RIAA's Request For Appeal Denied In Thomas Case

NewYorkCountryLawyer writes "The RIAA's request for permission to appeal from the decision setting aside its $222,000 jury verdict has been denied by District Court Judge Michael J. Davis. In a brief, 6-page decision (PDF) the Judge dismissed the RIAA's arguments that there is a 'substantial ground for a difference of opinion' on the question of law presented, whether the Judge had erred in accepting the RIAA's proposed jury instruction that merely 'making files available' could constitute an infringement of the plaintiffs' distribution rights. He likewise dismissed their argument that granting permission for the appeal would 'materially advance the ultimate termination of the litigation,' since (a) depending on the outcome of the trial, plaintiffs might not wish to appeal from the judgment, and (b) no matter how the appeals court rules on the 'making available' issue, the case will still have to continue in the lower court, since even if the RIAA wins on the 'making available' issue, the Court will still have to address the constitutionality of the large jury verdict, which may result in a new trial."

Comments

I've heard enough about the RIAA

[Adult film producer]

Fuck them. Will they not go away? I own 1800 cds collected over the last 15 or 20 years. I download the songs from the internet.. too lazy to rip em, so what? Fuck off already.

Re:I've heard enough about the RIAA

[b4dc0d3r]

Fuck them.
  -Adult film producer (866485)

Parroting your industry standard reply I see.

Re:I've heard enough about the RIAA

[Zontar The Mindless]

So? If you have a problem with him, then don't hire him to represent you.

Re:I've heard enough about the RIAA

[Just Some Guy]

I smell an ethical conflict of interest.

So do I. Your employers may dislike Mr. Beckerman for displaying them as the soulless vampires I believe them to be, but the rest of us think he's doing a good thing.

Re:I've heard enough about the RIAA

[ScrewMaster]

That's a truly odd accusation to make; my employer(s) had no influence nor relevance to my comment.

Well, you clearly missed the GP's point (or perhaps are deliberately misconstruing it.) Generally, those who express opinions similar to yours on Slashdot are considered to be RIAA shills. Frankly, the fact that the media people have taken such an obvious dislike to Mr. Beckerman in particular indicates that he's doing something right. If he's enriching himself over this he's no different than the majority of attorneys in this country. He's on the right side, and that's sufficient for most of us. I do suspect you're right in one sense: he's probably not driving a used Chevrolet, and isn't giving his services away for free. What, exactly, was your point again?

So far as impartiality goes ... well. Given that his blog refers to original legal documents whenever they're available makes it hard to claim any degree of journalistic bias or manipulation of facts (other than the fact he makes no bones about his opinion of the way RIAA attorneys practices law.) There aren't too many other sources of reliable information on this subject, anyway, and honestly some of us appreciate his efforts.

You're free to disagree, and you're opinion is certainly welcome so far as it goes. Just don't expect a lot of support for them in this particular venue.

Re:I've heard enough about the RIAA

[Gerzel]

Ironically Machiavelli never had a Machiavellian bone in his body. The guy was being honest about how he saw countries being run in The Prince; it wasn't really how he thought they should be run.

This is brought to you by the people to give the old Italian politico farmer a proper memory in the public consciousness committee or PTGTOIPFAPMITPCC

Re:I've heard enough about the RIAA

[Anonymous Coward]

So do I. Your employers may dislike Mr. Beckerman for displaying them as the soulless vampires I believe them to be, but the rest of us think he's doing a good thing.

Sir, I am a soulless vampire, and I find your comparison to be highly offensive.

Re:I've heard enough about the RIAA

[NewYorkCountryLawyer]

I'm personally rather sad we have had the first "too much of NYCL on /. posting" but I suppose fame and popularity always result a few detractors. It's people like him that have help restore a little of my faith in the (US) justice system. When I see large rich corporations throwing cash at cases just to make it harder for their much poorer opponents to defend themselves it's good to know there are people out there who will help the underdog. These cases are particularly redolent for myself and many slashdoters as they invoke a certain "there but for the grace of God go I" feeling. I would sincerely doubt Ray is becoming a rich (or much richer) man because of them. I would expect that most of his potential clients with any amount of money would rather pay the RIAA's pound of flesh and settle without going to court than risk several years disruption to their lives. Most of people he will be defending will be those who cannot afford to pay and so his only hope of ever getting adequate recompense will be if courts award fees in his favor, which I believe is a bit of a lottery at the best of times - at least he believes enough in his own skills and his take on the law to take that risk.

1. Represent poor and middle class people defending cases that could be settled for $4000 or $5000, in lengthy complex cases against defendants whose primary goal is to make the cases as complex and as expensive as possible...for which you receive little compensation.
2. Oppose giant multinational corporations, joined in a cartel, who have an army of lawyers and are willing to spend tens of million dollars per year pursuing the poor and middle class people.... for which you receive little compensation.
3. Spend hours each day doing research, obtaining and reading legal documents, and writing a blog for which you receive no compensation.
4. Communicate each day with lawyers and RIAA lawsuit victims from all over the world, for which you receive no compensation.
5. Communicate each day with media from all over the world, for which you receive no compensation.
6.???
Profit!

Beware

[MacColossus]

This is very welcome news. However, we need to remember that a cornered wounded beast has nothing to lose and can therefore be very dangerous. This isn't over.

Re:Beware

[Zontar The Mindless]

And *that* has to be the most clueless comment I have ever heard about a comment about the RIAA.

Re:Beware

[Anonymous Coward]

Hans? They let you have Internet access for Christmas...?

Re:Beware

[Idefix97]

Hans?! Is that you!

Judge's kids

[retech]

I cannot wait 'till the day the RIAA accidentally hits a judge's, congressman's, or senator's kids in a lawsuit. I wonder how long they'll be able to keep that lawsuit going.

Re:Judge's kids

[wmbetts]

They don't need to worry about that. If they do then they silently drop the case and score points and maybe even a "friend" Washington.

Re:Judge's kids

[AmberBlackCat]

There was a similar story mentioned on Slashdot. Some record executive, I think. His child was caught downloading music. Rather than making the child pay $3000, they made the child promise never to do it again. I wish that case could be used to set some kind of precedent for the rest.

Re:Judge's kids

[aztektum]

Drunken karma whoring!

Re-read it a few times

[Weaselmancer]

And it seems to be better news than simply the RIAA getting smacked on their request to appeal.

The RIAA claimed this: "there is a substantial ground for a difference of opinion on the question of law presented"

Concerning: "whether the Judge had erred in accepting the RIAA's proposed jury instruction that merely 'making files available' could constitute an infringement of the plaintiffs' distribution rights"

Now, I occasionally have a difficult time translating from Lawyer to English, but it sounds to me like the judge is not only saying "no you can't appeal" but "making available isn't copyright infringement, and there is no wiggle room to discuss the matter further because it's obvious that it's not."

Do I have that right, NYCL? Because if I do it really sounds like bigger news than a trivial appeal request getting smacked down. Sounds like the Judge just dropped The Big One.

Re:Re-read it a few times

[sexybomber]

Disclaimer: IANYetAL, but I'm a law student.

Usually you're right, the Eighth Circuit doesn't have to follow the Ninth Circuit's decisions (for example) and vice versa, but in this case, The Honorable Judge Davis does have to abide by that decision, since Minnesota's in the Eighth Circuit.

What "actual dissemination" actually is, though... that's an open question, and I think that's what they're trying to figure out.

I have no idea if I got that right, it's late and I'm on break. (And hence trying not to think about all things legal :-D )

Re:Re-read it a few times

[Paradise Pete]

The Honorable Judge Davis does have to abide by that decision

When I see that written in a context like this it always seems that it's in order to distinguish this Judge Davis from some other less honorable Judge Davis. As in "No, this one was by the honorable Judge Davis."

Re:Re-read it a few times

[NewYorkCountryLawyer]

Now, I occasionally have a difficult time translating from Lawyer to English, but it sounds to me like the judge is not only saying "no you can't appeal" but "making available isn't copyright infringement, and there is no wiggle room to discuss the matter further because it's obvious that it's not." Do I have that right, NYCL?

Yes you have that right. But there's another biggy in the decision which is a little more subtly presented. The judge is also implying that even if the 'making available' issue were not on the table, he would probably be ordering a new trial because of the excessiveness of the size of the verdict.

There is a simple fool proof solution to all this.

[3seas]

The RIAA shoudl just stop making the music available.

Too many ads

[Animats]

The "Recording Industry vs. the People" site has become incredibly ad-heavy. It now has layer ads that won't dismiss, a link farm, and regular Google ads. This thing has advertising from services I've never even heard of, like "shareasale.com". Amusingly, it has ads for RIAA-controlled music, and even for the iTunes store.

Block "st.blogads.com" to make it at least tolerable.

Re:Too many ads

[hostguy2004]

The "Recording Industry vs. the People" site has become incredibly ad-heavy. It now has layer ads that won't dismiss, a link farm, and regular Google ads. This thing has advertising from services I've never even heard of, like "shareasale.com". Amusingly, it has ads for RIAA-controlled music, and even for the iTunes store.

Block "st.blogads.com" to make it at least tolerable.

Before you get modded OT and NYCL will miss your post, I suggest that you politely email him.

I enjoy his many submissions to Slashdot, so perhaps people should consider donating to his website, instead of criticizing his advertising.

The judge said it best

[carlzum]

The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts. The myriad of copyright cases cited by Plaintiffs and the Government, in which courts upheld large statutory damages awards far above the minimum, have limited relevance in this case. All of the cited cases involve corporate or business defendants and seek to deter future illegal commercial conduct. The parties point to no case in which large statutory damages were applied to a party who did not infringe in search of commercial gain.

The term "piracy" has been misused on individuals. An individual may be guilty of theft, like a shoplifter, but it's not piracy. Someone that takes an item without paying for it is very different than a rogue company selling unauthorized copies of another company's product. The RIAA treats individuals like profit-seeking organizations, and until now they've been successful. It's refreshing to see a judge recognize the distinction. I believe most critics of the RIAA would be a little more sympathetic to their position if they were pursuing misdemeanor charges for stealing $0.99 songs.

Re:The judge said it best

[poetmatt]

As it's been said in the courts,

they're treating it like criminal matter but it's civil.

The reason is that you can't subpoena people's addresses and stuff like that if it's civil. Also, unlike criminal court, you absolutely have to pay the fines if you lose. Since there is no proof of distribution, they'd have to pay for every single case.

Re:The judge said it best

[sexybomber]

I believe most critics of the RIAA would be a little more sympathetic to their position if they were pursuing misdemeanor charges for stealing $0.99 songs.

I wouldn't be, for reasons I'll explain below.

You seem to have fallen for the RIAA line that "ZOMG PIRACY IS THEFT". It isn't. In order for something to constitute theft, somebody has to be permanently deprived of property. Not profits, not the possibility of profits. When somebody's deprived of profits, that's not theft, that's copyright infringement.

Theft is a criminal matter, punishable by possible jail time. Copyright infringement is a civil matter, punishable only by monetary damages. If you steal something, then yeah, I'm all for misdemeanor charges. Felony charges, even, if the value of the stolen goods is high enough. But I'm very, very wary of pursuing criminal charges for civil infractions, and you should be too. Would you have Tracy Thomas thrown in jail for a couple years, or perhaps longer, if the RIAA got their way? That's what could happen if you make a criminal case out of a civil dispute. Down that road lies fascism, my friend, and none of us want to go there.

Re:The judge said it best

[Dragonslicer]

"ZOMG PIRACY IS THEFT". It isn't.

Of course it is. It's also frequently murder. But it only really counts if you use a cutlass and wear an eye patch.

In order for something to constitute theft, somebody has to be permanently deprived of property. Not profits, not the possibility of profits. When somebody's deprived of profits, that's not theft, that's copyright infringement.

That's not necessarily true. Many, if not all, states have laws concerning theft of services. I'm not saying that copyright infringement is or is not theft, but I get really annoyed when people keep repeating the incorrect statement that theft must involve loss of physical property.

Re:The judge said it best

[Anonymous Coward]

Theft of services generally refers to failing to pay for a previously agreed upon service.

If I hire someone to write a song for me and then fail to pay them, that is theft of services.

If someone writes a song and I "steal" it, that is not theft of services. That is copyright infringement.

The theft of services usually has to prevent the victim from providing the same service to someone who would pay for it (because it was provided to you instead) in much the same way that property theft prevents the victim from being able to provide the property to someone who would pay for it.

Just an interlocutory appeal routinely denied.

[Animats]

This isn't a big deal either way. The judge denied an "interlocutory appeal", one made regarding some legal point before the decision in the case was final. Such appeals are rarely tried and even more rarely successful. The issue can still be appealed, just not until the current case is finished.

Congratulations

[symbolset]

If you can read this, you're now a criminal.

L'ENVOI
What is the moral? Who rides may read.
When the night is thick and the tracks are blind
A Friend at a a pinch is a friend indeed;
but a fool to wait for the laggard behind;
Down to Gehenna or up to the Throne,
He travels fastest who travels alone.

White hands cling to the tightened rein,
Slipping the spur from the booted heel,
Tenderest voices cry, "Turn again."
Red lips tarnish the scabbarded steel.
high hopes faint on a warm hearthstone --
He travels fastest who travels alone.

One may fall but he falls by himself --
Falls by himself with himself to blame;
One may attain and to him is pelf,
Loot of the city in Gold or Fame:
Plunder of earth shall be all his own
Who travels the fastest and travels alone.

Wherefore the more ye be holpen and stayed--
Stayed by a friend in the hour of toil,
Sing the heretical song I have made--
His be the labor and yours be the spoil.
Win by his aid and the aid disown--
He travels the fastest who travels alone.
- Rudyard Kipling, 1865-1936, from "The College Survey of English Literature", (c)1942, Harcourt, Brace and Company, Inc.

Yes, the author's life plus 70 years has passed. Unfortunately I took this work from a compendium that owns the rights of reproduction that will persist well into the next century. This bit our our culture has been stolen from us by lawyers and sold legislators. Under current law there is no legal difference between you downloading Britney Spear's latest attempt at vocal rehab and your browser loading this poem written nearly a century ago on this page. That's wrong. That's very wrong.

And now you're a dirty information property stealing criminal. You should be ashamed of yourself.

On the contrary

[butlerm]

Copyright does not protect portions of derived works that lack originality. That principle is the basis of the recent court decision Bridgeman Art Library vs. Corel Corp.. Unless the publisher has made substantial changes to Kipling's work, I dare say we are not dirty rotten intellectual property stealing criminals after all.

Re:What does it mean?

[NewYorkCountryLawyer]

Sorry to ask such an obvious question, but what does "making files available" mean? Say I lose my laptop or mp3 player and it is used by even a single user, or say they dump in on Limewire.... What then? What would happen if I lost in the US? (Canuck here)

Beats me.

There's nothing about it in the US Copyright Act.

It's just something the RIAA made up.

Re:Please translate OP into English

[NewYorkCountryLawyer]

I used to really enjoy reading Ray's posts because he had a knack for translating legalese into something a bit more human-readable.

I never had the knack for that; I speak Legalese. You're just being nostalgic.

The last few articles just read like someone's copied and pasted from court filings though.

I don't really have time for witty or insightful commentary. I'm so overburdened timewise I have to prioritize, and I came to a realization in 2005 that my priority should be the one thing that I'm doing that no one else is really doing, which is getting the litigation documents online so that the rest of the world will have access to them and can provide the witty and/or insightful commentary.

Has Ray's account been hijacked,

Yes

or has he just forgotten how humans think?

Correction. I have never understood how humans think.