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

Let me clarify my position.

[palegray.net]

Please, your Honor, don't take what I actually said to heart. What I really meant to say was a complete reversal of the actual meaning of what some may interpret to be a broadly misunderstood fabrication of opinions based on statistical evidence to the contrary.

Re:Let me clarify my position.

[Courageous]

Please, your Honor, don't actually make me testify. Instead, let's just pretend that I testified, and you can then act as if I made the most compelling argument possible, and find for the plaintiff.

Respectfully,

Carcharodon Carcharias, Esq.

Re:Let me clarify my position.

[Brian Gordon]

Please, your Honor, it was merely 2nd-grade-level grammar that caused the confusion. I'm a slashdot editor!

Re:Let me clarify my position.

[Malevolent Tester]

If only lawyers shared the Great White's endangered status as well. Sigh...

Anyway, given their shared bottom feeding habits, wouldn't Ginglymostoma cirratum be more appropriate?*

* IANAMB, I looked the Latin name up on wikipedia, so it probably actually means "Fuck your mother, Brutus" or something similar.

Re:Let me clarify my position.

[X0563511]

<defense style="chewbacca">But that does not make sense! </defense>

Re:Let me clarify my position.

[jamstar7]

No, but I'm sure the sharks would be.

I'm still wondering why biologists continue to use lab rats to experiment on when there's so damned many lawyers about...

Re:Let me clarify my position.

[mabhatter654]

this is how a good many high-profile criminal cases are argued by DAs everywhere. Misrepresenting the leagal status of your case is almost universally allowed now days. Most things we worry about here... like being charged kiddie-porn or terrorism or hacking are delt with the same way.. half truths by prosecutors trying to "invent" crimes and trying to bend laws to fit instead of knowing how to charge you with breaking the appropriate law (which would be a slam dunk). Prosecutors routinely try to bring in non-relevant evidence, in a trial over 1 or 2 illegal pics they might put the worst stuff they find that might be in your cache and use that to bait the jury and confuse the issue of "morality" with which pictures break the law and WHY. Police do the same in their "reports", I've seen police reports with ""'s that a person said this or that when it wasn't what was said at all, but what the police THOUGHT was the answer they wanted to hear... and not the facts.

Fact is that the present jury system is DESIGNED to REMOVE the jury from the facts. Designed to obscure facts of a case from the Jury, while crippling their ability to ask for facts or have the appropriate laws relevant to the case pointed out to the. Juries are treated as a bunch of dumb slobs to beg to push the Blue button or Red button so they can go home. The civil system is even worse as all the cases "waste the courts time" so incentive to pull big stunts and baited arguments is in full effect because the jury just has to "agree", it doesn't have to make LEGAL sense!!!

Re:Let me clarify my position.

[MarkOnBoat]

And of course there are so many things a rat just won't do...

Re:Let me clarify my position.

[MorpheousMarty]

The risk is we might create a super lawyer which would be unstoppable. Not even fictional Nazi super-science is that evil.

Re:Let me clarify my position.

[Petrol]

You're forgetting, biologists need warm-blooded creatures for their experiments.

appeal?

[tsstahl]

Is any of it grounds for appeal?

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 ?

[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.

Re:perjury ?

[pilgrim23]

And for this we gave up duals?

Re:perjury ?

[Torvaun]

Is that the one where you fight with a pistol in one hand, and a sword in the other?

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 ?

[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.

Re:perjury ?

[pilgrim23]

duel, dual, do all, due awl. the difference only works in legal briefs... and mine are not in a knot.

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 ?

[j3w]

I think the fact of the matter is that the law is open to interpretation such that it does become what you can get the courts to believe- otherwise we wouldn't have the drawn out legal processes we do. I don't want to play the devil's advocate or anything, this isn't so much something to scoff at as it is something to be afraid of, most of the money is on the side that would like the courts to believe something like personal copies = illegal. If we're not careful ( and perhaps even if we are) things like this could sneak into the law.

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.

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:perjury ?

[libkarl2]

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? Sounds to me like an attorney stepped over the line, and then thought that her little "mis-statement" would slide by. In other words, told a major case distorting lie in an effort to win by "bending the truth slightly". Sound silly and stupid? Evil perhaps? Well I will go out on a limb (a nice thick, sturdy limb) and say that today in America, there is no shortage of assertive, goal oriented, full grown adult human professionals who are willing to go "that extra mile" to succeed. That is, ya gotta shoplift a few eggs in order to make an omelet. It's about winning. Even if it means winning at things that deteriorate society. The RIAA is gaming the legal system on a massive scale (duh). That they can do this without incurring severe retribution is a testament to their remaining power and influence. However, when you look at who they attack, and how hard they fight, you can tell they are near the end. That power and influence is diminishing, and they know it.

In answer to the question: it was a massive flaming jury manipulating lie. Even if that was not the intent of the liar, it's still a lie, and worthy of disciplinary action.

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.

Re:perjury ?

[TheoMurpse]

If it falls under fair use, then it IS copyright infringment by definition.

That's utter rubbish

No, you just don't understand the law. "Fair Use" is an affirmative defense, which means you admit to being culpable for the crime, but then point out that, oh yeah, you still can't beat me. Contrast this with a plain old defense.

A plain old defense negates an issue the plaintiff had to prove. On the other hand, an affirmative defense acknowledges the existance of the elements the plaintiff had to prove and says that there is still an excuse.

One way of thinking about it is: a defense is a denial. An affirmative defense is an excuse. See self-defense (which says you still committed murder--that is, intentionally took a human life--but were justified in doing so). You still murdered; you're just not guilty of murder.

Affirmative defense
Defense

Mistrial?

[nurb432]

Is this grounds enough to declare a re-trial?

I would hope so.

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).

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.

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

[HappyEngineer]

She may have been guilty, but it was still a tremendous miscarriage of justice. I have no idea what "cruel and unusual" is supposed to mean if $222k for 24 songs isn't cruel.

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

[Jah-Wren Ryel]

I haven't looked closely at any of the claims by any of the parties involved.
But, it is certainly possible that she brought the system in for repair and the repair shop sat on it for a few weeks/months and only returned it to her after she had received notice.

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:Against Intellectual Property

[aim2future]

Sorry I don't have mod points at the moment. Thanks for the essay link to http://deoxy.org/aip.htm

Our business plan is to soon provide an environment for free innovation (the customer is the inventor concept) and push the patent system into where it belongs, a harmless oblivion.

Copyright laws are still important though, as they care for software licences like GPL to not be abused. Regarding creative art, DRM is evil (I don't purchase DRM stuff) and DMCA is pure insanity.

support FFII.org, EFF.org and DefectiveByDesign.org

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?

[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:Can we define copyright as between two people?

[Anonymous Coward]

I disagree, we should bite the bullet and define that copyright violation has only occurred when copying was done for commercial gain. (note, commercial gain would include putting files up on a web page with ads)

Enforcing copyright is an absurd way to get average people to pay for content. Its like walking cats. Instead people need to realize that they need to pay to get the good entertainment they want.
Yes some people will get what others payed to produce for free. But at least they got what they wanted for a fair price. Those some wouldn't have contributed in the first place, and thanks to the magic of practicaly free copying, they don't harm those who payed.

Re:Can we define copyright as between two people?

[nine-times]

If you want to talk about the original intent of copyright, it was to prevent publishers from reprinting each other's books and selling them for profit. At the time, there was no expectation that we would have such a thing as a "digital copy", or that private individuals would have the ability to copy and distribute millions of copies of anything for practically zero cost.

So copyrights were never intended to apply to our current situation at all, because our current situation wasn't anticipated. Applying copyright to the caching of software code in RAM in order to run that software, for example, has nothing to do whatsoever with the "original intent". And yet that's how it's being used now, which is why software vendors are able to require "licenses" in order to use their software even if you don't copy the software.

Some might argue that, regardless of the original intent of copyright law, we need the protection for content owners now. Personally, I think copyright law should never have been allowed to be used against individuals who have produced unauthorized copies without any commercial gain.

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.

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: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?

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.

Wrong Musical

[pyrrhonist]

RIAA's 'Misspeaking' May Have Affected Verdict

It's Miss Saigon , not Miss Peking.

Also, the RIAA shouldn't take credit for the work of Claude-Michel Schönberg, Alain Boublil, and Richard Maltby, Jr.

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.

I wonder...

[NewYorkCountryLawyer]

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

Re:Freudian Slip

[jamstar7]

Of course that's how they really feel. CD sales are at an all-time low, and their revenue model is swimming like a rock. The reason all these suits are going on is because if they get enough 'wins' as precedent in court, they can then bother their paid-for shills, er, Congressmen, to pass legislation necessary for their share of corporate welfare funded by the tax payer.

Of course, they'd also love to use the same idea the telecoms use for the internet: collect from both ends for the same byte. In this scenario, they collect from the radio station for playing their overblown crap^F^Flatest hits, and force all new radios made to 'feature' a credit card slot as part of the device. The radio won't work until you plug in the credit card, and by the terms of service of the radio, you cannot dispute the charges on your credit card bill. Scared yet?

Is this a law?

[BorgCopyeditor]

First, its duels [...]. Secondly, [...].

First, it's "it's." Second, if it's "first, ..." it's "second, ...."

Re:hopefully they'll get what's coming to them

[jamstar7]

i mean the RIAA executives. i hope they all go to jail and get aids from the rape.

Fixed that for ya. That'll be $5 plus $0.05 per view. Cash only, please.

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:Bad Lawyers

[exley]

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.

Thank Christ someone finally pointed this out. This is another one of those non-story Slashdot stories -- it's just preaching to the choir and doing so in a rather questionable manner. Is the RIAA lawyer a douchebag for playing fast and loose with the language? Of course -- but that's why a defendant isn't alone in our justice system. That's why there's a defense attorney, part of whose job it should be to counter any bullshit from the accusers, and a jury whose job it is to see through both sides' bullshit. Of course the system isn't perfect, but that's how it works.

Continuing on that theme, Thomas was more a victim of a lousy defense and just plain stupidity. There's a lot more to what went into the verdict than one simple "misspeak" by a lawyer, and this "story" is blowing out of proportion just one part of the case.

Re:Bad Lawyers

[slashqwerty]

Her lawyer's fees were barely covered with $17,000 of donations. At typical lawyer fees of $200 per hour that's two weeks of work. This was a precedent setting case. How could he possibly have been ready with two weeks of work? Perhaps that's why he made egregious errors such as:

1. Arguing that someone could have hacked into her wi-fi...if she had wi-fi! That argument made it look like she had no case and was instead grasping at straws.
2. Failing to explain how someone else could have used her login name (such as the neighbor stealing internet access under her name and using the same name to log into Kazaa; or a trojan that logged into Kazaa with the login name on her machine). As far as I'm concerned this was the single biggest issue presented at trial and all the defense could do was make vague references to identity theft?
3. Failed to explain how someone else could have used her IP number (such as the neighbor stealing internet access or a trojan taking over her machine).
4. Failure to present evidence showing the prevalence of trojans, worms, viruses, etc.
5. Failed to address the amount of time it would take to cause the damage the RIAA was claiming. To upload 3.7 million copies of the songs she would have had to start before she was born. And 222,000 copies would have taken a couple years.
6. ISPs, in particular her ISP Comcast, keep track of how much bandwidth their customers use. I'm sure the RIAA would have presented it as evidence if it favored their side. The fact that we never heard any numbers tells me Thomas' lawyer just wasn't knowledgeable enough to ask.
7. Failed to point out the blatant misrepresentation of the RIAA's expert witness when he claimed copying one song every 20-30 seconds means it must have come from another hard drive (hint: the math works out perfect for a CD-ROM and an order of magnitude too long for a hard drive). Instead they presented some pathetic theatrics that an uninformed jury no doubt dismissed.
8. Failed to challenge the credentials and methods of the RIAA's expert witness.

Many of these were tied to the lack of an expert witness. Nevertheless her lawyer should have addressed the last issue at a minimum.

Re:Freudian Slip

[Anonymous Coward]

The RIAA have felt this way for years and it has nothing to do with current CD sales. In fact, during the late 90's when CD sales were at record highs, their web site claimed that ripping a CD was illegal (they had the legal wherewithal to remove those statements fairly quickly once discussions started picking up about it around the 'Net). The RIAA's head mouth piece even opined that one should have to buy a CD for the home stereo and another for the car stereo.

This is the fantasy world that the RIAA uses as a lens to see the real world. It is their heart's desire to make the two worlds align perfectly where their fantasies become legally enforceable reality.

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

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:Freudian Slip

[antispam_ben]

There's already the "tape tax" law from the early '90's, in which a tax on blank tape was distributed to the RIAA/record companies to supposedly be distributed to the artists who were losing sales to "home taping." It also applies to "audio CD-R's" that I don't think anyone uses anymore. They were needed on standalone CD recorders which were crippled not to record on standard data CD-R's. You had to pay the "tape tax" to record anything ob those recorders, even your own original music!

The RIAA's ultimate goal is to tax the bits coming out of A/D converters so they can "plug" the "analog hole" as well as having full control over of making digital copies of anything.

Re:Article summary

[NewYorkCountryLawyer]

It was the editing that changed it around. I submitted it this way.

What about the AHRA?

[PPH]

I thought this B.S. was already addressed by the Audio Home Recording Act. If the RIAA doesn't like the terms, are they going to have to give back the AHRA royalty payments they have been receiving for years?

IANAL, but the aforementioned act appears to include language specifically designed to allow home digital and analog recording of copyrighted material.

Re:What about the AHRA?

[NewYorkCountryLawyer]

I'm willing to don my aluminum foil conspiracy theory hat for a moment and make the following supposition: The RIAA is attempting to get testimony introduced into a case involving file sharing that equates CD ripping with sharing. Once a judge is conned into issuing a decision that implies ripping itself is illegal, the RIAA will extend its enforcement based upon this new precedent. That's pretty much the idea. But to refine it just a bit:

1. The RIAA's leading precedent for its "making available" theory is the Hotaling case. Hotaling has been distinguished on the ground that the copies being 'made available' were concededly unlawful copies. If the RIAA can establish that copies ripped from cd are 'unlawful', then Hotaling case can't be distinguished on that ground.

2. If in their filesharing cases they can argue, as they did in Capitol v. Thomas, that the mere fact that a defendant has song files on his computer which he copied from his cd's is in itself unlawful conduct, it helps to make the defendant look bad. This was the tactic they used in Capitol v. Thomas. Jennifer Pariser testified that it is unlawful to make copies from cd's onto one's computer. And then Richard Gabriel roasted Ms. Thomas during her crossexamination over the fact that she'd copied cd's to her hard drive without his clients' permission. I haven't seen the transcript yet, but apparently neither the judge nor Ms. Thomas's lawyer picked up on the fact that the jury was being misled. This is the RIAA's game : taking advantage of unknowledgeable judges and overmatched, underpaid attorneys.

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.

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:Bad Lawyers-You've Been Trumped!

[exley]

Either that or he fired her

Lawyers "Misspeak"

[hyades1]

When you or I do it, it's called "perjury".

DMCA.

[SanityInAnarchy]

For CDs, that is still true. For DVDs, not so much. And I imagine it would apply to any of the bastardized CDs (Sony rootkit, etc).

This is because, as I said in my other comment on this thread, the DMCA makes it illegal to circumvent copy protection. It doesn't matter that what you're going to do with it constitutes fair use; the act of circumvention is itself illegal.

So, in theory, if you have a CD with the Sony Rootkit on it, you're not allowed to rip it, because to do so, you'd have to "circumvent" the DRM by disabling AutoRun, or by using Mac or Linux.

This should hold for EULAs, also. All they have to do is provide built-in DRM which you have to go through to do anything. Then, they don't even have to declare what you can and can't do in legal terms -- anything the DRM explicitly allows you to do is legal, anything else is not.

And that, boys and girls, is the real reason for the War on Piracy: Control.

HMRA 1992

[Grampaw Willie]

it appears to me the music business has no case whatever against non-commercial home use pursuant to Subchapter D of the 1992 HMRA:

Subchapter D --Prohibition on Certain Infringement Actions, Remedies, and Arbitration

  1008. Prohibition on certain infringement actions

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

what does this all mean? if you buy a music CD you can play it anyway you want for yourself. put a copy in your car put a copy in your ear, anyplace you like

BUT DON'T PUBLISH A COPY

if you publish a copy -- e.g. off a web site or network share off a P2P net -- you are outside of "home use"

publishing is reserved to the copyright holder by US copyright law, and guess what, Clones: you ain't gonna change that. The law will likely be clarified however.

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.