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Testimony Wraps In RIAA Trial
Eskimo Joe writes "A federal judge surprised observers in the Captiol v Thomas file-sharing trial yesterday by barring RIAA president Cary Sherman from testifying. 'After a brief recess this afternoon, plaintiffs' counsel Richard Gabriel and defendant's counsel David Toder made their cases before the judge as to the relevance of Sherman's testimony. Toder argued that Sherman's testimony was not relevant to the question at hand, the fact of whether Thomas was liable for copyright infringement. Gabriel said that Sherman would be able to tell the jury why this case was significant, and more importantly, describe the harm the RIAA believes piracy has caused to the music industry. "I don't want to turn this case into a soap box for the recording industry," Toder argued in response.' Testimony wrapped up today [Wednesday] with closing arguments expected Thursday morning." Ars has up a summary, filed a few hours earlier, of other testimony in the trial. The jury could come back with a verdict later today.
This whole seemingly systematic smackdown being applied by the judicial system to the RIAA on what looks like multiple fronts is really getting close to making me have faith in our judicial system again... almost.
I'm a fiscal conservative, it's a pity we don't have a political party anymore
I hope it's Capitol v. Thomas, not Captiol v. Thomas...I have no idea who Captiol is!
...this is as close as we're ever going to get to a judge issuing the almighty four letter STFU.
;)
However it's plenty good enough for me
1) We don't know how it's going to turn out. I think the RIAA has actually done the best job they could do to present their case. They have strong circumstantial evidence that this particular defendant uses the Kazaa user name in question, and that she was likely the only person using the computer. The standard in a civil case is proof by a preponderance of the evidence. That is to say, that it's more likely than not that she did what is claimed. It doesn't have to be lock solid, or beyond a reasonable doubt. On the flip side, the defense has also done an excellent job controlling who gets to testify, and appears to have argued for good jury instructions. The most important thing to come from this case may well be the "making available" jury instruction, as that will likely be a major issue for future cases.
2) This is going to be appealed. If the defendant wins, the RIAA will appeal. They have to. If the RIAA wins, I imagine the defendant will appeal so long as she can afford it. As likely, both sides will have parts of the ruling that they're unhappy with, and they will cross-appeal. This decision won't end the case.
It's a very interesting and important case. I look forward to more developments.
A. It is important to them because it may mean the end of them using shotgun tactics (hope to hit someone) to try and curb piracy.
B. It is important to him because they pay what I assume is a substantial salary to him, and he will not look good to the media companies backing him if revenue drops even further because they don't have money coming in from lawsuit settlements
C. They "believe" the piracy has caused harm. I've yet to see credible evidence that is has (at least using realistic numbers, instead of their inflated ones, plus I don't even really know if piracy is any worse than the tape swapping days). I believe that their methods have caused the Consumer and Taxpayers harm. Does that mean I can testify?
The lawyer was exactly right, as was the judge. It was not relevant to the question at hand, it would have been emotional rather than factual, and it would make the case an even bigger circus and soapbox. Plus, I want it to be our soapbox where we expose the RIAA for the slimy weasels they are.
Oh, and I don't like the RIAA, in case I hadn't made it clear yet.
The RIAA already had anti-pirating laws voted, so why would he have to testify that pirating is bad?
Probable answer: because thet cannot prove the guilt of the defendant so they tried to move the trial away from the determination of the truth.
It's called a victim impact statement. http://en.wikipedia.org/wiki/Victim_impact_statement It gives victims of violent crime the opportunity to let the court know how they were affected by the crime. It is given at sentencing after the verdict has been reached.
Letting the suit spout before the verdict is delivered (in a case that didn't involve violence) would be an abuse of process but hey this is the RIAA. The judge did the right thing. My guess is that if the testimony had been allowed, the resulting appeal would have been successful.
My theory is that one lawyer is 'spinning' the truth alot faster than the other. Therefor resulting in the major difference in elapsed time.
09 f9 11 02 9d 74 e3 5b d8 41 56 c5 63
Most casual users downloading music and video from p2p networks aren't looking for permanent copies they just want to listen to a track or watch a tv show so more and more people I know are now using websites for their music and video. youtube.com has a ton of deals in place for legal content sharing and for music imeem.com has advertising sharing deals with music industry titans like Sony, Warners and BMG. Why download when you can just go to a website, type in a band's name and instantly listen to their music for free?
Up for it.
The judge probably saved him from perjury.
If the defense doesn't succeed and "making available" becomes the standard for prosecution, I'm wondering what the limits will be.
I have a USB memory key that fits into an MP3 player. Back when MP3 players (and flash memory) were more expensive, I was able to buy the player for about $25 and use the 1GB memory key I already had.
I ripped a few albums onto the memory key and would listen to them on the plane when I was traveling. At a relatively low bit-rate, the MP3s took up very little space, so I just left them there as I used the memory key for moving data files to and from the clients I was working with.
At one point, I gave the memory key to a client to transfer a file. He took a long time to do it, so I checked back to see if something was wrong. I found him adding all my MP3's to his collection. I politely asked him to delete the files, and subsequently deleted the MP3's off my memory key.
So, did I "make [those files] available" to him by giving him a memory key that happened to have the files on it?
While I loathe the recording industry and hope they lose this case, I believe it may have been a tactical error on the part of the defense to object to this particular witness. Once on the stand, and after spouting of about damages to the industry as a whole, etc., it would then be the defense's turn. And since the subject matter of the whole industry had been brought up by the plaintiffs, the defense would be free to ask about the industry as a whole - for instance, what is the industrywide average revenue earned by individual artists on a CD sale? What are the terms of the industry standard contract artists regarding copyrights? Did the industry not collude to fix CD prices, as evidenced by their conviction in Federal court?
Oh yes - I think the jury would love to hear an industry representative answer questions about his industry.
"As God is my witness, I thought turkeys could fly." A. Carlson
Sadly, according to the update at the end of the Ars Technica article (see http://arstechnica.com/news.ars/post/20071004-debate-over-making-available-jury-instruction-as-capitol-v-thomas-wraps-up.html), the "making available" argument will be provided to the jury.
This is sad, because the "making available" argument has no basis in law except when a person is actively promoting infringement (see the Grokster case). There's no proof Jammie ever encouraged infringement.
Here's hoping that Jammie prevails!!!
Regards,
Art
Yes you did. We'll be contacting you soon.
- The RIAA
If brevity is the soul of wit, then how does one explain Twitter?
I am split on whether it would be better or worse for the defense to have Mr. Sherman on the stand. I mean, my legal experience is more-or-less limited to doing Mock Trial in high school, but even I can think of ways to absolutely shred Mr. Sherman on cross. Surely during direct the counsel for plaintiff would simply open the door for him to preach and then get out of the way. Mr. Sherman's rant would probably include the old favorites, like "Internet piracy is to the music industry what the Boston Strangler is to women" etc.
So on cross you take it all apart:
At that point, you've got him by the balls and can play it any way you like. I suppose Mr. Toder may not feel up to the task of going head-to-head with Mr. Sherman. Or maybe there is some calculation of legal risk that I am not seeing, e.g., Mr. Toder already feels like his case is in great standing, but I don't perceive that as an outside observer. I would have preferred to see all the RIAA bull trotted out and slaughtered in front of the jury.
Our intelligent designer has never created an animal that we couldn't improve by strapping a bomb to it.
Unfortunately, the record industry wants me to buy and buy the same music over and over again. That is not right and in fact is a form of usury and extortion.
Where is the scales of justice? Perhaps in someone's pocket.
My only regret: I can't buy music from new talent. Everyone seems to lose here (i.e., record industry, fans and musicians).
Don't get too excited.
Reading over the summary of testimony at Ars Technica, they have Jammie Thomas dead to rights. The fact is, she was downloading and sharing music over Kazaa, and unless the jury is made up of idiots, they're going to find for the RIAA.
The RIAA aren't idiots, they deliberately chose this case because it was extremely low-risk. They're looking to get some momentum back in their sue-everyone campaign, and by winning this case, they may very well do it. Of course, the down side is that if they had lost this case that is about as slam-dunk as it can get, they never would have been able to win another, period, but given how unlikely that outcome is, I think they acted correctly. ("Correctly" meaning in the interest of their idiotic short-term near-sighted goals, that is, not correct in a moral or ethical sense.)
I really kind of wish that Toder (Thomas's lawyer) had gone for jury nullification instead. He really didn't have that much to lose. Anyone remotely technically competent will know that she is guilty of infringement, and anyone who isn't remotely technically competent will believe so even more. At least with nullification, problems with the law itself could be addressed instead.
The BEST we can hope for out of this is that the jury awards the RIAA some token amount of damage like a dollar. Something that says that they are technically correct, but that the rules that they've exploited fly in the spirit of what the law is intended to do.
Please, don't be discouraged when Ms. Thomas loses this case. That's exactly what the RIAA wants to happen. Keep fighting the good fight, and hopefully someday, this stupidity will end. Just because they may win this battle doesn't mean that they have to win the war.
The question is not, "Should file sharing be ethical or legal" but "Did the defendant systematically violate the copyrights owned by the plaintiff?"
The law states that file sharing is copyright infringement. If they can prove she did it, or very probably did it, she's liable. That's all there is to it. The RIAA has a bunch of IP address data, and some username stuff, but they habeus no corpus because of a conveniently dead hard drive. The defendant is claiming that their data collection methods are shoddy, that the IP data is inconclusive, and that there is, in effect, no proof of infringement.
The whole trial (it being a civil trial) will come down to who the jury likes more.
Arguing the constitutionality of copyrights applied to music, etc, would have to go to the Supremes, which would involve a case where someone actually admits to doing the filesharing, and argues that it's a constitutional right, and that the laws against it should be ruled unconstitutional. Since admitting to doing the sharing is silly since you're far more likely to get off by denying it, no one (to my knowledge) has yet tried this method.
ad logicam Claiming a proposition is false because it was presented as the conclusion of a fallacious argument.
You "politely asked him to delete the files?"
I imagine he looked at you like you were from another planet, and politely told you where you could put that memory stick. Or at least, I hope he did. What harm does that do to you?
To fight the war on terror, stop being afraid.
It just makes the RIAA look like greedy "evil businessmen" and can sway the jury a bit. It would be one thing if she hadn't bought all kinds of CDs, but she did.
Jury could well feel that "hey, they made their money off her already." Combined with their position that all copying is theft, they really look bad. None of this paints the RIAA in a favorable light as victims needing to be made whole, it makes them look like just flat out greedy evil bastards. Juries tend to hate greedy evil bastards.
They allege files were available from a certain IP address, that's it. They have not established that anyone else ever downloaded anything from her. They haven't established that *she* uploaded anything.
At best they could accuse her of making *one* illegal copy. Every "download" is a separate individual that is making their own copy, is a separate instance. She didn't burn 1,000 cds and distribute them, for free or for profit. And every person who downloaded any file ever had no previous knowledge whether what they were downloading was as advertised or was actually a copyrighted work. At best, they could only have that knowledge after they downloaded whatever file they downloaded. And they could only know something was copyrighted if they had secondary knowledge that the file was copyrighted.
All you'd have to do is switch the content of different copyright files with the titles of those files, and every copyright holder attempting to police their content would be downloading copyright works by other copyright owners.
Screen shots of file titles aren't proof of file contents.
IP addresses aren't proof of specific individual action. If a friend borrows your car, with or without your knowledge and commits a bank robbery with your vehicle, you are not liable for bank robbery.
If you boot your computer you are not responsible for all executable commands which occur as the operating system loads. You are not responsible for the effects malware programs have. You are not responsible if your computer is hacked and used as a bot.
In short, the RIAA has no specific proof against any specific individual. Hopefully, her attorney point blank asked the RIAA on cross examination if they ever saw the individual in court uploading or downloading any files from any computer. Then your closing argument is a repetition of one asked question with the answer "No."
This is why copyright will be shown to be more and more ridiculous on the internet. Suppose you were to make videos of yourself reading a book? Violate copyright? Then how about schoolchildren reading out loud in class? How about sharing a book in class? How about the teacher copying a problem example from a book on a blackboard? On an overhead projector? "Making available" is a legitimate fair use.
There's no many convoluted twisted knots of logic in the copyright system that all you have to do is pull a few of their strings to unwind the whole "intellectual property" thing.
Was any of this "evidence" show for the jurors? Were all of the alleged
So I ask anyone who was at the trial? WAS A SINGLE SONG PLAYED AS EVIDENCE?
From an article:
This would tend to prove that the CDs were ripped, and not copied from another hard drive. 15-20 seconds? If they are normal 128kbit MP3 quality, the files are around 5 megabytes. If your hard drive can only copy at 300 kilobytes per second, you need another hard drive. Also that wouldn't account for the extended gap between CDs. If she was copying files from another hard drive, there should be no extra gap. The expert said that speed of ripping wasn't possible, so the defense went on to demonstrate the ripping of a CD and timed it. They came up with 2:36.18, the plaintiff's attorney objected saying it was over 4 minutes. He ripped another coming up with 2:17.71 (the reporter timed this one too and got 2:18.97), and the plaintiff's attorney objected again saying it was over 3 and a half minutes. I hope the jury "got" this. If an "expert" f-ed up this badly, I would disregard everything he said on the stand as unreliable.
Small point.
If you WERE in the trial you wouldn't even be allowed to read the article summary.
So unless you are saying that you would make a very bad juror, it goes without saying that you aren't one.
Take note, those who would use the wireless defense:
So, you'd need to be on the same subnet as your wireless router and have a random MAC address - no, not random, but a pseudo random address that could be a legitimate issued address that a wireless stumbler might use. Psuedo random username too. Oh, and if the script that does this is found, then that could indicate intent. Also you'd need dual level encryption to be able to represent that some other contents - which you will be forced to reveal - are the actual current contents of your hard drive, and update the fake contents on a regular basis, just for show.
Not nearly as easy to blame it on an ordinary wireless user as I thought it was. The malicious hacker who hijacks your computer only to share your music is less believable.
Those are my principles. If you don't like them I have others. -Groucho Marx
There are a lot of people saying she is guilty. I don't necessarily buy that from an objective point of view according to what I have read of the trial summaries.
Starting from the beginning, the RIAA would have to prove:
1) They own the copyright to the songs in question.
2) Somebody besides MediaSentry downloaded the songs in question.
Pretty basic. The RIAA case is as follows:
1) The defendant had Kazaa installed
2) She used the same username elsewhere so it had to be her
3) Some sort of magical evidence stating only one MAC address used that cable modem.
4) MediaSentry downloaded the songs in question
5) Piracy is a big financial problem for the music industry
The defense has pointed out
1) The expert witness testimony is boring and questionable at its most basic foundations.
2) Primary prosecution assumptions are blatently wrong.
3) RIAA copyright paperwork is not in order.
4) The defendant spends a lot of money on music.
I know we aren't going for "reasonable doubt", rather a "preponderence of evidence". From the basic summaries, I have a hard time even seeing a preponderence of evidence. From what I remember from other RIAA readings, their song selection is music that I would question has ever been downloaded by an anonymous music searcher.
I also haven't read anything that says the RIAA went into how long the music was shared for. Was it shared for an hour or for 6 months? If it was an hour, I have to say that given the song lists, it is unlikely that anybody got the song. If it was 6 months then it is more likely, but then again, I have to go back to the basics and question whether or not they've provided a preponderence of evidence that someone downloaded those songs.
The fact that MediaSentry downloads don't count weighs very heavily, as does the fact there is a lot of technical information. When there's a lot of hard to understand technical information, you have to take the summarized results at face value and you have to consider the source. Given that the technical experts that the RIAA provided were weak under cross examination I don't think I would give them much weight.
In a jury room, I'm sure the question would come up - did she have Kazaa installed? I don't know. The boyfriend says she didn't. There is no evidence that she had it installed - just an expert witness who proved to be wrong about a few things. Can you really even objectively believe that the defendant had Kazaa installed? I suppose you can if you believe all the expert testimony, but I would be reluctant to believe all of it myself.
He copied those files without even asking my permission. If you don't understand why that's wrong, then I can't explain it to you -- because we are indeed from "different planets".
The jury found her liable for $220,000. $9250 each for 24 songs.
The Startribune is reporting the jury found the Jammie Thomas had willfully committed copyright infringement.
:P.
Sucks to be her. I hope she appeals and doesn't get a jury of backwater hicks this time. I'm from MN and can say that
http://arstechnica.com/news.ars/post/20071004-verdict-is-in.html
fter just four hours of deliberation and two days of testimony, a jury found that Jammie Thomas was liable for infringing the record labels' copyrights on all 24 the 24 recordings at issue in the case of Capitol Records v. Jammie Thomas. The jury awarded $9,250 in statutory damages per song, after finding that the infringement was "willful," out of a possible total of $150,000 per song. The grand total? $222,000 in damages.
> ... Somebody besides MediaSentry downloaded the songs in question.
... and the jury has rendered a verdict, mentioned on http://recordingindustryvspeople.blogspot.com/.
The jury instructions included the "making available" argument. That is, that no, they didn't have to prove that someone other than MediaSentry downloaded the songs.
The forces of established capitalism won this round.
And owes the RIAA $222,000. About $9000 a song. http://minnesota.publicradio.org/display/web/2007/10/04/downloadingday3/
She owes $220,000
http://recordingindustryvspeople.blogspot.com/2007/10/riaa-wins-in-first-ever-jury-trial.html
It is the 21st century and the time for Klax has passed.
We lost.
I read lots of articles about this trial but what are the facts, and most importantly, how did the RIAA obtain information on this citizen? How did they get access to her hard drive? What did she do to make herself vulnerable. Most of the literature about these sorts of cases write about how the defendant "downloaded" and that was their crime, but isn't the truth that the RIAA can only take action against people who make files available for download? If I download a file from an RIAA server, it might be that I'm doing something legitimate with it, like using it to make 30 second samples or testing to see if a file made available violates copyright. So isn't the crime here the "providing of files?"
The flag just makes more sense than the constitution. - Judas Gutenberg
Well, all my homemade pornography is labeled "Weezer - Buddy Holly music vid" etc. So my anti-piracy stance helps me yell at people who want to copy it.
Also, yes, since I post on Slashdot, you may safely assume I am the only one appearing in my homemade porn.
Your ad here. Ask me how!
Investigators for the plaintiffs provided jurors evidence that the IP address (a number assigned to a subscriber connected to an Internet Service Provider), a modem Media Access Control address and Thomas' username all link her to the pirating.
Pretty strong evidence, lets take a look at the defense...
Toder has also suggested that computer hacking or IP spoofing could as explanations. Spoofing is someone pretending to be somebody else by taking over their IP address.
As I assume most slashdotters know, IP spoofing is a "blind attack" it would be impossible to pull off connecting to kazaa, and then share files using her IP. As for computer hacking, it would be very easy to find a virus or rootkit upon examination of the HDD. A simple Virus Scan and a check of the MBR would find 99% of virii/rootkits, yet no direct evidence was presented.
It's one of those rare cases that even though the RIAA is still a group of douchebags, they are right. My question is how did they come up with $222,000 of damages? Using an iTunes estimate she would have had to upload ~224,242 songs, or at 4-5MB/file, almost 1100 GB worth of data.
If i had one dollar for every brain you dont have, i would have $1.
Regardless of the legal implication, the moral implication is that a greedy middle many who produces very little itself, has taken $220,000 from someone in a way I do not believe to be right. I shall no longer be purchasing any capitol records nor their parent company EMI.
"There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy."
I understand it pissed you off. But really, anything on my flash drive (especially anything on a flash drive I intend to hand around at any point) that I consider in any way to be secret or private is encrypted. I doubt you're the copyright holder of the music files you copied to the flash drive either, and if I hand a drive with several songs on it to someone to copy a file off, I figure they'll probably copy any music they like while they're at it.
To fight the war on terror, stop being afraid.