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.

Comments

ummmm Tasty...

[Churla]

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.

Uncertain either way

[radarjd]

Ars has had really good coverage on the whole trial -- one of their reporters has been there the whole time. I think there are a couple of things to keep in mind:

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.

Re:Uncertain either way

[neoform]

Even if the RIAA wins, they will have to prove damages. That's another game entirely.

Re:Uncertain either way

[jedidiah]

Not really.

They've only established that they could personally commit an act of computer
tresspass and take files off of her machine. They have not established that
anyone else ever downloaded anything from her. They have not established that
she pirated the music files that were in her possession.

Infact, she was able to document a VERY robust music purchasing history at Best Buy.

At worst, they could demonstrate that she's the sort of person that would spend money
like a drunken sailor at Best Buy and then go home and offer all of the CD's she bought
online.

Modern software has taking something along the lines of putting up an 80's era pirate BBS
and turned it into something completely automated, completely casual and something that
the clueless could do by mistake.

Intent certainly hasn't been established, even if they did manage to prove that she had
a copy of Kazaa on her computer.

Re:What are the limits on "making available"?

[ptbarnett]

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.

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?

Re:WTF?

[norminator]

My favorite part about that was this exchange:

"Is it still your testimony that the music on the defendant's computer was copied from a hard drive?" asked Toder. "Given new versions of software, you could rip this fast," conceded Jacobson.
Would newer, more bloated ripping software have any chance of ripping faster? Are there any newer, enhanced "ripping technologies" that they didn't have in earlier versions of WMP, iTunes, etc.? I know the guy is A) talking out of his butt, and B) trying to pretend that maybe it wouldn't have been possible to rip that fast back when the "offense" occurred, but shouldn't the lawyer at least be required to admit that the evidence not only showed that it was possible that all those tracks were ripped from CDs, but actually proved that they were ripped from CDs?

(The evidence being the time stamps on the mp3 files, which, for tracks from the same album were marked 15-20 seconds apart, followed by a bigger space of time before tracks from the next album... if they were all copied from another hard drive, as the guy claims, and which shouldn't be an offense anyway, then all the timestamps would be much closer together, with no larger gap between tracks from different albums.)

Is it really better?

[Wylfing]

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:

• You base your claims of harm from piracy on empirical research, correct?
• So surely you know that there have been many impartial studies that show piracy is not, in fact, harming the music industry?
• (Sherman gets evasive. Will witness please answer the question, yes or no. He opts for what he sees as the lesser of two evils and says No.)
• Oh, you don't know that? Given that your responsibilities as RIAA president involve making statements to the public that can affect the share price of RIAA member companies, wouldn't it be your job to be aware of all the available research?
• (Sherman gets evasive again. Will witness please answer the question, yes or no. It doesn't matter which way he answers. If he says No, then we get to explore why he ignores scholarly research on the subject. If he says Yes, then we also get to explore why he ignores scholarly research on the subject.)

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.

More on the moronic plantiff's "expert"

[jgoemat]

From an article:

Once cross-examination began, Toder started asking Jacobson about things such as MAC address spoofing, cracking, P2P pollution, and multipeer contamination, intimating that one of those things could have been in play when Media Sentry detected the shared folder at the IP address in question. He then questioned Jacobson about his assertion that the music currently on Thomas' computer had to have come from a hard drive and announced that he wanted to demonstrate to the jury that it was possible to rip CDs as quickly as the timestamps from the forensic examination showed (the timestamps were approximately 15-20 seconds apart with a longer 30- to 45-second gap between CDs).

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.

Re:Don't get your hopes up

[hgriggs]

> either way she has a huge CD collection

A couple hundred cds is not a huge CD collection. A couple thousand CDs is a big CD collection, 10,000 CDs is a huge CD collection. A couple hundred CDs is just a few songs.

Re:There's a place for such testimony

[DDX_2002]

You do realize this is a civil suit and not a criminal case? Victim impact statements are used in criminal cases and the laws that create them are intended to give the victim a chance to speak and be heard - which is important because they're not a party to the litigation and wouldn't otherwise have any right to be heard. It is not, after all, The Victim vs. The Accused in a criminal case, it's The People, or the State, or The Queen(depending on the jurisdiction) vs. The accused. Prosecutors fight cases and seek justice on behalf of the sovereign for a breach of the sovereign's laws - that breach may have injured someone, but that's beside the point, really. Even in the area of criminal law, there are many types of crime where you have to prove damage/injury- theft (show deprivation), agg assault/assault causing bodily harm (show the victim was wounded/maimed/caused serious bodily harm, as the case may be), or more obviously, murder and manslaughter (prove the victim is dead - no dead body, no prosecution).

There are, broadly speaking, two issues in every civil suit: quantum/remedy and liability. Quantum means, what is the appropriate remedy (usually money) to right the alleged wrong; liability is, is the defendant actually responsible, legally speaking, for the loss? Generally, in civil suits, you do the quantum and liability issues together in one trial unless the parties have already settled that issue, which isn't uncommon. In many car accidents the insurance company will admit their insured driver screwed up but denies to the bitter end that the plaintiff suffered whiplash thereby; in other cases, the parties agree that the deal falling through resulted in a certain value of loss to the plaintiff but don't agree that it was the fault of defendant's breach of contract. When nobody admits anything, you have a full blown, knock down drag out trial.

So, the place for telling the court about the damages you've suffered in a civil case is very much before the court enters judgment, not afterward. You can't succeed in negligence without damages. You can't win in misrepresentation/fraud without showing you actually relied upon the misrepresentations of the defendant, and moreover, that you relied on them to your detriment. There are a great many types of suit where if you don't prove you were damaged, you can't win your case. Here, damages doesn't just go to quantum, it's a key issue in liability too.

To digress further, there are also some claims that require no proof of damage - these usually involve intentional torts (assault/trespass) and the court considers the affront to your personal integrity/property rights to be worthy of remedy regardless of any damages... though the remedy they give you may not cover a venti starbucks if the court thinks you're being a litigious prick and wasting everyone's time over a trivial affront. De minimis non curat lex, after all. In some suits, like copyright infringement cases, there may be statutory damages set out in the law - usually because it is almost impossible to quantify the loss but the state believes there is a loss and that despite the difficulties of proof society would be better off by the creation/enforcement of that type of lawsuit and encourages it by creating statutory damages without the plaintiff having to actually prove they were injured.