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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.
For FSM's sake, I hope the work is ending.... !!!!
Hear that? That sound like dominoes knocking one another over? With a huge pot of RIAA money precariously balanced on three dominoes at the edge of the table? YEAH, I heard it too
Very good news. Almost seems like Friday now.
Support NYCountryLawyer RIAA vs People
Gay marriage is already legal in all 50 states. No state has a statute on the books saying gays can't marry, and in fact many marriages end when someone discovers their spouse is gay.
A gay man who can't find a woman suitable for marriage is no worse off than me, a heterosexual man who can't find a woman suitable for marriage.
mcgrew's razor: Never attribute to stupidity that which can be explained by greedy self-interest
I would add that:
the judge didn't just make an error. He made the error because Ms. Thomas's lawyer, who should have told the judge about the National Car Rental case, didn't, and because the RIAA's lawyers -- who had an obligation under the Code of Professional Responsibility to inform the judge about the National Car Rental case -- also didn't.
So I expect one angry judge on July 1st.
Interestingly the chief architect of the RIAA's legal behavior won't be able to be there July 1st, as that's the day he starts his new job as a state court judge in Colorado. So one of his clones will have to take the heat for this misconduct.
Ray Beckerman +5 Insightful
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 guess technically it is, but that also raises the question of whether or not the amount of downloads has any bearing on the size of the penalty/fine. If MediaSentry can download from you to show infringement, can they do it 1000 times in order to try and increase the fine? I would hope the answer is "No", but what would the court say?
If MediaSentry downloads do not count as infringement, then the RIAA is pretty much screwed. It's going to be virtually impossible for the RIAA to prove distribution over the internet between independent parties. The only possibility I can think of is if they start getting trace data from ISPs showing P2P traffic.
Unix is user friendly, it's just selective about who its friends are.
1. Reproduce - This one is long, see next paragraph.
2. Distribute - downloading is not distributing.
3. Performed - downloading is not performing.
4. Publicly display - downloading is not a public display.
5. Make into a derivative work - downloading is not making a derivative work.
So the only possibility is reproduction. To my knowledge, no law or court case has addressed this specifically so all we have is conjecture. It could be argued that the downloader made a copy. What I think would really be the case is that the downloader requested a copy, but it was the uploader who actually made the copy from his hard drive to his network card. The reason I make the distinction is precisely because copies for copyrighted works are made all the time on a single machine. When I play the Flobot's "Handlebars" a copy goes from my hard drive to memory and at some point has to go through the CPU. So we can't obviously count every single time a copy is made. If we did, then every router that it went through would be held liable for making a copy. So the downloader requests a copy, then the uploader makes a copy, and that is where copyright infringement has occurred.
It's kind of like a guy on the street with a DVD burner and a list of movies he has. He can advertise it all he wants without committing copyright infringement. Then someone comes up to him and asks for one of his movies. He puts a blank disk in the burner, burns the requested movie onto it, and then passes the disk to the requester. The guy on the street committed copyright infringement at the point that he burned the movie onto the disk (reproduced) and handed it to the requester (distributed), but at no point did the requester commit copyright infringement. In the same way, the downloader did not commit copyright infringement.
Stop Global Warming!
Just say no to irreversible processes!
He realized that his mistake may have improperly influenced the outcome and now he has magnanimously given the person another chance even though it would have been easier for him to ignore it.
You can never expect that human actions will be without error. Judges, & lawyers all make mistakes like the rest of us. What stands out about this is that he did something about it. His actions are remarkable, and I applaud him.
If everyone else held themselves to the same standard, we wouldn't have this BS in the courts.
I prefer rogues to imbeciles because they sometimes take a rest.
Heterosexuals have the same problem, though. I'm a straight man. Suppose I meet a man I want to marry. I'm not allowed. My rights, as a straight man, are as restricted as the gay man's.
And yes, there's no reason straight men shouldn't want to marry each other. Lower taxes, for example. Maybe we could work out some kind of health insurance deal, too. No requirement to testify against each other in court, so my husband would make a perfect partner in crime, should I be so inclined.
But unlike marrying a woman, there's no griping about the toilet seat being up. Also, if I were to marry a straight man, and then one night I had a ladyfriend over for sex, my husband would not complain (unless the chick and I were obnoxiously loud or something). Don't try that with a wife!
Well, now you're just talking common sense and Liberty. That's a whole other subject.The next logical extension if this case is allowed to stand is that you can be prosecuted for putting down a book you are reading in a public place and not taking adequate care to secure it.
Right. I don't see how such an act fails to meet the criteria for "making available".
William Patry (copyright expert and Google general copyright counsel) has a very nice post about the "making available" precedent here.
And yes.
Ray Beckerman +5 Insightful
Ray Beckerman +5 Insightful
The basic citizen, with whom you seem to be so concerned, doesn't need to know the laws for reporting to the Securities and Exchange Commission. They don't need to know the laws about chemical pollution. If you get involved in specific activities, you're responsible for doing those activities in a manner consistent with the law. You don't need to retain information on the proper disposal of refrigerants, because most people will never deal with it at all, and most of those who do can simply follow the instructions. There's no persistent knowledge required.
There is no functioning legal system possible such that every person could ever understand the totality of law. It's a ludicrous idea, unless you're willing to throw out courts and jurisprudence altogether. People handle themselves just fine with a basic sense of right and wrong. Exceptions really are exceptions.
There is no single citizen actually responsible for knowing and obeying more than a tiny fraction of the law that a typical lawyer should have command of. People are socialized and raised to a sufficient degree of knowledge, most of which should be expected of a citizen without needing to be codified in law in the first place. Knowing how to be a decent person gets you nine-tenths of the way there. It's sadly a fading characteristic.
Just don't get caught. Judges don't like us thinking for ourselves and will punish you for it. Funny, jury instructions were the result because they consider us too stupid to think for our selves. We're not educated enough about the law to decide right from wrong... What about when the populace becomes wiser than the system?
Like if you find the defendant possessed 'n' ounces of 'y' then you must find the defendant guilty of distributing 'n'. Err no... Judge, I will find the defendant guilty of distribution if you've proven to me he was selling it. All kinds of sites on jury nullification exist that argue the error of judges instructions.
I remember one jury I was on. We were instructed at lunch break we were not allow to visit the restaurant and intersection where the incident took place. Bullshit. Me and several others, the first thing we did was to have lunch at the McD's where it all happened and discovered the Police were lying in their testimony (go figure). Oh ya, we weren't allowed to talk about it between ourselves either and we ignored that too. Without these facts we probably would have convicted an innocent man. Screw judges instructions. I can make up my own mind whats right and wrong and don't need the judge thinking for me.
Remember, the RIAA lead lawyer is being promoted to State Judge... You really want to listen to what he thinks or decide for yourself right from wrong?
-[d]-