some ASCAP
or BMI writer or publisher has copyrighted an arrangement of the
song, or even the song itself.  These fears are not unfounded,
and the oral tradition, by which these songs have been
transmitted from generation to generation, is thereby stifled.  I
have carefully preserved over the years photocopies of nearly
every traditional song in my repertoire, in order to prove their
antiquity.  Suddenly, BMI was forcing me to do just that.

Five days after losing my job at the restaurant I wrote a letter
to Craig Stamm, Director of General Licensing at BMI headquarters
in Nashville.  I explained that all of my repertoire consists of
original or traditional material, and therefore no BMI license is
required.  Regarding his written assertion that a BMI license is
necessary to perform Irish music, I said: “BMI did not ‘bring
their music’ to the United States.  Traditional music was brought
here from the old country by the settlers themselves.  It is
overreaching to assert that ‘whatever music you perform to
benefit your business, its public performance requires a
license.’  BMI does not own my original compositions or my
arrangements of traditional music.  It is beyond my comprehension
how BMI could propose to deliver royalties to the authors, or to
the descendants of authors, of traditional music.  The authors
are unknown.  If you have objections, please name the songs that
you believe are not traditional, and I will show that they are.”

After two weeks I had received no response, so I talked to BMI
personnel on the telephone.  I was told that the burden of proof
is on the business owner to examine a list of 4.5 million songs
in the BMI catalog and to prove that none of these songs have
been performed.  I was asked how I know that no musician at the
restaurant was performing “licensable BMI music.”  I answered
that I am their only musician.  I was asked how I know that the
songs I sing are not “licensable BMI music.”  I answered that I
wrote them myself.  I was told that if the songs are copyrighted,
the rights are owned by ASCAP or BMI. I answered that I
copyrighted them myself, without assistance.  I wrote again to
Craig Stamm.  I recounted the telephone conversations, and I
asked for “a statement, in writing, that I am at liberty to
perform my own songs, copyrighted in my name, and traditional
folk songs, in the public domain, anywhere I want to, whether or
not the venue has a license from BMI.”   I continued:  “If I
cannot get such a statement from BMI, then I will have to seek
such a statement from the courts.”  I received no written
response from BMI.  When I spoke to Craig Stamm directly on the
telephone and asked again for such a statement, he said: “We’re
not going to give you that.”

An ASCAP employee, “very high up” in the organization, was told
of my situation and, at first, was not at all sympathetic.  “This
story does not sound right,” he said.  “ASCAP would not be able
to sue the establishment for not paying performance royalties
without the cooperation of the songwriter.” I assured him that
the story was true.  “Perhaps BMI does not play by the same
rules,” I said.  “They were demanding money from MY employers for
MY performance of MY songs.  BMI certainly did not have the
cooperation of the songwriter.  It was BMI that was guilty of
copyright infringement, and their actions meet the legal
definition of extortion.”  He gave a rather flippant response,
which he later retracted:  “If the fees paid by a club to ASCAP
members for the use of their copyrighted music are enough to
drive that nightclub out of business, then that club was
teetering on the edge of insolvency anyway. ... The average fee
for an ASCAP blanket license for a bar or restaurant is about
$500.00 per year. ... It's funny how some bar owners are willing
to pay for everything they use, except for the music, which is
why many people come there in the first place.”  Actually, the
owners of the restaurant refused to buy a BMI license for live
performances not because they were “teetering on the edge of
insolvency.”  The restaurant is a success story, having grown
from an ice cream parlor to a lunch and dinner restaurant.  They
have the largest wine list in the Hudson Valley, and they also
own a liquor store.  They refused to buy the license because they
had no live performers who were singing or playing any ASCAP or
BMI material.  That the license is cheap enough to be affordable
is beside the point.  I can afford to pay more taxes than I do
without falling into bankruptcy, but why should I pay what I do
not owe?

Moreover, ASCAP has horror stories of its own.  In 1995 ASCAP
sent letters to 6,000 summer camps, including the Girl Scouts,
informing them that they had to pay royalties for “public
performances.”  Copyright law defines a “public performance” as a
place “where a substantial number of persons outside of a normal
circle of a family and its social acquaintances is gathered.” 
ASCAP did not specifically say that it wanted to charge for
singing around the campfire, but the damage was done.  For ASCAP
it was a public relations disaster.  And some Girl Scout leaders
are still afraid to sing “Puff the Magic Dragon.”  In 1992 an
ASCAP undercover agent caught a piano player at a New Jersey
restaurant playing George Gershwin’s “Rhapsody in Blue” without a
license.  ASCAP sued the restaurant and settled out of court for
$5,500. ASCAP has been known to threaten legal action for the
singing of “Happy Birthday.”  How do they know?  Harvey Reid, a
musician based in Maine, explains it well.  ASCAP and BMI have
field agents on payroll who listen to the radio and watch the
newspaper listings.  When a new venue starts offering live music,
an agent will either show up in person or write a letter
demanding money for the license.  “If a nightclub or even a store
refuses to buy the license, then ASCAP or BMI will hire spies,
often local music teachers or semi-professional musicians who
will make notes and testify in court as expert witnesses that on
a certain date at a certain time a certain song was indeed
played. ... Note that even though the musicians or the employees
decide what is played it is the owner of the establishment where
the music is played who gets sued.”  To see the full text of
Harvey Reid’s article, “ASCAP and BMI: Protectors of Artists or
Shadowy Thieves?” go to
http://www.woodpecker.com/writing/essays/royalty-politics.html.

I was well aware that few, if any, have ever won a lawsuit
against ASCAP or BMI.  But I am not easily intimidated.  I
researched 63 years of copyright case law and began contacting
attorneys.  Many were willing to talk with me. But none were
willing to take the case.  Every lawyer I talked to urged me to
look at RICO, a federal law which stands for “Racketeer
Influenced and Corrupt Organizations.”  The actions of BMI,
demanding money from my employers for my performance of my songs,
appear to fall within the definition of extortion as incorporated
by RICO: “the obtaining of property from another, with his
consent, induced by wrongful use of actual or threatened force,
violence, or fear, or under color of official right.” Under case
law, it does not matter whether the attempt was successful;
attempted extortion is extortion.  Knowing that making a federal
case out of this would be expensive, stressful, and
time-consuming, I sought help from elected Democrats and liberal
groups.  I was turned down by Senator Charles Schumer, Senator
Hillary Clinton, New York Attorney General Eliot Spitzer, the
American Civil Liberties Union, the National Lawyers’ Guild, and
Volunteer Lawyers for the Arts.  Then, on New Year’s Eve, I
received a letter from Congressman John McHugh (R, NY).  

At first I thought it was a bulk mailing.  I was irritated to
receive it from a politician who had not even answered my
inquiry.  I was in for a surprise. Congressman McHugh had
forwarded my letter to the United States Copyright Office and had
elicited a response from Marilyn Kretsinger, Assistant General
Counsel.  I should not have been surprised.  John McHugh had
stood up for north country artists before, and no doubt he will
do it again.  Marilyn Kretsinger upheld each of my contentions. 
In her words, “BMI has the authority to issue a license only for
those songs that are in its catalogue of representation.”  If the
performance venue does not “publicly perform songs represented by
BMI,” then a BMI license is not needed.  She further stated: 
“With respect to the musical compositions that Mr. Phillips has
authored, no performance license is necessary since Mr. Phillips
is the copyright owner of those songs.”  With respect to
traditional folk songs in the public domain, if I am “not
performing a copyrighted arrangement of a public domain folk
song, then a BMI license is not required.”

The opinion has far-reaching implications for independent
musicians and for the entrepreneurs who hire them.  No venue is
in need of a performance license unless one or more of its
musicians are performing compositions or arrangements copyrighted
and licensed through ASCAP, BMI or SESAC.  The copyright owner
enjoys exclusive performance rights and, therefore, the exclusive
right to profit from their performance.  The point is so obvious
that it has never been litigated, which makes this a landmark
decision.  The full texts of the Copyright Office opinion and all
related correspondence are available online at
http://www.northnet.org/minstrel, Appendix BMI.  But I never did
get my job back.  The restaurant owners have decided not to have
any live performances or to play any recorded music.  To them it
is not worth the hassle.  The customers must settle for radio and
television.  And I have not found such a lucrative job since. 
Such is the legacy of BMI.

For another exposé on ASCAP and BMI see "All Shook Down," by Joe
Pastoor, in Rake Magazine, at http://www.rakemag.com.

---

> http://web.northnet.org/minstrel/supreme.htm


OHIO RECOUNT
        
AFFIDAVIT
December 10, 2004


I, RICHARD HAYES PHILLIPS, do swear and affirm the following:

1. I hold a Ph.D. in geomorphology from the University of
Oregon.  I am a professional hydrologist and am well versed in
standard techniques of statistical analysis, with special
expertise in spotting anomalous data. A copy of my curriculum
vita is attached to this Affidavit as Exhibit A.

2. I have analyzed unofficial precinct level results from the
November 2, 2004 general election in nine Ohio counties,
including Cuyahoga, Franklin, Warren, Butler, Clermont, Miami,
Montgomery, Hamilton, and Lucas.  In have compared these results
with those from the November 7, 2000 general election where such
data is available.  I have examined the unofficial and official
results for the November 2, 2004 election, county by county.  I
have examined, in Franklin County, data on the number of voting
machines deployed in each precinct.  I have also examined United
States census data for 2000 and 2003.

3. There are numerous examples of incorrect presidential vote
tallies in certain precincts in Cleveland, Cuyahoga County. 
These irregularities include at least 16 precincts where votes
intended to be cast for Kerry were shifted to other candidates’
columns, and at least 30 precincts with inexplicably low voter
turnout, including 7.10%, 13.05%, 19.60%, 21.01%, 21.80%, 24.72%,
28.83%, 28.97%, and 29.25%, and seven entire wards where voter
turnout was reportedly below 50%, even as low as 39.35%.  Kerry
won Cleveland with 83.27% of the vote to 15.88% for Bush.  If
voter turnout was really 60% of registered voters, as seems
likely based upon turnout in other major cities of Ohio, rather
than 49.89% as reported, Kerry’s margin of victory in Cleveland
has been wrongly reduced by 22,000 votes.

4. The systematic withholding of voting machines from
predominantly Democratic wards in Columbus, many of them with
high black populations, severely restricted voter turnout in
these wards and cost John Kerry 17,000 votes.  I have
meticulously compared election results with the number of
registered voters per voting machine for each precinct in
Columbus, and for each ward in Franklin County.  In Columbus, the
median Bush precinct had a 60.56% turnout, while the median Kerry
precinct had only a 50.78% turnout.  County wide, the 73 wards
with fewer than 300 registered voters per machine had a 62.33%
turnout; 58 were in the suburbs, and 54 were won by Bush.  The 73
wards with 300 or more registered voters per machine had a 51.99%
turnout; 59 were in Columbus, and 58 were won by Kerry.  In
addition, there were 68 machines not provided to anyone,
according to data provided by the Board of Elections.

5. It has been widely reported that in Warren County, the
administrative building was locked down on election night and no
independent persons were allowed to observe the vote count. 
Based upon the official Board of Elections reports, there has
been a 15.51% increase in voter registration in eight months
time, and voter turnout was reportedly above 80% in 55
precincts.  Since the 2000 election, voter registration was
reportedly up by 79.0%, 38.3%, 32.4%, 31.0%, 29.7%, and 28.4% in
six townships that provided 68.75% of Bush’s margin of victory in
Warren County.  While the county population has increased by
14.75% since the 2000 census, 87 of 157 precincts had shown
declines in voter registration at other times since the 2000
election, and yet every single precinct, 157 of 157, showed
increases in voter registration since March 2, 2004.  In Butler
County, there are nine precincts and two entire townships where
Kerry received fewer votes than Gore despite a sharp increase in
voter turnout; and there are precincts with reported increases in
voter registration, since November 7, 2000, of 177.9%, 143.5%,
69.3%, 65.5%, 64.5%, 48.2%, 43.3%, 38.8%, 36.9%, 34.3%, 34.0%,
and 33.8%, compared to an increase in population of only 3.12%
county wide.  In Clermont County, where the population has grown
by 4.39% since the 2000 census, voter registration was reportedly
up by 85.4% and 67.6% in two precincts, and down by 49.4% in
another precinct, all in the same township; there were 23
precincts where turnout was up, but Kerry got fewer votes than
Gore.  All these data are indications that votes may have been
shifted from Kerry to Bush. According to the official results
certified by the Ohio Secretary of State, these three counties
combined provided Bush with a plurality of 132,685 votes, which
is 13,910 votes more than his statewide plurality of 118,775
votes.  Given that George Bush carried these counties by 95,575
votes in 2000, the net loss for John Kerry could be as high as
37,000 votes.

6. It is my professional opinion that there is compelling
evidence of fraud in Miami County.  Early on election night, when
31,620 votes had been counted, and later, when 50,235 votes had
been counted, John Kerry had exactly the same percentage, 33.92%,
and the percentage for George Bush was almost exactly the same,
dropping by 0.03%, from 65.80% to 65.77%.  The second set of
returns gave Bush a margin of exactly 16,000 votes, giving cause
to question the integrity of the central counting device for the
optical scanning machines.  Compared to 2000, voter turnout
increased by 20.86%, while the population increased by only
1.38%.  Voter turnout was reported at 98.55% and 94.27% in two
precincts in Concord, numbers nearly impossible to achieve. 
Voter turnout was reported to have increased by 194.58% and
152.78% in two precincts in Troy compared to the 2000 election,
and by more than 30.0% in ten other precincts.  There are no data
for voter registration in 2000, so the ballots cast offer the
only meaningful comparison.  Comparing the results of the 2004
election to the results of the 2000 election, there is one
precinct where the reduction in turnout exactly matched the
reduction in votes counted for the Democratic presidential
candidate.  It is my professional opinion that these numbers are
fraudulent, in that the true election results have been altered. 
Given that Bush officially carried Miami County in 2004 by 16,394
votes, and that Bush carried Miami County in 2000 by 10,453
votes, the net loss to John Kerry could be as high as 6,000
votes.

7. In Toledo, Lucas County, there were 50 precincts with less
than 60% reported turnout.  All of them were won overwhelmingly
by John Kerry, by a margin of better than 5 to 1 in the
aggregate.  There were 45 precincts with more than 80% reported
turnout; 12 were won by Bush, 33 were won by Kerry, and most were
competitive.  When the precinct numbers are combined into totals
for each ward, data not provided by the Board of Elections, a
clear and unmistakable pattern emerges.  The 14 wards with the
highest reported turnout were won by John Kerry by a margin of 11
to 7 in the aggregate.  The 10 wards with the lowest reported
turnout were won by John Kerry by a margin of 6 to 1 in the
aggregate.  It is my professional opinion that the election in
Lucas County was rigged, most likely by altering the vote totals
in each ward by a percentage chosen for that ward, plus or minus,
based upon voting patterns in past elections.  If turnout in
Toledo had been as high as that reported elsewhere in the county,
John Kerry’s plurality would have been 7,000 votes larger.

8. There are still 92,672 uncounted votes in Ohio, exclusive of
any uncounted provisional ballots.  According to unofficial
results provided by the Ohio Secretary of State, there were
5,574,476 ballots cast, and 5,481,804 votes counted, which leaves
92,672 regular ballots (1.66%) still uncounted.  The official
results, now certified, do not include these ballots, but differ
from the unofficial results only in the addition of provisional
ballots and some absentee ballots to the tally. In Montgomery and
Hamilton counties, these uncounted votes come disproportionately
from precincts that voted overwhelmingly for John Kerry.  In
Montgomery County there are 47 precincts, all of them in Dayton,
where the percentage of uncounted ballots is 4% or more.  Kerry
won all 47 of these precincts, by a margin of 7 to 1 in the
aggregate. County wide in Montgomery County, the percentage of
uncounted ballots was 1.70%.  In Hamilton County there are 26
precincts, 22 of them in Cincinnati, where the percentage of
uncounted ballots is 8% or more. Kerry won all 26 of these
precincts, by a margin of 10 to 1 in the aggregate.  Altogether
there are 86 precincts in Cincinnati where the percentage of
uncounted ballots is 4% or more.  Kerry won 85 of these
precincts, by a margin of 5 to 1 in the aggregate.  County wide
in Hamilton County, the percentage of uncounted ballots was
2.34%.  Although I have not yet had time to examine similar data
for Cleveland, Columbus, Toledo, Akron, Youngstown, Canton, or
elsewhere, it is possible that the same pattern will emerge in
these cities as well.  If these 92,672 uncounted votes were cast
for Kerry by a 5 to 1 margin, this would reduce the statewide
margin between the candidates by another 61,781 votes.

9. There are still provisional ballots uncounted in Ohio.  On
election night the Ohio Secretary of State reported that
5,481,804 ballots had been counted, and 155,428 provisional
ballots had been issued.  According to the official results, now
certified, 5,625,621 votes have now been counted, an increase of
143,817, which represents the number of newly counted ballots. 
Some of these were absentee ballots.  The reported count of
provisional ballots was 79,482 for Kerry, and 61,505 for Bush.
This would leave 14,441 provisional ballots uncounted.

10. In summary, it is my professional opinion that John Kerry’s
margins of victory were wrongly reduced by 22,000 votes in
Cleveland, by 17,000 votes in Columbus, and by as many as 7,000
votes in Toledo.  It is my further professional opinion that John
Kerry’s margins of defeat in Warren, Butler, and Clermont
counties were inflated by as many as 37,000 votes in the
aggregate, and in Miami County by as many as 6,000 votes. There
are still 92,672 uncounted regular ballots that, based upon the
analysis set forth above of the election results from Dayton and
Cincinnati, may be expected to break for John Kerry by an
overwhelming margin.  And there are 14,441 uncounted provisional
ballots.

11. My research into the topics discussed in this affidavit is
continuing, and I reserve the right to modify my conclusions as
new information becomes available.

TO THIS I SWEAR AND AFFIRM,

___________________________________

Richard Hayes Phillips, Ph.D.

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TABLE OF CONTENTS

OHIO RECOUNT:
CUYAHOGA COUNTY DISCREPANCIES
OPEN LETTER TO CAMERON KERRY
JOHN KERRY CONCEDED TOO SOON
A SUMMARY OF WHERE WE STAND
STEALING VOTES IN CLEVELAND
STEALING VOTES IN COLUMBUS
FAVORITISM IN THE SUBURBS
VOTER TURNOUT IN WARREN COUNTY
ELECTION RESULTS IN SOUTHWESTERN OHIO
UNCOUNTED VOTES IN MONTGOMERY COUNTY
UNCOUNTED VOTES IN HAMILTON COUNTY
HACKING THE VOTE IN MIAMI COUNTY
HACKING THE VOTE IN LUCAS COUNTY
AFFIDAVIT TO STATE SUPREME COURT
STUFFING THE BALLOT BOX IN TRUMBULL COUNTY
UNCOUNTED VOTES IN STARK COUNTY
UNCOUNTED VOTES IN CUYAHOGA COUNTY
UNCOUNTED VOTES IN SUMMIT COUNTY

INFORMATION:
RESUMÉ
BIOGRAPHY
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RICHARD'S CD PLAYLISTS:
< SNIPPED FOR BREVITY >

RICHARD'S LYRICS AND POEMS:
< SNIPPED FOR BREVITY >

TRADITIONAL BALLADS:
< SNIPPED FOR BREVITY >

APPENDIX BMI:
HOW ONE MUSICIAN DEFEATED BMI
COPYRIGHT OFFICE RULES AGAINST BMI
WATERTOWN DAILY TIMES ARTICLE
LETTER FROM BMI TO SCHEMMY'S RESTAURANT
FIRST LETTER TO BMI
SECOND LETTER TO BMI
LETTER TO CONGRESSMAN McHUGH
OPINION OF COPYRIGHT OFFICE
HOW TO REMAIN INDEPENDENT

APPENDIX WIPP:
TRUTH ABOUT WIPP GEOLOGY AND HYDROLOGY
KARST AT THE WIPP SITE
PHOTOGRAPHS OF KARST NATURE TRAIL
CARLSBAD CURRENT-ARGUS ARTICLE
WHY WIPP POSES A THREAT TO MEXICO
POR QUÉ WIPP PRESENTA UNA AMENAZA
PROOF OF FALSIFIED EVIDENCE