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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.
Sorry, I got lost in the legalese there. Someone want to help?
Oops, I messed up.
Further Translation: A higher authority already had an established precedent which contradicts his instructions to the jury.
It appears this further backs the statement that simply "making available" isn't enough.
RTFG - Read The F#$%ing Google!
The judge didn't take a higher court's ruling on what constitutes infringement into account when giving instructions to the jury.
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
Wait a second! You mean that for violation of distribution rights to actually happen, copies have to be distributed?? I wish somebody had said something sooner!!
sigh...
I guess the courts getting a clue later is better than not at all...
wow, I think someone needs a big nap.
Insert funny smart-ass comment here.
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.
"You're never ready, just less unprepared."
> However, all you listen to Kimya Dawson, so nobody has downloaded anything yet.
So you watched "Juno" too, huh?
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.
Yes... For me, it was as if millions of wizards cried out in terror and were suddenly silenced.
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.
upon the advice of my lawyer, i have no sig at this time
Is the friend obligated to please the court?
It's slightly clearer to those who don't understand Latin, though most people would still have to look it up.
upon the advice of my lawyer, i have no sig at this time
It's not just democracy, but this judge deserve real kudos for having the backbone to admit his error. Too often we here of those in power who realize they have made a mistake, and cover it up in lies or denial (often making worse mistakes in the process).
Rather than just referring to him as "the judge in Capitol V Thomas", his name is "Judge Michael Davis." If anyone happens to know him, I'd say that it's about time to congratulate him for being man enough to step up and make this admission.
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.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
am I making available? If someone takes it have I just broken the law?
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).
www.cgstock.com
Here's a better one: Someone sees a jar labeled poison on your windowsill and turns you in to the Poison Industry of America, who file suit against you for having poison, which their clients have a patent on. However, all you had was a jar labeled poison, and no one actually proved that it contained anything but water, let alone the PIA patented poison.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
Umm yeah, my post clearly indicated that they were equivalent. The question is why the summary did not include the
common phrase amicus brief. Even for the uninformed it should not be hard to figure out given the similarity to amicable.
Were that I say, pancakes?
Of course, then the DA is going to charge you with "listening to Kimya Dawson"....
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.
I thought that it was also the case that a motion for summary judgment could be granted when the facts were in dispute, but even if you consider the facts under dispute in the way most favorable to the one defending against the motion, they would still lose as a matter of law.
E.g. I'm suing you for breach of a written contract where you promised to give me your first born child as a slave in return for the time I deleted spyware from your computer. You dispute ever signing such a contract, but even if you did, the terms would be unenforceable so you could still probably get a summary judgment to dismiss my case.
Maybe that example sucks, but that's the gist of what I had heard.
The enemies of Democracy are
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.
Realities just a bunch of bits.
"(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution."
http://www.copyright.gov/title17/92chap5.html
so just uploading to a publicly accessible computer is infringement.
The Kruger Dunning explains most post on
" - Offering it to be downloaded may not be "nice" but no laws are broken until somebody actually DOES download it. "
nope:
(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.
http://www.copyright.gov/title17/92chap5.html
Bolded by me.
The Kruger Dunning explains most post on
What if you made files available on the Internet and nobody downloaded them?
This leads inevitably to the question: What if you made war on the RIAA - would anybody download them?
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
For starters, you don't "upload" to a P2P network. An "upload" only occurs in conjunction with its matching "download" onto another computer. It's a single transaction that has two different names applied to it depending on which end of the transaction you are viewing it from.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
And the 8th District Court of Appeals agrees with me, so while IANAL, I'm going to go with what they say.
The enemies of Democracy are
And the 8th District Court of Appeals agrees with me, so while IANAL, I'm going to go with what they say.
The enemies of Democracy are
Ah well that makes sense.
The enemies of Democracy are
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.
Let's not rush to judgment. If there is a recorded time stamp of a *transaction* (which consists of *two* parts, the "upload" and the "download"), occurring at a specific IP Address alleged to finger a specific Person at a specific location, and the defendant can produce evidence that she was elsewhere, such as at work or on vacation, when the alleged illegal transaction occurred, who is responsible for the transaction?
However, a contrary example might be you bury some illegal substance in a public park and the other party retrieves that illegal substance at a later time.
But in the case of "making available" on the internet, no "upload" occurs until a simultaneous "download" occurs. The data bits are always in separate unique discrete locations until the transaction wholly occurs (in so far as it constitutes copyright infringement). There are no previously burned cds sitting in a truck behind a warehouse being sold with hijacked cigarettes, nor are the files first copied ("uploaded")to a neutral location in cyberspace.
"From DNA to P2P, we are all Copycats now. Go Go Copycat Power! Copycat Powers activate! Form of, a Copycat." --monxrtr
Only if it's a "friend with benefits".
Please stand clear of the doors, por favor mantenganse alejado de las puertas
I love how you use the "ae" ligature in the singular form, but not in the double form.
He didn't use either. That was a direct copy-paste from Wikipedia.
The Unicode standard is over 20 years old. Why does Slashdot not support it?
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]-
at least in criminal cases. I was recently on a jury for a felony theft case, and there were three basic requirements to prove guilt: 1.) that they actually committed the theft, or were influential in facilitating the crime. 2.) that the value of the item met the minimum for a felony. 3.) that they actually intended to deprive the victim of property.
If you can't prove intent, you can't prove guilt. The two differences here are it's copyright infringement not theft (and they aren't the same), and it's a civil case. That means the burden for proof is pretty low.
To prove the intent bit (and I guarantee it's in there) they only need to prove that it is more likely the defendant intended to distribute than not, since this is civil not criminal.
If it were a criminal case the RIAA/MPAA wouldn't have a prayer in these cases.
Security is mostly a superstition... Avoiding danger is no safer in the long run than outright exposure. - Helen Keller
Unfortunately, the Supreme Court recently said that saying you have child porn available is a criminal act even if you don't actually have any. Hopefully that ruling won't be conflated to encompass copyrighted works illegally offered over P2P, falsely or not, but I'd bet it will (not an offer for on-line gambling). That ruling wouldn't fall under ex post facto in Jammie Thomas' case.
Oh, say does that Star-Spangled Banner entwine / The myrtle of Venus with Bacchus's vine?