Judge in Capitol v. Thomas Considers New Trial

Jay Maynard writes "The judge in Capitol Records v. Thomas said today he's thinking about granting a new trial because he may have committed a 'manifest error of law' in his jury instructions. He says that his instruction that simply uploading music to a P2P network without any proof that anyone actually downloaded it may conflict with a case in the Eighth Circuit Court of Appeals that said 'infringement of [the distribution right] requires an actual dissemination.' Briefs are due by May 29, with oral argument July 1. The judge invited friend of the court briefs by May 29, as well." NewYorkCountryLawyer links to the Judge's order itself (PDF), in which the Judge notes that he may (in NYCL's words) "have overlooked controlling Eighth Circuit authority, the case of National Car Rental v. Computer Associates, which held that you can't have a violation of the 'distribution right' without an 'actual dissemination of copies or phonorecords.'" Update: 05/15 18:54 GMT by T : Note that while the linked story as well as Jay Maynard's summary use the term "upload," Thomas wasn't uploading the files themselves, only making them available.

Comments

Re:Huh?

[Anonymous Coward]

except that in P2P you can't upload without someone downloading. There's no buffering/storage. It's Peer To Peer.

Re:Huh?

[Mr. Beatdown]

The judge is saying that he may have made an error in his instructions to the jury. He told them that making available = distribution. The 8th circuit court had already ruled that distribution is required for infringement, and there is a growing consensus that making available does not equal distribution.

Basically, they might have to do it all over again, because the judge told the jury the wrong test to apply to determine if she broke the law.

Legalse to English translation

[mrbah]

The judge didn't take a higher court's ruling on what constitutes infringement into account when giving instructions to the jury.

Basically, it's like this:

[parliboy]

You know that Jammie Thomas lady that was ordered to pay out $222,000? Turns out that the judge is concerned it isn't likely to survive appeal because he gave the jury bad instruction. Basically, he said that the plaintiffs don't have to prove that actual distribution takes place; just the fact that the files were in a distributable folder is enough. And she lost. Badly. But now, Jammie's lawyers have come up with prior law that basically says, "What you talkin' 'about, Judge?" Not just weird fringe stuff, but pretty firm law that has withstood some trials already.

Re:Basically, it's like this:

[CodeBuster]

It wasn't entirely the fault of the judge. As NYCL has already said, the defense attorney failed in his duty to his client, Mr. Thomas, by not mentioning the precedent and the RIAA attorneys failed in their professional responsibility as officers of the court in not mentioning it to the judge, even though it might have damaged their "making available equals distribution" argument. Apparently, although IANAL, it the responsibility of the lawyers to present precedents, whether positive or negative, that have bearing upon the essential matters currently at hand in any particular case.

Re:Huh?

[Ungrounded Lightning]

In particular:

  - Offering it to be downloaded may not be "nice" but no laws are broken until somebody actually DOES download it. So said the 8th Circuit Court of Appeals - the appellate court above the one where this trial was held. This court within the 8th Circuit and must follow the decisions of law made above it. (The 8th Circuit, and the Supreme Court above that, are its "controlling authorities".)

  - Unfortunately, neither the defendant nor the RIAA mentioned this to the judge and he didn't think of it himself. So he told the jury that (as the RIAA claims), "making available" is a crime. OOPS! The jury then convicted and asked for a BIG punishment.

  - Since then he noticed (probably got a lot of letters about) the ruling. So when the defendant's attorneys filed a complaint that the punishment was too big and asking for the judge to reduce it, the judge said: "I goofed. Sorry. (But nobody mentioned this ruling from my boss court during the trial. Tisk, tisk.) And the law lets me fix that by ordering a new trial (where I'll be careful not to make this goof again). And the law lets me tell you that when I'm answering you about this other issue (which will just go away if we hold another trial.) So both sides send me your written thoughts about this by June 5 and we'll all get together and talk about it on July 1. Then I'll decide what to do. (Hint: If the defendant asks and the plaintiffs don't have a good argument why not, I'll order a new trial."

  - The RIAA's methodology only shows that the content is available on the server, not that anybody downloaded it. So once there's a new trial they'll have to come up with evidence they didn't present at this one. (I think the judge might ask them if they have such evidence and give them an opportunity to just go away and let the defendant off if they don't, rather than scheduling another trial they can't win.)

Re:~OT "Friend of the court"

[hax0r_this]

From Wikipedia:

amicus curiæ (plural amici curiae) is a legal Latin phrase, literally translated as "friend of the court"

Re:incomplete sentence

[compro01]

uploading is still illegal, but they have to prove that the music was actually uploaded. just finding the music in a share folder proves nothing. so, in essence, your 3rd option.

Re:Does Media Sentry count?

[Zontar_Thing_From_Ve]

It'll be interesting, if there is a new trial where the RIAA has to prove distribution, whether the judge considers MediaSentry downloads to be proof of infringement. I think you are missing a very important point. The first trial was a jury trial. Any subsequent trial will probably also be by jury. It matters a lot more what the jury thinks about MediaSentry's "evidence" than what the judge thinks. The original case was lost because the lawyers for the lady were incompetent. I'm sorry, but it's true. The jury reported that they were convinced that when the PC had "missing files" it was because the woman had the PC cleaned to get rid of incriminating evidence. Her explanation was that the PC had to be repaired due to a hard disk crash and the repair involved getting a new disk drive. The jury either did not buy this explanation or was not told of it. The judge's instructions were a slam dunk to a jury that was already convinced that the woman broke the law and was trying to hide it. Unless her lawyers do a better job in round 2, don't hold your breath that she'll survive a re-trial. She's still going to have to convince another jury that she wasn't destroying incriminating evidence to cover her butt. Remember too that the people who serve on US juries are not techies. They are roofers and truck drivers. I served on a jury almost 3 years ago and I was the only IT person in the room. There were 1 or 2 teachers and a couple of other professionals, but we had a lot of people on that jury who could barely and I do mean barely do email. Fortunately our case did not involve technology.

Re:Huh?

[NewYorkCountryLawyer]

So its the lawyer's fault that the judge didn't know about that particular case? Yes. We are in an adversary system. No lawyer and no judge knows all of the law. It's far too vast. Judges rely upon the lawyers to do their homework, to hone in on the issues that are involved in any particular case, and to focus the judge on what is relevant. Which is why it was so important for Ms. Thomas's lawyer to to represent his client "zealously". And why an opposing lawyer is REQUIRED BY LAW to disclose to the judge "controlling contrary authority". (No lawyer likes to do that last thing.... disclose controlling contrary authority... but it is an important and a binding rule which was designed to avoid just the type of embarrassment that has been caused here.)

Re:Huh?

[BobMcD]

I briefly considered being that explicit about the analogy, but I assumed I'd be insulting the intelligence of my reader. Thank you for proving me wrong...

Please replace 'poison' for 'human-poison'. Or perhaps 'homosapien-icide'? Whatever the word you want to use, I'm attempting to illustrate the link between intent and actual result.

Re:Huh?

[Drathos]

Um.. Not sure where you heard that gay marriage is legal in all 50 states, but a couple years ago, Virginians passed a state constitutional ammendment banning same-sex marriages and civil unions. At the time, there were at least 20 other states with similar bans already passed or coming up to vote.

Quite muddying the waters.

[spun]

No, you quite being an idiot who didn't RTFA. MediaSentry searched for certain files without downloading them. Sorry, but it is you and the GP who are both imprecise slackers who couldn't be bothered to read the article and posted without knowing what you were talking about.

Re:Huh? Summary Judgment

[Christoph]

Summary judgment is allowed if there is no genuine dispute over the material facts. Motions for summary judgment are often brought after discovery and before the trial. Many issues are often decided at summary judgment.

However, some pretty absurd disputes make it to trial. One might survive summary judgment on a claim that another wrongfully took your life...who says I'm alive? That's a question for a medical expert, and I'll produce one at trial who will say I'm not alive (at trial, you may not have such an expert, but you made it to trial).

Re:Huh?

[Evets]

I finally found a reference and it was UMG v. Lindor that they discussed. From ARS Technica:

There was a conference this morning to go over the proposed jury instructions. Judge Davis began moving through them sequentially until he got to number 14. "Let's skip number 14 for now, because I think we're going to spend some time on that one," he said. After some minor tweaks to the other instructions, the parties returned to the instruction at issue.

Gabriel cited Perfect 10 v. Amazon.com and the original Napster case to support the RIAA's view that making a file available for distribution over a peer-to-peer network was a violation of the Copyright Act. "If there's an index and something behind it, that's distribution," argued Gabriel.

The judge seemed particularly interested in UMG v. Lindor, and while that particular case was being discussed, Matt Oppenheim of the Oppenheim Group, whom Gabriel referred to as "my client," was consulting the "anti-RIAA blog" The Recording Industry vs The People. Gabriel noted that he was lead counsel in that case as well and that the decision cited in the case wasn't applicable to the matter at hand.

Toder disagreed, but at the end, Judge Davis amended the instruction to say that the "act of making available for electronic distribution... violates the copyright owner's exclusive copyright." That decision should make it easier for the jury to find Thomas liable.

It is very strange indeed that the subject came up, it was discussed in conference, both attorneys knew about the subject ahead of time, and neither brought up this case. I suppose there was a lot going on, and I am not surprised the RIAA lawyer forgot to bring it up - but this does seem to be the most relevant case that can be found on the subject.

Re:Huh?

[NewYorkCountryLawyer]

It is astonishing that Ms. Thomas's lawyer did not cite the case, because he definitely knew about it. And in view of his not having cited it, it was a violation of the ABA Rules of Professional Conduct for Mr. Gabriel to have failed to call it to the court's attention. See ZDNet article.

Re:Huh?

[PhilipPeake]

Unfortunately, that precedent already exists. If you have the components available to create a short barreled rifle, which requires the payment of a $200 tax, the BATFE can (and will) prosecute you for "constructive intent".

In other words, you possess a collection of components which are all individually legal to possess, but .gov can argue that because it is possible to construct something illegal, you intend to do so, and therefore you are guilty of a felony (not paying the $200 tax).

You don't have to express any intent to do so, you don't have to assemble anything. Just being in a position to do so makes you a criminal.

Re:Huh? Summary Judgment

[GryMor]

IANAL The key is 'material facts' in dispute. If a fact, in all it's possible permutations (in your example, signed, signed under duress, contract of adhesion, didn't sign, etc.), doesn't impact the law of the case (the contract's terms are illegal), then it isn't actually material, even if it's disputed.

Re:Huh?

[cpt kangarooski]

You're wrong, I'm afraid.

The key is that the statute defines what a copy is, in 17 USC 101. Long story short, a copy is a material object in which a work is fixed. So a story is not a copy, for example, but a paperback book in which the story appears is.

In MAI v. Peak, a widely-followed case, the Ninth Circuit decided that when computer software was written to RAM in the process of running the program, this constituted the creation of a copy, since the RAM is a material object in which the work was fixed. This also means that when you download from someone, since the server obviously cannot send a tangible object over the network, the downloader is creating a new copy. Later courts have confirmed this to be the case, in opinions such as Napster, Grokster, and my favorite (for its clarity, not for the outcome), Intellectual Reserve v. Utah Lighthouse Ministry.

There is nothing to indicate that various temporary copies made in the course of downloading -- such as in the memory of routers -- would not be infringing. In fact, the law implies that it is, by providing a defense to ISPs that wouldn't seem to be all that necessary otherwise, at section 512(a).