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Verdict Reached In RIAA Trial
jemtallon writes "The jury in the previously mentioned Captiol v Thomas story has reached a verdict. They have found in favor of the plaintiffs, Capitol, and ordered that she pay a $222,000 fine for 24 cases of copyright infringement."
Unfortunately inevitable, since there was really no defense contesting of the network forensics, or that the username in question just happened to be the same as the defendent's accounts on many other networks, that the system in question was connected to her cable modem, and using her IP address.
Without such defense, a simple "preponderence of the evidence" (the criteria for a civil case) was inevitable.
Test your net with Netalyzr
I wonder if she'll be allowed to pay the settlement like the recording industry did theirs. In unpopular CDs that cost pennies to make but apply to the fine at retail price.
"Common sense will be the death of us all"
I've always believed, naively perhaps, that juries usually got it right. How freaking brain-dead do these people have to be? $220K for 24 songs? That's $9250 per song! That's substantially more than what the RIAA was claiming they lost on each instance (unless I mis-remembered?).
For music.
This jury of 12 idiots decided to ruin someone's life for 24 songs. Great going, guys.
Frankly, as much as I loathe the RIAA, Thomas' story simply didn't hold up. The prosecution was able to prove that in an attempt to evade prosecution, she had replaced her hard drive shortly after receiving a warning notice from the RIAA, not before as she claimed.
It's a shame that the defendant of this first RIAA jury trial turned out to be a liar with a bogus defense. But apparently, that's who she was. Given the facts brought out in the case, I don't see how the jury could have found for the defense.
I challenge Slashdot to boycott the US recording and movie industry... either that or stop whining...
Whereas in Soviet Russia, fiction is intellectual property. Oh wait...
(This post was written by a would-be novelist, but is 59,970 words too short to qualify as a novel.)
The amount awarded per song ($9250) is downright ridiculous
Not many people know this, but that's the price they originally wanted to charge per song on iTunes.
The theory of relativity doesn't work right in Arkansas.
Prosecution:
...her user name, IP address, Modem MAC address, pass-word-protected computer, and the songs in the shared folder matched her musical tastes.
...Thomas replaced the hard drive in her computer two weeks after an investigation. Defendant:Tried to get the RIAA president to testify, who has nothing to do with the facts of the case.
...There could have been a computer party at Thomas's home or someone could have been outside her window with a laptop.
...suggested that computer hacking or IP spoofing could as explanations. The RIAA had facts, and the defendant had excuses. I know everyone wants to defend the little guy, but please pick a better case than this one to represent the people. The only thing I see odd here is the fines. THAT is ridiculous.As the RIAA lawyer stated. I agree. A few generations ago people quite happily made their own, and played it for the enjoyment of their family and friends. If you believe, as I do, that music is an essential part of what it means to be human I strongly encourage you to get out and make some. Give it away. Invite your friends to listen. Bring your instruments to Slashdot parties. Whatever it takes. Just don't *buy* any from the current music cartels.
Boycott the record companies into extinction.
Somewhere along the line people who are capable of being artists (i.e. each of us) were reduced to being "consumers". It's time we stop just accepting this as a matter of course.
I don't think this is the first case where the RIAA was challenged. The RIAA lawyers are just smarter about dropping cases they don't have a good chance of winning rather than risk legal results that could set bad precedence (from their perspective). I've read tons of stories on slashdot about dropped lawsuits or settlements after filing--we don't typically hear what the settlement terms are, so for all we know some of those settlements could be slaps on wrists depending on how good the RIAA case is.
I do agree though that this reaching verdict is unfortunate for those who want to challenge the RIAA. It would be better if verdicts came out against the RIAA.
We can sit around in forums, yapping non-stop about how horrid the RIAA is, or we can really begin to take the fight to them. I think it's time we do that. Let's do everything we possibly can to tarnish their reputation. Sadly, despite treating consumers like crap, a lot of music fans still follow them around like puppy dogs. A good starting point is to target Youtube. Universal Music Group has an account they use to post videos of their artists. These music videos can be rated. Comments can be left for them. Let's all go there and give them the lowest rating possible. Let's fill the comments section with relevant information about the unethical tactics groups like the UMG are using against consumers. If they play dirty, it seems MORE than fair that we RETURN THE FAVOR. Why should we respond to them with kid gloves? They certainly wouldn't do that for us.
It's a civil case.
It's a civil case.
How many more times?
How we know is more important than what we know.
I doubt the jury thinks that, because I suspect the jury is made up of a representative cross section of society, the vast majority of which do not use or run P2P software to exchange music rips.
It's surprising how many people on Slashdot thinks everyone does it. Mention Kazaa to the average non-geek, and most go "Huh".
On a separate note, congratulations to Sharman Networks for standing by this woman and offering to pay the fine she's incurred using Kazaa for its intended, advertised, purpose.
You are not alone. This is not normal. None of this is normal.
Anyone who uses TOR for file sharing is either maliciously or negligently engaged in the destruction of the network. TOR cannot handle file-sharing loads. The most that TOR can handle is control communications (like tracker communications in BitTorrent). If you actually start passing data transmissions through it, you'll kill its usability.
You're better off using a P2P program that's designed to hide your activity than slapping TOR over one that isn't designed for it.
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
1. Juries generally take the damages amount suggested by the plaintiff in a civil trial. Most people have no idea how much a random tort is really worth and just take their word for it.
2. Juries in America are specifically picked to exclude anyone in the slightest bit knowledgeable about the activity in question (to avoid both bias and to avoid questioning the testimony of expert witnesses due to -- right or wrong -- assumption about the dispute in question), and they are picked to avoid people who have done similar crimes in the past (again for bias reasons).
Pretty much the only people in America who haven't downloaded a song illegally are people who thing it's inherently immoral or unethical. These people would not be sympathetic to the defendant.
Now we get to see where this goes on appeal.
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
The law allows for a much higher award per song for willful violation. The $9k was well below the midpoint. Compensatory damages replace the actual damages and punative damages are meant to punish the violator.
I think that juries hate to be lied to. She clearly came across as a liar. I suspect there had to be a better defense. Such as admitting to downloading a few songs but not understanding that her music would be uploaded.
> "Don't do the CRIME if you can't pay the FINE !!"
Kevin Smith on Prince
I think relating digital assets that can be copied indefinitely for free to someone's computer or cannabis is a bit misleading. The argument that can be made is that she 'stole' the revenue they may have made by selling her or the people she shared the music with the songs.
Somehow 24 songs shared to some unknown but probably reasonably small number of people translates into $222k in damages? Considering a song is $1 on iTunes, she'd have to share each song to over 9000 people to cause that much in lost revenue (not that the full $1 goes to the record companies, but we can pretend...). At the low end, a song might be 2 megs? So she'd have had to share nearly half a terrabyte to accomplish this. That's a lot of data for 24 songs!
Not more than you need, just more than you want
If you could "take" my computer, pot, food, books, or anything I own by easily making your own copy at essentially no cost to you in money or time - meanwhile leaving me still in possession of the things you copied, I'd not only be ok with you doing it, I'd encourage you.
As a matter of fact, cannabis, like all plants has its own cool built-in sharing mechanism. Seeds.
This space available.
... as soon as the judge backtracked this morning and ruled that "making available" was adequate evidence to demonstrate a violation of the copyright holder's rights. From Ars:
"Instruction no. 14 proved to be a sticking point, as Thomas' counsel Brian Toder told Ars tonight that the judge's proposed instruction indicated that the plaintiffs must show that an actual transfer took place in order for there to be a finding of infringement. "
Later, the judge reversed his opinion, at which point I knew this was over, but was at least still hopeful that the damages would be somewhat reasonable.
According to the coverage at Ars, it was pretty clear that the RIAA had found the right person; they had used this same account name for an email address that a witness had verified was hers. The only remaining question in my mind was how well the making available argument would hold up before a jury. Unfortunately, it appeared as though the defense didn't focus any attention on this critical part of the prosecution's argument (until the 11th hour when the judge was deciding what instructions to give the jury for deliberations). Had the defense been pounding the drum of "making available is not provable infringement" instead of "let me show you how fast you can rip a CD", then this jury (and perhaps even the judge with respect to the jury instructions) may have been compelled to decide differently.
In any event, it is what it is. The RIAA set their desired precedent, but for me there are still a couple of lingering questions:
1. Is this really a good thing for the RIAA? I mean, we've heard about the lawsuit threats against dead people, grandmas, and kids, but now there is an actual verdict in a jury trial that pins a $220K judgment against a single mother. I have this feeling that this case is going to make much greater waves in the main stream media then the no-go lawsuit threats (dismissed with/without prejudice) or the tens of thousands of settlement cases. Because of this I also think there is a huge potential for blowback on a large scale, not just in the geek circles.
2. Does the judge have any discretion to lower the damages? It seems as though he's given the defense every opportunity to succeed, from the "this courtroom is not your soap box" comments to the RIAA, to initially requiring evidence of a file transfer actually taking place in the jury instructions. If he does have discretion, I would be surprised if he didn't use it.
All in all, this is a sad situation. Single mother, probably with little to no idea what she was doing, targeted by the RIAA, then levied with enough fines to ruin her life. The RIAA, a lawsuit happy organization continuing to rob artists, consumers, and own our government, are having a champagne toast tonight thanks to their victory in court today. Enjoy your victory, and as far as "setting a precedent," you should be careful what you wish for.
She'll have no choice but to file bankruptcy and have this discharged. This is a clear case of the punishment not fitting the crime. Maybe her attorney will give her a break on the fee to file Chpt 7.
The other thing to remember is that, if you want to illegally download songs:
a. don't use a swarming protocol like Bit Torrent (not a good choice for small files anyway) and,
b. make sure you're a leecher (not lecher, as I assume most Slashdotters already are.) As I understand it, all these cases have come about from the people making files available, not the people actually downloading them.
The higher the technology, the sharper that two-edged sword.
"This is what can happen if you don't settle," RIAA attorney Richard Gabriel told reporters outside the courthouse.
Notice how they throw in an impassioned plea to roll over and take it? This court case is nothing about justice - it's an extension to their protection racket. (quote from here)
When, oh when, will somebody step in and nail these guys with a RICO suit?
Weaselmancer
rediculous.
Yes, Edgar Bronfman, The Warner Music CEO said he was certain his kids downloaded music. But don't worry, he gave them a stern lecture about the music they downloaded... so they won't do it again.
I keep hearing about this process and I don't understand why the bright people on /. don't get a clue.
The ONLY thing the morons at RIAA will ever understand is a cash flow interruption. But to make this work, everyone has to be in on it. No file sharing, turn it all off for one week, no music purchases of any kind, turn off the radios, don't listen to any form of recorded music.
It's not a hard thing to imagine. Maybe the better thing to do is to stop being a consumer and start being a creator. Get an instrument and make your own music!
Then you can give it away on KaZaa.
So if you get upset about what RIAA does to protect their cash flow, get off your butt and stop playing their game. Start playing a new game. Make your own music.
And quit whining about RIAA. There are bigger issues ahead beyond "I can't listen to what ever music I want. I must be entertained at all times."
That said, I sincerely doubt the RIAA will ever see a penny of it. You know she's going to file Bankruptcy (Ch 7, IIRC, the one where you don't have a re-payment plan, because no way is she going to pay TWO-HUNDRED TWENTY THOUSAND DOLLARS back in 20 years, let alone the ~5 a Ch 13 is for.).
... this isn't about a redress of grievances. It's about deterrence, about control, and I'm sure they're feeling like they just did one hell of a job justifying their salaries right now. On the other hand, whether this judgment will have any effect whatsoever the level of illegal downloading is another story. It might even make the problem worse: I know I'm feeling like grabbing a couple of tunes just for spite.
And you know what? I doubt they care even a little bit. See, and that's the thing
The higher the technology, the sharper that two-edged sword.
Ever ripped a CD? You might as well have.
The moral of the story? THE RIAA IS SCARED STUPID. She had 400 CDs at one point!!!!!!! They just sued the shit out of one of their best customers!
Fuck these people. Hey, I just 'stole' a CD. Yep, I got a perfect digital copy of the recording and the recording industry didn't get a DIME. Know what I did? I bought a USED CD! Roll up a hondo and snort that Sony.
So that's the moral of the story. BUY USED MUSIC. Hey, old vinyl is cheaper than iTunes and sounds better too. It's the best way to 'steal' from the music industry because it's 100% legal, and it robs them of a sale from a person WHO IS ACTUALLY WILLING TO PAY MONEY FOR THE MUSIC.
If you're a musician, record yourself, it's far easier than it ever was. Then sell your own stuff through iTunes or something if you want to get paid. You don't need these people unless you want them to pay for publicity or your recording (but they'll just take it out of your check anyways).
It sounds way better than mp3, it's cheaper, and best of all you'll be doing YOUR part to help kill the record industry!
Because they're just going to make their money on lawsuits instead? Lawyers aren't like musicians, they aren't going to get stars in their eyes and let the record companies rip them off- they expect to get P-A-I-D. High priced corporate lawyers trying to squeeze blood out of a few radishes is a scare tactic, it belongs in the advertising budget.
So that makes no sense. If you can really hit them in their bottom line by doing something everyone agrees is OK, then they have to take it and like it or do something really dumb like going after the secondary market.
But here's how you REALLY hurt the record companies... There are already places where you can take your album, sell it on itunes, and keep 100% of the royalties. That will fucking kill the record industry as long as these places:
.1. Make the product high quality (nice bitrate) and more convenient than piracy (super fast downloads, instant previews, incredible selection- so no waiting or hunting everywhere, and still no DRM)
.2. Charge a reasonable price that makes people feel like they got their moneys worth, especially compared to the hassle of stealing.
So you only need to make piracy inconvenient and charge based on the much, much lower costs of distribution rather than trying to keep it all.
If this exists, artists keep their work and their royalties and even if half their songs get stolen it's good advertising and they will still come out FAR ahead of the pennies-per-dollar contracts the majors sign people to (if they sign them at all).
Congratulations, they've won.
Not only do you think it is "illegal" to download music, but you've also taken the ridiculous position that there is anything more than a million to one chance that you will be one of the unlucky few to get noticed by these vultures.
I suppose you're afraid of terrorist attacks too.
How we know is more important than what we know.
The court of appeal does not re-try the facts.
The court of appeal is not interested in facts. It is interested in process - how the judge and jury came to their decision.
The appellant must make a clear and convincing legal argument that the trial judge made a fatal error. In the admission of evidence. In his instructions to the jury. Something of that sort.
Why does a musician need to make money hand-over-fist anyway? The whole modern model of producing and selling music is artificial and absurd anyway. I've gotten to where I never buy CDs anymore, and I never download music either. It's entertainment. You won't die without it. And, if organizations like RIAA weren't around, maybe there would be more regional differences in music again. You know. Culture. The thing that's missing today.
Similar to the upcoming US election results
Wondering if they'll mind if she pays with duplicated money.
She will go bankrupt and tell the RIAA to eat a dick, but they already knew that. They just want to get it in the paper, "Jury awards 222,000 to RIAA from single mother who shared mp3s online." That's all they're looking for.
The artists of songs that where infringed should find a nice lawyer to make sure they get their cut.
"Call us when the New age is old enough to drink" Beck
A verdict of $222,000.00, for infringement of 24 song files worth a total of $23.76?
In a case where there was zero evidence of the defendant having transferred any of those files?.
It is one of the most irrational things I have ever seen in my life in the law.
If the Judge doesn't set aside the verdict sua sponte, I expect there to be motion practice to set aside the verdict, based on its obvious unconstitutionality and numerous other reasons, and if that fails I expect there to be a successful appeal.
It is an outrage, and I hope it is a wakeup call to the world that we all need to start supporting the defendants in these cases, and the attorneys who are sacrificing so much to represent them. And the support cannot be with words, it must be with check books. And it cannot be next year, it must be now.
All the business people who make a living from the vibrancy, democracy, and freedom of expression which is the internet, need to get behind the RIAA's victims; if they do not, the world in which they hope to thrive and prosper will disappear rapidly.
The RIAA ghouls smelled blood in Duluth, and I guess they were right.
But it isn't over.
Ray Beckerman +5 Insightful
I mean who else could possibly get hurt buy killing off the media industries?
You seem to be missing the joke. Buying used CDs will not actually kill the record industry, any more than piracy will. But the record industry should and will eventually have to change, and it will ultimately benefit both consumers and musicians much more- but at the big boys' expense. This is because their primary role, putting physical discs on shelves, is no longer necessary. That's just how technology works, it changes things- but they want to blame something they think they have (some) control over.
When everyone has a huge hi-def screen connected to a ultra-high bandwidth connection, television companies and movie chains will no longer control distribution of content either. Everyone from Joe Schmoe to NBC will have their own spot on the dial. Movie theaters will have to get into the 21st century in a big hurry or they will be a thing of the past too.
The main thing that's happening is not piracy, that's a consequence of the technology but not the fundamental shift that these people most fear. They need to maintain their control of the distribution system far more than they need to contain piracy. Piracy can't get much worse in music and people are still making money. Piracy will always be a psuedo tax on any information industry but the real shift will be who makes the money.
You bash indie movies, music etc, but it's just a consequenece of lowering of the barriers to entry. The big boys can still play, and will still make whatever you're willing to pay for- they will just have much more competition. (That being said, big budget popcorn movies are definitely going to be an endangered species- mostly because video games will almost completely kill them. People will have to go back to telling stories.)
You complain, but you will love it. You're disrespecting indie music and movies because you have a preconceived view of them- you won't once more people like you start doing that stuff, and once technology makes creativity king once again. While high end equipment gets cheaper, better and more user friendly, people's ears and eyes will notice the high end less and less. When industries begin to mature, that's what happens.
So, now remind me... what part of musicians keeping more of their money and their rights is going to discourage them from producing good music again?
Actually bittorent is much better for this in my opinion since 1. RIAA can't see what else you got, so its one file at the time (or album or whatever), and 2. its much harder to actually claim you have shared a whole song since its usually pieces of file you share.
The Supreme Court has held several times that monetary awards must have a reasonable relationship to the actual damages to pass constitutional muster. They look skeptically at anything with more than a single-digit multiplier over actual damages--i.e. 5x actual damages might be ok, but not 10x, much less 1000x, actual damages. This has been used several times to reduce large punitive damage awards as unconstitutional.
To my knowledge several law professors are of the opinion that this line of argument has a decent chance of success in copyright cases, but it hasn't yet been tried.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
Paying the $70 isn't really a problem because part of the process of filing for bankruptcy is stopping making payments on all of your debts . If you do pay some of your debts the bankruptcy trustee will have to go and retrieve that money to distribute evenly among all of the creditors. The credit counseling specified for Chapter 7 will NEVER try to get you to pay some of your debts. It is simply to teach you how credit works so if you jump into credit you will do it with your eyes open.
The new bankruptcy law really doesn't change much of anything except for "The means test" and the previously mentioned credit counseling. The means test is just a formula they plug your numbers into to see if you can file or if you have to try to pay the credit card companies back as a Chapter 13 for an additional year.
The supposed "Reform" was bought and paid for by the credit card companies because apparently they needed the changes to keep from losing money even though they are insanely profitable. One thing they got was the minimum payments on your credit card is doubled so if someone might be having trouble making payments they now will certainly be delinquent and that will get the interest rate jacked up to 30%. (Thank god the government is helping us out like this!)
Actually, it will be automatically discharged, unless RIAA contests it in adversarial proceeding. If they wanted to be real pricks they could probably drag it out for some time. This is nothing new, Scientology has done it to a bunch of their critics.
That said, bankruptcy judges typically take a rather dim view of creditors that try to do this -- the whole point to bankruptcy is to give the honest person a fresh start (there aren't supposed to be debtor's prisons in the US). Besides which, the whole point of the RIAA suits isn't to collect money. It's to get the headline of "Jury awards $220,000 to RIAA for file sharing". There is exactly zero chance that they will ever collect any sizable sum of this money, bankruptcy or not. Take a look at OJ Simpson. How long has he dodged that judgment?
Filing for bankruptcy has become more difficultThat's a myth. It's become more expensive for those filers that retain an attorney, because of the new requirements imposed under BAPCPA. There's also the added cost of the required credit courses and consoling, but this is typically not a huge expense.
and the consequences more far-reachingAnother myth. The consequences of filing BK didn't change at all under the new laws. The only 'consequence' that changed is that you have to wait 8 years before you can file again, vs 6 years under the old laws. The biggest consequence of filing bankruptcy is that it goes on your credit report for 10 years. It's a myth that you won't be able to obtain credit after a BK. I'm two years from my Ch 7 and I have a car loan at 5.5% and $5,900 worth of credit limits. I could probably obtain more if I wanted to (why bother?)
It is not an easy way out.It is what it always has been -- a last ditch safety net for those with no hope of ever repaying their debts. Unless this woman makes a huge amount of income and can realistically pay this debt back in the next five years, this sounds like the perfect reason to file bankruptcy to me. With few exceptions (student loans, taxes, child support) we don't allow debtors prisons/debt slavery in the United States.
And yes, I've been through all of this. I filed Chapter 7 under the old laws. I still maintain a relationship with the attorney that did my case. I wound up becoming his computer consultant. He would be the first to tell you that not too much changed under the new laws. 95% of his clients are so deeply in debt that they qualify for a Ch 7 even after the "means test" imposed by BAPCPA. The image of scores of deadbeat debtors with the money to repay their debts abusing the bankruptcy system was nothing more then propaganda put out by the credit industry.
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
the problem is promotion, anyone can put thier songs on the web and put up a paypal link to pay for them and get a code to download them. Anyone can get thier tunes added to iTunes for a reasonable fee. None of that helps if noone outside of a few locals who have seen you in a pub gig knows they want your music. You need to get a LOT of sales to get enough money to give up your day job and that means you need promotion on major radio stations.
The way for an artist to make big money in the music buisness is to sign on with a record company, take thier promotion and then stay popular for long enough to get out of the "abusive" initial contract. After that they can either break out on thier own or get a much better contract with a record label. It is the staying popular that is the difficult bit, one hit wonders will never reach that point.
note: i'm known as plugwash most places but i screwd up registering that here somehow in the past and now can't register
Besides, I could write a client that keeps track of which pieces I downloaded from whom. A swarm of these clients could ensure they got full copies from each of the targets. More expensive in bandwidth and they'd have to be leechers (legally), but doable.
Slow down for a second. Is is the govs. fault that people use credit without thinking of the consequences? There are times where people have bad luck (medical for example) and I feel for them when they have to file for bankruptcy, etc... But people who spend way more than they make, drive cars they can't afford, and buy houses with IO loans I have no sympathy for. Raising the minimum payment on credit cards was actually a good thing for the consumer. Now they are forced to pay it off sooner than they would have otherwise.
Suck my cock, you fucking troll. Mighty big of you to pass judgment on me when you have no idea what forced me into bankruptcy to begin with. Ever stop to think that the leading cause of bankruptcy in the United States is medical debt? Yes, I learned my lesson -- next time I won't get cancer while between jobs with no medical insurance.
Two years ago I was hopelessly in debt. Debt that would take me 20 years to repay. Now I have almost $4,000 in my 401k, $3,000 in savings/short term investments. The car that you are passing judgment on me for is a fucking Suzuki Reno. Yeah, I'm living the high life with my $10,000 hatchback.
Bankruptcy is supposed to be a fresh start for the honest debtor that is so deeply in debt that it will take a literal lifetime to pay it off. My BK attorney had a general rule of thumb: If you owe 75% of your annual income in debt (not counting your mortgage) then you'll be paying interest for the rest of your life. By the time my medical bills were done with, I owed roughly 300% of my income in debts.
So, I'll say it again. Suck my cock you fucking judgemental troll. I deserve to get modded down to oblivion for snapping like this -- but you deserve to have the shit beat out of you by the Narn Bat Squad.
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.