RIAA's 'Misspeaking' May Have Affected Verdict

NewYorkCountryLawyer writes "David Kravetz of Wired.com covered last year's Capitol v. Thomas trial gavel-to-gavel. It's worth noting, then, his article saying that the RIAA's recent statement — that Sony's top litigation lawyer 'misspoke' during the trial. She said that making a copy from one's own cd is 'stealing', which (in his words) may have caused a major miscarriage of justice. Wired further points out that later on in the trial, during the RIAA's examination of Ms. Thomas, 'On the hard drive she [turned] over were thousands of songs Thomas said she ripped from her CDs. The RIAA's Gabriel suggested to jurors that copying one's purchased music was a violation of the Copyright Act. Gabriel, for example, asked Thomas whether she had ever burned CDs, either for herself, or to give away to friends.' Gabriel, the RIAA's lead attorney, apparently misspoke too — prejudicing jurors along the way."

Comments

Against Intellectual Property

[Anonymous Coward]

There's a great essay, "Against Intellectual Property," by Brian Martin at deoxy.org ( http://deoxy.org/aip.htm )

Martin attacks the very idea that intellectual products can be considered property at all: "The alternative to intellectual property is straightforward: intellectual products should not be owned. That means not owned by individuals, corporations, governments, or the community as common property. It means that ideas are available to be used by anyone who wants to." He demolishes many of the standard rationales for IP and cites many abuses of it, such as: "The neem tree is used in India in the areas of medicine, toiletries, contraception, timber, fuel and agriculture. Its uses have been developed over many centuries but never patented. Since the mid 1980s, US and Japanese corporations have taken out over a dozen patents on neem-based materials. In this way, collective local knowleilge developed by Indian researchers and villagers has been expropriated by outsiders who have added very little to the process.5
Vandana Shiva and Radha Holla-Ehar, "Intellectual piracy and the neena tree," Ecologist, Vol. 23 No. 6, 1993, pp, 223-227."

I recommend this essay highly.

Re:perjury ?

[palegray.net]

IANAL, but I asked this guy Google about it and he directed me to this site's page on the legal definition of perjury, and here are a whole lotta case files related to the issue. Some investigation might be merited.

DMCA.

[SanityInAnarchy]

Before the DMCA, I believe all of what you just described was acceptable as "fair use".

After the DMCA, it's still alright for actual CDs, but many other things (movies) are copy protected, and it is illegal to break copy protection for any reason.

Re:Can we define copyright as between two people?

[Tony Hoyle]

The problem with that is it breaks down.

I buy a CD, copy it, then some time later sell the original. According to your revised law I haven't broken the law even though 2 copies now exist.

Copyright law in most countries does make it illegal to format shift. I don't know how it is in the US but in the UK for example it's illegal to use a VCR to record a TV programme - however nobody ever prosecutes (because it would be silly) so the law is effectively meaningless.

Re:Unfortunately for Thomas, it doesn't matter.

[Steve1952]

Thomas has claimed on her website that her computer developed problems, and that she brought it in for warranty repairs months BEFORE she was notified that she had been targeted by the RIAA. It was her dealer that replaced the hard drive.

She also claimed this part of the story was not brought up at the trial. If so and if true, it seems to me that her defense attorney really dropped the ball here.

Bad Lawyers

[Doc Ruby]

If Thomas' lawyer didn't pick up that lie by Sony's lawyer to convince the jury that Sony would lie about consumer rights and RIAA rights, then Thomas' lawyer should be fired.

Thomas should get a new trial, with a new lawyer, and the two old lawyers should pay for screwing up the entire trial.

Re:perjury ?

[Original Replica]

can a lawyer be disbarred in the US for "mispeaking" under oath and saying something untrue about the legality of a defendant's conduct

While we are on it, can the Judge be dismissed, seeing as it is the Judge's responsibility to keep the jury properly informed about the law. From a website about jury duty: "It is your duty to accept what the Judge says about the laws to be applied to the case, whether you agree or disagree with the law." Now if the judge failed to correct the "misspeaking" of the Sony attorney, they the Judge implied that the Sony attorney was in fact correct, demonstrating gross incompetence on the part of the Judge as well. They should both be disbarred.

That explains THIS odd CNN video story

[antispam_ben]

Or at least partly. They confuse the issues so badly I didn't know what to think the other day when I first saw it. I'm not even sure if they're talking about the article story or not:
http://www.cnn.com/video/#/video/showbiz/2008/01/02/lklv.hostin.music.chetry.cnn

Re:Can we define copyright as between two people?

[Alsee]

[copying] of software code in RAM in order to run that software... is why software vendors are able to require "licenses" in order to use their software even if you don't copy the software.

Not true.

US law, Title 17 Section 117 explicitly states that installing software and running software do not constitute infringing copying. The European Union has an equivalent law, as does most ever other country on earth.

You absolutely positively do not need any sort of license at all to install and run software. Just as you do not need any sort of license at all to read a book. An EULA is a contract offer. You are perfectly free to decline that contract offer, and it is absolutely positively not copyright infringement to go ahead and install and run software anyway.

EULAs are contract offers, and publishers use a a few non-copyright based tactics attempting to corner you into agreeing to them. For example they try things like arguing "we printed on the outside of the box that there is a contract inside, and that by buying the box you are accepting the contract on the outside of the box saying that you accept the contract inside the box". And on that basis, it would be absolutely valid for the supermarket could sell you tomato with an EULA sticker on it. It would be absolutely valid for them to sell you a box of cereal with an EULA inside the box (thats one hell of a "secret toy surprise!" inside).

These alternate legal tricks attempting to trap you into an EULA are sometimes upheld in court, and sometimes tossed out on their ass in court. Legally, EULAs are a total crap shoot. But they are absolutely not legitimate upon any basis in copyright. Just because someone slaps the title "EULA" at the top of a contract offer does not mean that it is actually licensing you anmything under copyright law that you actually want or need.

About the only time you have an EULA that genuinely is licensing you valid useful rights under copyright is when some company buys something like a "site license" that allows them to buy just once physical copy and use that one copy to install onto five machines or onto a hundred machines or onto ten thousand machines. A license to create multiple copies is indeed copyright license.

-

Re:Can we define copyright as between two people?

[Constantine XVI]

In the US, Sony v Universal said that using a VCR for time-shifting (recording a program for later playback, even if years later) is fair use. As well, RIAA v Diamond (makers of the Rio MP3 player) ruled that it was legal to dump your CDs onto the Rio (format or space-shifting).

Re:Correct me if I'm wrong

[wenzi]

IANAL, but I do not think you are wrong. You have to destroy the 'fair use' copies once the original license is transferred to another parter.

Re:Can we define copyright as between two people?

[Anonymous Coward]

WRONG There is an implied license in the sale of a copyrighted work, which unless stated otherwise only gives you the right to read the book or run the software. In no way does the implied license give you the right to copy the work, and if there is a EULA the author is specifically granting a written CONDITIONAL license. If you decline this conditional license, then you have no right to use the software.

ENTIRELY WRONG. What you've described is what the supplier *WANTS YOU* to think, but it does not reflect the reality of copyright law whatsoever. If you have purchased a copy of the software through legal channels, you have full rights to run it without agreeing to any further terms. Full stop.

Every court in the world would endorse that simple matter of fact, because buying software has no purpose other than to be able to run it. You acquired the right to run it at the point where you handed over your money and were given the software. Any other software rights and/or obligations might be subject to legal interpretation (and often are), but that one is not, anywhere.

And in addition to being wrong, you also contradicted yourself, since in the quoted lines you first say that there is an implied license to run the software, and then at the end you suggest that there isn't an implied license to run the software because you can't run the software unless you sign the EULA. Did you even read what you wrote?

Re:Can we define copyright as between two people?

[10101001 10101001]

WRONG There is an implied license in the sale of a copyrighted work, which unless stated otherwise only gives you the right to read the book or run the software.

There is no "implied license" to read a book or run software. There is the innate property that possession of a copyrighted work allows one to read, run, etc that work. Further, copying is only nationally restricted under copyright law, for which fair use and/or existing statues within copyright (such as specifically allowing copying if it's necessary to use software, can reasonably be said to void any need for the copyright holder's approval in copying to use software. Further, perhaps you've not heard the story of First Sale Doctrine. Specificially:

In that case, the publisher, Bobbs-Merrill, had inserted a notice in its books that any retail sale at a price under $1.00 would constitute an infringement of its copyright. The defendants, who owned Macys department store, disregarded the notice and sold the books at a lower price without Bobbs-Merrills consent. We held that the exclusive statutory right to "vend" applied only to the first sale of the copyrighted work... -- Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908)

Ie, EULAs don't magically stick to software (or books) and magically override statutory rights. Offering "a way out" doesn't work any more than it'd be legal to try to force a contract to override legal statute; imagine the absurdity, for example, of trying to claim it were legal to offer a car which included an EULA that stipulated that the car manufacturer could commit identity theft on the owner without any resolution, but the owner could return the car to opt out of the EULA. Why would you think an EULA, even if agreed to, could remove or override in any way explicit statutory rights?

Re:perjury ?

[hr raattgift]

Firstly, this is a matter of civil law, rather than criminal law. The balance of power between juries and judges are dramatically different in trials at civil law than in criminal cases. More on that later.

In criminal law, in Canada, there is a real legal difference between a jury's refusal to convict an accused person at a criminal trial, and the U.S. concept of jury nullification. This is primarily due to substantial differences in case law which developed in the mid-to-late1800s in both legal systems which entrenched a right to make legal arguments to a jury, or to a judge in the presence of a jury which could form its own impressions of the arguments in the rendering of a verdict under certain circumstances (United States vs Fenwick 1836, Stettinius vs United States 1839 contra Games vs Stiles 1840, Sparf vs United States 1895). In the mid to late 20th century several cases in the USA upheld the jury's power to refuse to convict based on points of law, but hedged by restricting officers of the court from informing jurors of the power with the argument that it gives licence to jurors to disregard the law entirely in favour of deciding any individual case based on personal prejudices and feelings about the parties involved.

In Canada, juries have long been able to make strong (but not always binding) suggestions with respect to sentencing, if they choose to convict -- almost always this involves urging a lighter sentence upon the trial judge, often a conditional discharge. This is unusual in systems which inherited the English criminal justice tradition, but has had the effect of reducing even further the liklihood of a refusal to convict at all. As a result, there are only a handful of Supreme Court cases which have dealt with the issue directly.

R. v. Morgenthaler, [1988] 1 S.C.R. 30 is the culmination of appeals by the Crown against successive juries' refusal to convict Dr Morgenthaler in spite of what they believed was a clear cut case and clear instructions from the Judges. The decision confirms the right and moral duty of juries to refuse to convict when their consciences tell them otherwise; in their commentaries on the case history Dickson CJ, Lamer and Wilson JJ all made reference to the section 2(a) of the Canadian Charter of Rights and Freedoms (freedom of conscience) with respect to the actions of jurors, making it fairly clear that a jury's refusal to convict in the end was not sufficient reason to invalidate the outcome of a trial.

However, from the ruling:

Per Curiam: In a trial before judge and jury, the judge's role is to state the law and the jury's role is to apply that law to the facts of the case. To encourage a jury to ignore a law it does not like could not only lead to gross inequities but could also irresponsibly disturb the balance of the criminal law system. It was quite simply wrong to say to the jury that if they did not like the law they need not enforce it. Such practice, if commonly adopted, would undermine and place at risk the whole jury system.

Subsequent cases have followed this line: juries can refuse to convict, and that refusal is on its face insufficient grounds for appeal [R. v. Krieger, 2006 SCC 47, [2006] 2 S.C.R. 501], but at the same time judges are entitled to vigorously and forcefully instruct juries not to do so [R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3]: "The trial judge did not prejudice the accused's rights in replying to the question from the jury on whether it could offer input on sentencing. The trial did not become unfair simply because the trial judge undermined the jury's de facto power to nullify ... Guarding against jury nullification is a desirable and legitimate exercise for a trial judge; in fact a judge is required to take steps to ensure that the jury will apply the law properly."

As the powers -- and even the existence -- of a jury were claimed in the face of proper tyrants looking to jail or execute people for personal an

Re:But is it for the record?

[NewYorkCountryLawyer]

Now somebody gets it. That's the whole point of this debacle. If the RIAA misspeaks something often enough, and it gets into the record, it will make it easier to go after ALL iPod owners and anyone else walking down the street with an MP3 player and headphones. You're exactly right. And that is their strategy. And their strength is in the economic imbalance. The defendants can't afford to hire the type of legal representation they need, while the RIAA can spend hundreds upon hundreds of thousands of dollars in any given case. In Atlantic v. Howell they slipped in the language about ripping cd's to mp3's because Howell doesn't even have a lawyer, and they're hoping to get the judge to make a mistake.

Re:But is it for the record?

[NewYorkCountryLawyer]

RIAA's out of court comments aside, is this not something that could be cited in a future case? I mean, RIAA did prevail in the case, all testimony is kept on record, and unless the verdict is overturned, the lawyers comments will be a future quotable. I am dubious of RIAA's intentions and it is not out of this realm to imagine some exploratory litigation. Good question. Actually, the RIAA companies will NOT be able to use the transcript of Jennifer Pariser's testimony -- it is just out of court hearsay -- but WE, the defendant's lawyers, can use it, to show that Jennifer Pariser and SONY BMG are dishonest, do not take seriously the sanctity of an oath, will stop at nothing, and are ignorant of copyright law.

Just had to smile.....

[NewYorkCountryLawyer]

when I started imagining what's going on over there in RIAA-land right now between Jennifer Pariser, the head of litigation at SONY BMG, and Cary Sherman, who has publicly gone on record as saying that Ms. Pariser "misspoke" under oath.

what is a "digital audio recording device"

[Grampaw Willie]

here is the law

(3) A "digital audio recording device" is any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use, except for -

(A) professional model products, and

(B) dictation machines, answering machines, and other audio recording equipment that is designed and marketed primarily for the creation of sound recordings resulting from the fixation of nonmusical sounds.

is a PC a "digital audio recording device" it is certainly capable of being used that way, -- but -- that is NOT it's primary purpose. A PC HAS NO PRIMARY PURPOSE it is a general purpose machine.

now if you put a sound card in your PC and announce that your PC is your Music Library system then that is just something you are saying

copyright law was intended to protect the right of the owner to regulate the manufacture and distributions of copies of the copyright material.

what we need is the law clarified with the addition of a paragraph on computers and networks

if you post any material to a web site or on a P2P share you have published that material and if the material is copyright protected then you have trespassed on that copyright and can be charged with a crime.

it is the duty of the Congress to clarify the definition of a digital recording device it is not up to the court to wreck someone life with a test case. If the law is NOT CLEAR then the defendant must go free and if there is any remaining issue that has to be refered to the Congress -- NOT to the Court. The court does not make the law only Congress can do that and it's about time this trouble with "juducial activism" got straightened up too.

Re:perjury ?

[mea37]

There are two people talked about in the article.

One is a Sony spokesperson who testified under oath. She is not a lawyer, so cannot be disbarred. She could be tried for perjury, but the question would be whether she willfully broke her oath. If she is allowed to claim that she misunderstood the question, then it would be very hard to prove. It seems like the court record of the question being clearly asked should stand as evidence that such misunderstanding were unlikely or unreasonable, but I'm not sure how comfortable I am with the idea that a personally is legally required to know if they've understood someone else correctly.

The other person -- the lawyer mentioned -- was not testifying under oath. She asked a line of irrelevant questions which the defense failed to either derail or address/debunk. The lawyer's conduct may raise ethical questions, but if so they are questions about the expected behavior of all lawyers, not just this one. By today's standards, we allow a lawyer to chase down lines of questions to which they want the jury to hear answers (even if the reason is to prejudice or to take advantage of implied context), and if the other side doesn't want those answers heard, they object. Had there been an objection, had the judge sustained it, and had the lawyer persisted in pursuing the question anyway, then there could be disciplinary action.

Should there be sanctions for asking a question with the expectation that the answer will prejudice the jury? That sounds like a tall order to me.

But I'm curious how much impact this had on the jury. Would the jurors really take the RIAA at its word as to what is or isn't copyright infringement? Were the jury instructions really vague enough that the jury was allowed to incorrectly interpret the law? Or was the jury assessing the verdict based on her placement of files on a P2P share, as previously reported, without regard to her irrelevant act of ripping CD's for her own use?

This story doesn't impress me. The spokesperson strikes me as a weasle and I'm not inclined to believe her, but if there was a miscarriage of justice, it was due to several agents of the court (including the defense lawyer and the judge) doing a poor job, not singly to one person's biased testimony.

(To be fair, I have relatively little sympathy for the defendant, as I believe her own less-than-upstanding behavior has hurt all potential defendants in RIAA lawsuits.)

Re:perjury ?

[vux984]

It's only "infringing" if it breaks copyright. Copyright is a limited set of rights granted by law to the creator. preventing people from making "fair use" copies is not one of those rights.. so it's not infringing on anything.

Fair use isn't a right. Its a defense. You make a copy, you get charged with infringement, you defend your copy as fair use. You hope you prevail.

Copyright law itself doesn't define fair use as a right, it recognizes that some infringement for fair use is allowed, and gives a set of guidelines to assist with recognizing fair use. But essentially each non-authorized copy is an infringement waiting for a lawsuit... and when the lawsuit comes, fair use is waiting as a defense... but until something has actually been ruled fair use and a precedent is set, its legal standing is essentially unknown... we know a lawsuit can be brought, and we know fair use is a credible defense strategy... but we don't actually KNOW how it will turn out.

Ripping a CD to a PC has never been ruled on. So there is no precedent confirming that fair use is recognized. You and I can think its "clearly obvious" that a fair use defense would prevail (and I think it would)... but until it actually does...we don't actually KNOW.