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

perjury ?

[Anonymous Coward]

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 being questioned as a witness for the side that pays her salary?

why the hell not?

Re:perjury ?

[pintpusher]

Are you implying that this attorney, working for the RIAA and therefore presumably knowledgeable about copyright law, didn't know that claiming personal-copies-as-illegal was a lie?

I think that attorney should be fired for gross incompetence. I mean come on, it's a copyright attorney, it should know these things.

Re:perjury ?

[mrchaotica]

Then he was incompetent, and should be disbarred anyway!

Re:perjury ?

[WaltBusterkeys]

First -- If we "disbarred" every judge who didn't correct a lawyer's error then there would be no judges left in about a week. Seriously. Lawyers in court, especially in trial court, say dumb things on an hourly (if not more often) basis.

Second -- It's the job of the other party (here, the defense) to object when a lawyer on the other side says something improper. If the defense failed to object to it then they waived the right to appeal it. The idea is that you want to allow things to be corrected at the time (by telling the jury "that's not the law" or instructing them on what the law really is) rather than looking for mistakes after the fact and having to start all over. Trials are long, complicated, and expensive. If we looked for every mistake after the fact there'd never be any finality to any ruling. Instead, we rely on the defense to catch the plaintiffs' mistakes as trial goes (and vice-versa).

Third -- It depends on the state, but in most cases there is a judicial misconduct process that requires showing that the judge actively committed some wrong (took money from one side, or tried to intimidate a witness into not testifying, etc). Getting the law wrong happens all the time. That's why we have appeals. If we disciplined every judge who got the law wrong at some point there'd be no judges left and we'd have no reason to have an appeal process. Tens of thousands of cases get appealed every year, and almost every appeal is premised on a claim that the trial judge got the law wrong. That can't be a basis for discipline or we'd run out of judges within a week.

Re:perjury ?

[WaltBusterkeys]

RTFA -- "she", not "he"

RTFA -- She claims that she misheard the question and thought they were still discussing downloads, not ripping from disc. Who knows if that's true or not, but it's probably more than enough of a defense against any kind of complaint.

To reach the level of perjury you need to show that she knowingly and intentionally lied. There are two problems here -- First, she only said it once and claims that she didn't hear the question. To really nail somebody on perjury you have to show that their entire testimony revolved around a big lie. For example, if the witness comes up with a whole story as to where he was on July 2, 2007 that turns out to be a total lie. Even then, it's tough to prove beyond a reasonable doubt that the witness was entirely fabricating. Second, it has to be an actual statement of fact. The RIAA has announced that they're not pressing the argument that ripping is stealing, but there is an argument that copying a CD to a computer is still copyright infringement. It doesn't matter if it's a good argument or a bad argument (I think most /. readers think it's a bad argument). All that matters is that it's an argument that one could make with a straight face in court (there's a "copy" of the data on the CD created--hence copyright infringement). That's enough to make it not a lie.

Look, the RIAA does plenty of things wrong. Focus on the real ones rather than the little petty ones.

Re:perjury ?

[WaltBusterkeys]

Huh? Some states elect state judges, some states appoint state judges, and the federal government appoints federal judges. I'd argue pretty strongly that the appointment systems involve a lot of questions about knowing the law.

The problem with your statement is that there is a LOT of "the law." The United States Code -- the document that contains all federal laws currently in force -- runs more than 30,000 pages. Nobody ever could "know" all of that law. If you add state laws and federal regulations you're talking in the hundreds of thousands of pages of law.

Our judges are usually generalists. They hear all kinds of cases. So instead of forcing judges to memorize, we rely on the parties on each side of a lawsuit to present the law to the judge and to inform him what the correct law is. The judge then takes his general legal training and figures out which side is correct, instead of trying to memorize a 30,000-page body of law.

Good judges are usually good lawyers. They are usually very good at legal reasoning. They usually aren't good at memorizing 30,000 pages of text. I'd much rather have smart judges able to reason than judges who have memorized a huge book.

Re:perjury ?

[Kreigaffe]

"but there is an argument that copying a CD to a computer is still copyright infringement. It doesn't matter if it's a good argument or a bad argument (I think most /. readers think it's a bad argument). All that matters is that it's an argument that one could make with a straight face in court (there's a "copy" of the data on the CD created--hence copyright infringement). That's enough to make it not a lie."

Uh. Except it's NOT copyright infringement, it falls under fair use for consumers. we're allowed to make copies of shit for our own personal use.

Sharing those copies is not allowed.

Breaking through copy-prevention is now allowed. The copying ITSELF is still allowed, it is the circumvention / disabling of the copy-prevention that is against the law.

This bitch did not misspeak. She was asked if it was okay for a consumer who legally purchased a track to make a copy of that track. She responded by saying that's a "nice way of saying -- steals one copy."

She knew exactly what she was saying, there is absolutely no way she could have misunderstood the question to be about illegal downloading, as the RIAA pres claims. Nor was it even a question about ripping CDs, also as stated by the RIAA pres.. it was a question about a legal purchase of a track, and making a copy of that track. Nothing about downloading, nothing about sharing, nothing.

Their expert testimony just proved itself to be as dumb or dumber than we all thought initially, and is no expert. I for one would not expect an expert to so grossly misunderstand a question that a flat answer would be given -- if there's the least doubt that you fully understand the question I would expect a request for the question to be clarified so a truly expert answer could be given. Not just off-the-cuff let's-make-a-case-OO-RAH bullshit.

Unfortunately for Thomas, it doesn't matter.

[Anonymous Coward]

Unfortunately for Thomas, it doesn't matter. The evidence was overwhelming, and unlike most of the RIAA's targets, Thomas was guilty and the evidence suggests she knew what she was doing was illegal (she destroyed her original hard drive).

Can we define copyright as between two people?

[compumike]

Can we please redefine copyright law as being applicable only when a protected work is copied between two people? This way, reselling a used CD would still be OK (right of resale, copyright law does not apply). And making a copy from one media format to another, or a temporary copy to RAM, or a backup copy, or transcoding, would all be legal and not under copyright law either, because there would not be any exchange between two people.

I suspect that this is how copyright was originally intended to apply, and I think it makes more sense. Let people do what they want with their media, as long as they don't copy and distribute it to another person. Thats when copyright law should apply.

--
Our microcontroller kit. Your gcc compiler. Learn digital elecronics!

Re:Can we define copyright as between two people?

[Bogtha]

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

This is not true. This falls under "fair dealing". See Copyright, Designs and Patents Act, Section III, Chapter 1.

I make an illegal copy of my CD when I play it...

[speculatrix]

.. because copies exists not only on the CD but also (1) in the digital bitstream being processed by the digital processing in my home cinema amp, (2) another in the sound pressure waves in the air, and (3) a further one in my brain as it listens.

Sometimes I even violate copyright by singing along to a song without having bought a performance license! Even worse, I might sing the song at a different time, thus time-shifting/reproducing it! If I hum it in a public place, that compounds the crime because then it's a public performance.

Since I want to avoid becoming a career copyright-violating criminal, I am moving to Antigua, land of the free, land of RIAA-copyright-free.

Sadly, I wish everything I wrote above was bollocks, but far fetched and silly as it might be, it seems the Recording Ass of America don't see it as such.

I wonder...

[NewYorkCountryLawyer]

if Cary Sherman and Jennifer Pariser have told the judge that Ms. Pariser "misspoke".

Future EULA

[IHC Navistar]

When I buy a CD, I have PURCHASED the CD and the data contained on it. It is now my property. Period.

When you buy a cd, you puchase the disk and the music/data on it. You do NOT purchase a license to simply use the disk and listen to the music. That being said, if I buy a CD, then I should have the right to make as many copies of the music on it as I see fit, as long as I don't sell those copies to other people.

If the RIAA wants to start this whole EULA-esque crap, then they should state that you are not buying a CD, but rather purchasing a license.