Jammie Thomas May Face RIAA Trial Alone

NewYorkCountryLawyer writes "With her trial coming up on June 15th, Jammie Thomas has received a motion by her lawyer to withdraw from the highly publicized case, Capitol Records v. Thomas. Ms. Thomas said in a written declaration (PDF) obtained from her by her lawyer that she was not opposed to the lawyer's withdrawal, and waived any hearing on the matter. The court papers submitted by the lawyer (PDF) also indicated that the RIAA was not opposed to the withdrawal — i.e. it graciously consented to Ms. Thomas having no legal representation — but was opposed to any continuance (i.e. the RIAA wants to make sure that Ms. Thomas does not have sufficient time to find other legal representation, or to prepare to handle the trial herself, or to enable new counsel to prepare to handle the trial). Nice of them."

Comments

Hmm

[Hognoxious]

Bought off or warned off?

Re:Hmm

[paganizer]

I have to admit I'm sort of puzzled about this whole thing. I'm not a Lawyer, but I would happily offer to assist if I was; I've done loads of non-profit volunteer work. A lawyer friend in Nashville recently told me he would volunteer 80 hours to any RIAA case, if it was local.
They are HATED, and some of the people who hate them are Lawyers; there should be volunteers coming out of the woodwork.

Re:Hmm

[Maestro4k]

They are HATED, and some of the people who hate them are Lawyers; there should be volunteers coming out of the woodwork.

I think the problem here may be that Jammie Thomas' case looks like a lost cause. As I recall the RIAA has said publicly that they'll have no problem proving actual infringement (they had Media Sentry actually download some files from Thomas' alleged share on Kazaa), there was a serious possibility that Thomas may have deliberately handed over a hard drive that wasn't the original one as well. And don't forget that the jury very obviously thought she was lying, they could have awarded only $750 a song damages, but they chose $9,250 a song.

While the RIAA is evil, Thomas isn't doing those who oppose the RIAA a favor by going to trial again. She's very likely to loose, and that'll set a precedent in the RIAA's favor.

It is pretty scummy of the RIAA to oppose a continuance though, but then again, we knew they were evil already so it's not surprising.

Re:Hmm

[russotto]

Bought off or warned off?

Well, on the one hand, he's apparently withdrawing so he can retire to his personal Caribbean island. On the other hand, he cites as the reason for his sudden retirement stress the death of his two dogs and favorite horse. So I'd say "both".

Bad case

[maroberts]

I'm not terribly convinced Jammie Thomas is a great case to fight the RIAA with;

Have I misunderstood the paperwork? reading between the lines it appears her lawyer is withdrawing and he is concerned that he has information contradictory to the line of argument his client wants put forward, and as an officer of the court, money matters aside, he feels he cannot go on.

Re:Bad case

[Lloyd_Bryant]

I'm not terribly convinced Jammie Thomas is a great case to fight the RIAA with;

Have I misunderstood the paperwork? reading between the lines it appears her lawyer is withdrawing and he is concerned that he has information contradictory to the line of argument his client wants put forward, and as an officer of the court, money matters aside, he feels he cannot go on.

I read it differently. The motion is filed for in camera review, because it contains information that would be of use to the plaintiff, so he wants to keep it limited to just the judge. It's quite common for a lawyer to have information that contradicts his "official" stance in the case, so such information by itself probably wouldn't constitute a reason to withdraw.

It appears that money *is* the primary factor here. Jammie Thomas owes him a lot of money, and even though she's promised to make payments, he doesn't want to allow her to dig herself in deeper. He tried once before to withdraw from the case, but the court refused him permission to do so. This may have had something to do with his rather lackluster performance during the previous trial...

Re:Bad case

[who knows my name]

Yes, I think you have, she can't afford to retain her lawyer. It is unlikely she is going to be able to pay $100,000 of lawyers fees.

Re:Bad case

[Anonymous Coward]

He's a nice guy because so far he's done almost $130,000 worth of work on this case, for which he will never get paid for, as he mentions on page 3 this PDF file.

He also says this:

"In its previous Order the Court noted "that the Defendant has offered to continue
to make regular, monthly payments to Toder, which evinces a good faith effort, on her
part, to make good on her debt to him, and is also an indication that communications have
not, in fact, broken down between Toder, and his client, to such an extent as to warrant a
withdrawal." Order of August 31, 1997 (Dkt. No. 48). Please see Declaration of Brian
N. Toder filed concurrently (under seal) with the instant motion which demonstrate the
opposite.

So when he first tried to leave the case, it looks like the court said "No, she says she's gonna try to pay monthly sums, and you guys can work it out". Looks like she's not keeping her end of the bargain.

Re:When your lawyer withdraws, you're probably gui

[Manip]

Only bad lawyers walk away from a guilty party just because of their guilt. Hell that's what corp. lawyers could paid in the millions for.

More than likely a financial, reputation, personal, or conflicting issue.

where's the support from slashdot?

[rastoboy29]

You know, for all the vitriol on this board, it seems surprising to me that money isn't overflowing this nice lady's coffers for lawyers.

Re:where's the support from slashdot?

[goffster]

Maybe because no one particular feels like supporting someone who, apparently, is
"guilty as charged".

The facts of this case are very hard to dispute. If you read the comments of the jury, the outcome of the case is not in doubt.

I think people are far more likely to support someone who might, actually, not be guilty, or is having their rights trounced upon.

Re:where's the support from slashdot?

[ortholattice]

1. How can I be sure I'm sending the money to her and not some random Internet chump trying to make a buck?

2. In what form would she prefer to receive the money?

3. Where does she want the money sent?

If I can get an accurate answer to those three, I'm good for a C-note toward this.

4. Does she provide a verifiable accounting of the money received? Once her coffers overflow, good for her, but then my money might be better spent on another worthy cause.

Re:When your lawyer withdraws, you're probably gui

[NewYorkCountryLawyer]

When your lawyer won't even stick around to see you get torn apart in the courtroom, perhaps it's time to cut a deal.

I'm sure she tried hard to do that. But what the RIAA has no doubt done is to raise the settlement bar to a number she can't afford. Partly out of retribution. Partly out of a desire not to see the case settle at this juncture, because, in its present posture, the case is an embarrassment to the RIAA and a stern rebuke to their moronic legal theory. Partly because they know she's defenseless, having either no lawyer or having a lawyer who's there only involuntarily.

I know these guys. This is how they work. They smell blood.

Re:When your lawyer withdraws, you're probably gui

[Anonymous Coward]

Ray, I'm curious why you haven't said much at all as to why her lawyer might be withdrawing from the case. Aside from your customary, thinly-veiled swipes at the plaintiffs, I don't see anything addressing this. If her case is as strong as you have been implying consistently in your comments over the past months (and I think I've read every single one of them), it certainly seems odd that an attorney would bail on a slam-dunk case like this one. Surely there has to be another (more objective) explanation or two?

Thanks, /HJ

p.s. I'm not trying to be a troll, and I happen to dislike (and disagree with) the RIAA and their tactics as much as anyone else here. But it's equally hard for me to stomach an ostensibly neutral (in the sense of not being involved with this case), eminently qualified observer such as yourself constantly cheerleading for the defense, while giving no quarter whatsoever to the possibility that the opposing side's arguments might have at least some merit.

Re:When your lawyer withdraws, you're probably gui

[NewYorkCountryLawyer]

I'm not trying to be a troll, and I happen to dislike (and disagree with) the RIAA and their tactics as much as anyone else here. But....

I suspect you are a troll, but...

1. He is leaving because he hasn't been paid.

2. I have never expressed any opinion about the underlying case; I am not familiar with the facts of this particular case.

Re:Put your opinion in a reply, not in summary

[NewYorkCountryLawyer]

If you have some opinion on the topic, reply like everyone else.

Usually I just report facts. Occasionally I put in an opinion, clearly identifiable as such. The Slashdot editors would take it out, or reject the story altogether, if they found it inappropriate. If you find it inappropriate, sorry.

Re:When your lawyer withdraws, you're probably gui

[Lloyd_Bryant]

Ray, I'm curious why you haven't said much at all as to why her lawyer might be withdrawing from the case. Aside from your customary, thinly-veiled swipes at the plaintiffs, I don't see anything addressing this. If her case is as strong as you have been implying consistently in your comments over the past months (and I think I've read every single one of them), it certainly seems odd that an attorney would bail on a slam-dunk case like this one. Surely there has to be another (more objective) explanation or two?

Not NYCL (and IANAL to boot), but I don't think this case is a "slam-dunk". Yes, the judge messed up big time with that jury instruction, and with a binding precedent that the plaintiff must show actual distribution (as opposed to "making available"), the RIAA's case doesn't look all the rosy. But there's still one issue that I don't believe has been resolved - do the downloads made by MediaSentry (under whatever name they're using this week) constitute unlawful distribution? Because that is the *only* distribution that the RIAA's goon squad can actually prove, and there's some case law that seems to say that the distribution has to be to the public, and distribution to agents of the copyright holder don't count.

Re:When your lawyer withdraws, you're probably gui

[Timesprout]

the case is an embarrassment to the RIAA and a stern rebuke to their moronic legal theory

I have never expressed any opinion about the underlying case; I am not familiar with the facts of this particular case.

So which is it?

So this is justice in America

[Anonymous Coward]

Is this the kind of justice we can expect in America? Having your life financially ruined by astronomical damages for copying songs?! How can any sane judge with any sense of justice even allow this to continue?

We all knew stories about backward country with religious zealot wielding harsh laws punishing poor oppressed victim for seemingly trivial offense, but this kind of cases are telling you the America is not that much different, it is just that corporates+money have replaced the religious zealots+dogma.

Re:So this is justice in America

[NewYorkCountryLawyer]

Is this the kind of justice we can expect in America? Having your life financially ruined by astronomical damages for copying songs?! How can any sane judge with any sense of justice even allow this to continue?

This particular judge seems to be aware of the problem. On September 24, 2008, he wrote:

"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs."

Re:So this is justice in America

[Dun Malg]

So don't copy songs if you cannot afford the damages. Copying songs is not necessary to one's life.

That's a separate issue. Even if nobody ever violated this law, the damages allowable under the law are still utterly ridiculous. Bad law is bad law, and bad law needs to be changed.

Re:So this is justice in America

[NormalVisual]

Are you intending to argue that listening to music that was produced by someone else (at a cost to the producer) is an inherent natural right of human beings and therefore downloading it (without compensation to the producer) constitutes no moral or ethical injustice?

I will.

The way it's supposed to work (in the US, anyway) is that when someone creates a work, it's owned by society. However, understanding that people need to eat, they're given an exclusive right to distribute what they create for a *limited* time, the idea being that it will encourage them to keep creating new works, but that the work will revert back to society where it will enrich the cultural pool. Problem is, the whole concept of "limited time" is now one of a mere technicality, as copyright terms extend well beyond the length of the author's lifetime. Apparently, as long as Congress doesn't define the term of copyright as "forever", it's not considered to be at odds with the intent of the Constitution. This is ridiculous.

Distributing a tune recorded by Britney Spears should probably be considered copyright infringement. All of her "work" is recent, and she probably should expect to have at least a few more years of copyright to profit from. Distributing a tune recorded by the Beatles most definitely should not. In the 45 or so years since their songs were recorded, not only have they recouped their production costs, but all four members became fabulously wealthy as a result. There is/was no further need to provide the financial incentive to create for them (especially since half are dead now), and continuing to grant copyright on their works has now become a very real theft (in the literal sense) from society.

Re:So this is justice in America

[mpe]

The way it's supposed to work (in the US, anyway) is that when someone creates a work, it's owned by society. However, understanding that people need to eat, they're given an exclusive right to distribute what they create for a *limited* time, the idea being that it will encourage them to keep creating new works, but that the work will revert back to society where it will enrich the cultural pool. Problem is, the whole concept of "limited time" is now one of a mere technicality, as copyright terms extend well beyond the length of the author's lifetime.

Which may well have the opposite effect. Whereas if the copyright term were for a moderate period of time (5-10 years) they would actually have a reason to continue to produce new works.

Re:So this is justice in America

[Wildclaw]

Are you intending to argue that listening to music that was produced by someone else (at a cost to the producer) is an inherent natural right of human beings and therefore downloading it (without compensation to the producer) constitutes no moral or ethical injustice?

Yes. That basically sums up my opinion.

Real injustice is to restrict the poor from experiencing all the culture ever produced even though it is both technically and economically (the poor can afford to pay for the copying himself by using file sharing) possible. Of course, we don't want the creators to not get paid anything for their work, but keeping a pay per copy system is simply unproductive in a world where we can make copies so easily. It is nothing more than destructive luddite behavior.

If you're a programmer, have any juicy source code for me to look at?

You can take a look at a couple of the plugins written for the SRS program of anki. I have written this program that help you to memorize go games. But I really don't feel like spending time uploading the source code to it right now unless there is some real demand for it. There is also this program (includes sourcecode) which I use to track tv episodes I have watched. It is a really outdated version so don't expect it to work for updating against the internet. But I did provide the source code so you can work it from there. I simply just picked something that was easily on my home page account.

As for source code produced for companies I work for. I won't share that here. Not because I care personally. I would gladly share it. But I could get in some real trouble for it, and while I do believe in civil disobedience, you have to weigh risk and reward.

Also, I don't really see the point of this exercise. File sharing is about copying information that has already been put out to the public and without wasting time or resources from the original creator. That is basically the opposite of me publishing never before published code (the second link) and spending time doing so.

Re:When your lawyer withdraws, you're probably gui

[KillerBob]

do the downloads made by MediaSentry (under whatever name they're using this week) constitute unlawful distribution?

MediaSentry is an unlicensed investigator. As such, any evidence they gained is inadmissable.

Re:When your lawyer withdraws, you're probably gui

[NewYorkCountryLawyer]

the case is an embarrassment to the RIAA and a stern rebuke to their moronic legal theory

I have never expressed any opinion about the underlying case; I am not familiar with the facts of this particular case.

So which is it?

Fair question. Let me clarify.

I have never expressed any opinion about the underlying facts. I.e., I don't know what Ms. Thomas did or didn't do, or what was going on with her computer, etc.

I do know that (a) Jacobson's testimony, upon which plaintiffs' entire case rested, was bogus and inadmissible; (b) the plaintiffs' legal theory, which has now been rejected by the Court, was bogus; (c) plaintiffs have no evidence that defendant was a "distributor'; and (d) their statutory damages theory is unlikely to pass constitutional muster.

Re:opinion in the summary

[NewYorkCountryLawyer]

I included enough to establish context. You left out the sarcastic ending, "nice of them". Had I simply quoted that last sentence, it wouldn't have been clear how it meshed with the rest. I get the idea that I should have saved this criticism for a less-well-known submitter who isn't put on a podium by moderators. I really appreciate having NewYorkCountryLawyer as a contributor to Slashdot, but I wasn't going to play favorites when criticising a common practice in article summaries. NewYorkCountryLawyer does have a point that I really should criticize the editors, as they are the ultimate gatekeepers. So in retrospect, I apologize for the criticism and hope to better target it in the future.

It doesn't matter how "well-known" I am, or in what regard I am held. If I was wrong I was wrong. Maybe it wasn't the apex of journalism to throw in my comment "Nice of them"; but it was hard for me to resist after explaining that the RIAA's position was:

1. OK for her to have no lawyer to help her.
2. Not OK for her to be able to (a) find a new lawyer, (b) give her new lawyer enough time to prepare, or (c) if she can't find a lawyer, for her to prepare.
3. ????
4. Profit!

After all, I have to have some fun, too.

Lawyers are like arms dealers

[Anonymous Coward]

They play both sides, and cut their losses and run if things get sour.

Our NYCL makes out to be a good guy (and I'm sure he is personally), but don't get confused by the fact that he's defending "our side" of the battle against the RIAA. He won't do anything that isn't in his business interests either. Ethics don't come into it for lawyers.

So yes, this is the state of "justice" in America. It's a business.

(Worth noting that Europe is somewhat unique in the world in this area. While EU justice is far from perfect, the word "justice" does actually mean something *strong*, and your ability to pay has very little bearing on the process. It's one of the aspects of Europe that has survived with high integrity, amid generally falling standards.)

Re:Lawyers are like arms dealers

[Paradise Pete]

He won't do anything that isn't in his business interests either. Ethics don't come into it for lawyers.

I don't personally know Mr. Beckerman, but based on what I've I'd say that ethics enters into nearly everything he does.

Re:Lawyers are like arms dealers

[Jane Q. Public]

If "the best job they can" is to bring in unlicensed investigators as their only evidence, and use questionable legal theories, and (admittedly) choose to sue housewives and schoolchildren as "examples" in order to "intimidate" others... then yeah, their ethics are very highly questionable, whether you think they are nice guys or not.

Re:When your lawyer withdraws, you're probably gui

[NewYorkCountryLawyer]

Reading the Toder memorandum, it seems that Ja[m]mie's lawyer isn't getting paid.

That's what it's all about. Most lawyers, like most other people, don't like to work if they're not getting paid for it (unless that's what they agreed to do, which he didn't). Lawyers like anyone else have families to support and bills to be paid.

Donation site

[debrain]

Why doesn't Ms. Thomas set up a legal fund donation page via PayPal, for example? I'd contribute some funds to this cause. It deserves attention.

Has she sought legal aid? Or the support of the ACLU, EFF or a law school? Her time is running short. This is an unfortunate situation because the likelihood of setting an important precedent very favourable to the RIAA is quite high, now.

Re:When your lawyer withdraws, you're probably gui

[Fieryphoenix]

I care just as much that the RIAA not behave outrageously towards guilty defendants as for innocents. If a tactic or procedure is not kosher, it's not kosher no matter who's in the box.

Re:HAHAHAHA

[NormalVisual]

No, it's not. It's documented, billable time that Thomas' lawyer could have spent working on other cases that produced real income, that is now gone forever.

I don't agree with the way things are working out for Thomas, but don't dare say this lawyer hasn't incurred a very real loss.

Public defenders

[Jimmy_B]

Individuals defending against lawsuits from corporations should be given public defenders. The only reason that right isn't in the Constitution is because corporations didn't exist at the time it was written.

Re:Put your opinion in a reply, not in summary

[Hatta]

Please, I am not interested in reading someone's blog here

Slashdot IS a blog. Maybe you should go somewhere else?

Re:When your lawyer withdraws, you're probably gui

[edward2020]

Nope - not guilty. Perhaps liable.

You do know the difference between criminal and civil law, don't you?

Re:HAHAHAHA

[Xaoswolf]

also. lawyers aren't there to always win a case. Sometimes you need one just to help get a reduced sentence, or to settle out of court. Not to mention that they also already know what paper work or forms you may need to file to assist with what it is you are trying to do.