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.

[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.

[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 ?

[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 ?

[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 ?

[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.

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.

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.

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?

[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.

-

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.

Is this a law?

[BorgCopyeditor]

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

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

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.

Comment removed

[account_deleted]

Comment removed based on user account deletion

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.