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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
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.
Yeah, I don't think anyone would have figured that out minus your help. Thanks.
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.
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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
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.
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.
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.
Certainly. Send checks to her lawyers, earmarked for the Virgin v. Thomas case. Here is her lawyer's information:
Toder, Brian N., Chestnut & Cambronne, P.A. 204 North Star Bank 4661 Highway 61 White Bear Lake, MN 55110
Ray Beckerman +5 Insightful
This was one of the least of her worries.
She used an e-mail address that is the same e-mail address that she used for her screen name on a bunch of other sites. (Even match.com, which had her profile that was shown in court.) She also had one and only one computer on her network, and it was password-protected with a password that only she knew. (No "someone else was using my computer" defense.) The songs that showed up on KaZaa were, lo and behold, the exact same songs that were on her computer.
I mean, seriously, I can't think of any plausible defense that she could have had. When the judge decided to include jury instruction 14, where he said that making files available for download was infringement, that was it, game over.
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.