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RIAA Case, Capitol vs. Thomas #2, Starts Monday
NewYorkCountryLawyer writes "The RIAA's first trial verdict having been tossed out last year, the RIAA is coming back for a second round starting Monday. This time the trial will be in Minneapolis, rather than Duluth, and the defendant will have a team of pro bono lawyers on her side. But perhaps the most important new development is that this time, the 'technical' evidence garnered by MediaSentry and 'explained' by the RIAA's expert witness Doug Jacobson, will not get the free pass it got the first time around. In the 2007 trial in Capitol Records v. Thomas, no objection was made by defendant's lawyer to the MediaSentry/Doug Jacobson 'evidence' upon which the RIAA relied, and the evidence was admitted without objection. This time there will be no free ride, as defendant's tech-savvy lawyers have already filed a list of objections to the RIAA's proposed exhibits. Most notably, they attack the 'technical' materials submitted by MediaSentry and Dr. Doug Jacobson under Rule 702 of the Federal Rules of Evidence, which requires evidence based on 'scientific, technical, or other specialized knowledge' to be based on sufficient facts or data, to be the product of reliable principles and methods, and to be the result of those principles and methods having been applied reliably to the facts of the case. If the evidence fails to meet those standards, it is inadmissible. This judge has already shown acute awareness of these principles in deciding which subjects the defendant's expert could and could not address. This should be interesting."
I know it seems like an unlikely mix, but I've actually pondered adding a law diploma to my IT one. Today it seems like this is the license to print money...
But, when lawyers can't be tech savvy, why can't they hire tech people to explain to them where the (technical) holes in suits lie? They would save themselves a lot of work if they could basically say "your honor, my opponent based his suit on bollocks, and here's why". No judge on this planet wants to look stupid, that's why they can (at least here) call for expert witnesses (or counsels) themselves, without the need for either side to call one. Judges, though, are just like the average human: Overworked and sometimes lazy.
So they usually don't.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
This should be interesting.
This case seems like the exact type of case the RIAA avoids like the plague. Any time any of their methods are subjected to any serious scrutiny, they drop the case and run. They know any serious discovery will kill their racket.
So what's to keep them from dropping this like a radioactive potato when the bevy of tech savvy pro bono lawyers start to tear Mediasentry a new one? It would be nice if the case went on long enough for this Rule 702 thing to kill Mediasentry gathered evidence - which could hopefully be used as a precedent for other cases or requests for retrial. But at this point I'm not counting on the RIAA staying with this one long enough for even that much good to come from it.
Hopefully I'm missing something.
Weaselmancer
rediculous.
After following more and more of these cases, I regret that I haven't been able to actually see what goes on in the courtroom. (That's my curiosity talking. I also have a feeling that after seeing the first one, I won't be so regretful if I don't see a second one. :-) )
Any chance that at least a transcript or audio recording will become available, eventually?
> but I prefer journalism to at least have a pretense of being unbiased
You must be new here.
You also don't seem to be able to read and understand summaries.
>> This should be interesting.
That's far from saying "this should be a cut-and-dry loss", like you claim, eh?
<sigh> Why do I feed the shills....
The problem they have here is that as with last time when they lost, its basically a Dick Cheney move. They might be stomping all over people's rights, it might have no real justification and the method via which they obtain evidence are horrifically flawed, but they "believe" that this is protecting artist's rights and so the ends justifies the means.
The RIAA is just playing a series of Dick moves in the hope that if they create enough fear then people will accept it. The problem is that while Dick had some real terrorists to scare people about (and made up others) the RIAA are trying to turn Soccer Mom's into terrorists and it just doesn't work.
Surely their only hope is to get Dick "madder than a sack full of badgers" Cheney to claim its a national security issue and that Obama is just supporting terrorists by allowing this. This will pull in Fox News and suddenly the RIAA might have a chance.
An Eye for an Eye will make the whole world blind - Gandhi
NewYorkCountyLawyer is a well known lawyer and a respected expert in the area of RIAA legislation. When I read his summary, he tells, in neutral terms, about one of the obstacles the record companies have to overcome in this second trial. I can not say how the admissibility issue will pan out and I fully agree with Ray's "This should be interesting."
You are free to have your own opinions about the RIAA and file sharing, I have mine. I would certainly appreciate if you attacked the arguments instead of the writer, it makes for a more grown-up and polite discussion.
Now I'm off to wash my mouth.
extern warranty;
main()
{
(void)warranty;
}
> a lot of tech savvy people, myself included, thinks the evidence shows she's guilty.
I can understand that, but you do realize that AFAIK the evidence merely shows she was (possibly) guilty of "making available" and doesn't really show that she did actual distribution (or if you want to assume that putting up the files for sharing means at least some distribution occurred, it at least doesn't show that significant numbers of copies of the works in question were distributed)?
Or am I missing something here?
Maybe that has to do with his contempt of **AA lawers and thier tactics.
I have more than enough of that to go around, but there is none of that in my summary. All I was saying in the summary was demonstrably factual. At the first trial the defendant did not have an expert witness of her own, and did not challenge the RIAA's technical evidence under Rule 702. This time she does have an expert of her own, and has already challenged the RIAA's technical evidence under Rule 702. From that I extrapolate that last time the RIAA's technical evidence got a "free ride" or a "free pass", and that this time it will not. How can anyone dispute the accuracy of those facts, or argue against the terminology "free ride" or "free pass". If the defendant does not challenge the evidence offered by the plaintiff, it goes in.
Ray Beckerman +5 Insightful
Maybe I'm just being silly, but I prefer journalism to at least have a pretense of being unbiased.
You are, indeed, just being silly.
Would it kill NYCL to at least try to be a tad even-handed?
Probably not, but it would be phony. Isn't lying what people complain about when they talk about lawyers?
I'm not saying that's a deal breaker if it does, mind you...
I don't understand, it sounds almost like you want him to lie about how he feels even if it kills him.
Honestly, the best news source would be one that presents you with the biases of the authors of articles up front, and which provides you with competing articles with paragraph rebuttals to one another, so that you can get a feel for the different viewpoints. There are often more than two sides to a story, as well. Something like that might look a little bit like Slashdot, except with staff writers and professional editorship; personally, I often find the comments to be the most interesting and insightful part of a story (even when they're not mine.)
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Thanks, Ray, now I have plenty of bedtime reading!
BTW, I notice that those transcripts were posted on your blog more than a year after the trial itself. We Slashdotters are used to practically instant access to everything, so I'm curious: what takes so long for such transcripts to become available? Could the transparency of the court system improve in the future because of technological advances, or are there lots of legal issues involved which impede this?
You forget that the new Obama administrations in in the Media Cartel's pocket worse than Bush.
Joe Biden is beholden to the IP Lobby, and has been public reassuring them to no end. He is ultimately responsible for at least 6 RIAA lawyers being install at the top of the Justice Department.
Forget Dick, they've got Joe to pull the strings.
about. While nearly everyone wishes the defedent well we're also secretly thinking "I'm sure glad this isn't me in the dock" as well. So just by having the trial (win or lose) the RIAA /MPAA and their ilk keep their scare factor alive and paranoid in the public mind. And that was their intention in the first place too, eh? FUD.
"If you want to know what happens to you when you die, go look at some dead stuff."
I stand corrected :)
BTW, I like your blog, it's very interesting even to a legal layman such as myself. Glad to see that some lawers still fight the good fight.
Keep the bastards honest.
http://arstechnica.com/tech-policy/news/2009/06/thomas-judge-bars-fair-use-defense-oks-mediasentry-evidence.ars
Conceivably, the RIAA could move to dismiss, this is true. But it's just a motion and the court may decide that a motion to dismiss should be denied, requiring the RIAA to go through with. Sort of like saying "finish what you started."
Of course, I'm not a lawyer, but it seems rather plausible that a judge could deny a motion to dismiss for the prosecution just as much as for the defendant. That could make for a very interesting discussion in open court.
Just my $0.02.
The diversity and expression of human opinion is essential to human survival.
> Why are transcripts not "freely" available to the public? (I have no objection
> to a reasonable fee for printing.) After all, public money was spent on the case.
If you look at the Wikipedia article for "Court reporter" you will find out that most (all?) forms of court reporting do not directly generate a text transcript. Even if the court reporter is using a stenomask, what the reporter actually says/types should include notes of significant non-verbal courtroom actions, including facial expressions, gestures, "the defendant attacked his guard", etc., which could be recorded in idiosyncratic ways (and even with errors which are corrected later, from memory).
The official court transcript is currently generated in a second pass. From Ray's reply, I'm guessing it isn't actually generated in many cases, and someone has to pop up extra money for the second pass if they want it (or if a governmental official wants it, the government pays the court reporter extra money).
Actually the problem is not that NYCL would be lying by being even-handed, the problem is that his lack of even-handedness makes him phony, as he is giving a false iimpression of the situation, with his biases quite evident.
The writer implies, but the reader infers, and in this case the reader (you) is inferring something that is not there. Since Slashdot is not a news source, but a news, blog, and random idle shit aggregator, there is no implication of competent editorship or journalistic integrity, and it is only your failing if you assume them. You are the only one who has this problem; it is either idiotic or disingenuous.
Looks like troll-feeding hour is over; I will stop here. I can't imagine you'd have another argument worth dismissing.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
The defendant has got zip for assets. The RIAA won't collect anything. This case, therefore, only has symbolic value to the RIAA. The RIAA knows that it would be very stupid to lose a case of symbolic value. They obviously perceive that their case is strong. After all, they won the case the first time.
The defendant's lawyer probably hasn't devised a super-duper strategy in the mere three weeks that he has had the case. He has the same basic cards that his predecessor had. He's just going to put on a big show--maybe hoping to capitalize on a screw-up by the RIAA. A major screw-up is unlikely, because the plaintiff's law firm MU$T win this high profile case. I'll be curious to see if he pisses the trial judge off by wasting a lot of time on frivolous bullshit.
The only issue is damages. I expect that the trial judge is probably going to instruct the jury differently when it comes to damages this time around.
drinkypoo, what do you think was the giveaway about my "phony" hidden "bias"? Do you think it could have been the part of my Slashdot profile where I refer to my "doing battle with the RIAA & MPAA"? Or do you think it could have been that he saw the part on my blog where I describe the RIAA litigations as an "attempt to monopolize digital music and redefine copyright law", or my characterization of them as "sham"? Or do you think I tipped my hand by using the title "Recording Industry vs. The People" for the past 4 years?
Damn. And here I was trying so hard to keep my "bias" a secret.
Ray Beckerman +5 Insightful
This case seems like the exact type of case the RIAA avoids like the plague. Any time any of their methods are subjected to any serious scrutiny, they drop the case and run. They know any serious discovery will kill their racket.
So what's to keep them from dropping this like a radioactive potato when the bevy of tech savvy pro bono lawyers start to tear Mediasentry a new one?
I may be wrong but I think the defendant can file a counter lawsuit, which is what I'd do if I could. Not only would I do it but I'd try to get other defendants to join then file for class action status.
Falcon
Should there be a Law?
I agree that you should wash your mouth.
Is that you, Matthew?
Ray Beckerman +5 Insightful
..that this case is not a matter of whether Jammie Thomas is guilty or innocent (because I quite frankly have a negative opinion on this), but what legal standards should determine guilt or innocence, and I certainly feel the current standards fall short of high quality. I feel it's a little like Miranda, who was a thoroughly disreputable guy, but who got off in the wider interests of setting up future evidence and policing standards.
Donte Alistair Anderson Roberts - hi son!
Karma: Chameleon
I'm glad the evidence is being given a hard look. And I'm fine with the case being tossed because the evidence is garbage. Jacobson deserves that.
But I think the main issue should boil down to this: "Ok, maybe she shared a few songs on the Internet. So what? Anyone can do that. Millions do." Which is the more serious infraction, sharing files, or speeding? I would say speeding is a more serious offense. Even the lowly parking offense might be considered more serious. Therefore the penalty for file sharing should be lighter than the penalty for those others. Don't admit guilt. I have heard of a "no contest" plea, perhaps that is the way to go once the penalty is reduced to spare change.
And, isn't there a principle about equal applicability? That is, it's not fair to single out one person to make an example of when millions of others are in violation and don't know it and don't have any reason to think they are doing anything wrong. I particularly mean that the mere viewing of a few Youtube videos is extremely likely to violate many copyrights. One might as well be convicted for checking out library books and letting someone else borrow them briefly, not knowing that they are going to run copies. When everyone is guilty, the law becomes merely a means to inflict punishments arbitrarily, for any reason all at. Have people you don't like hauled in and convicted. I heard of a case where the city of Richardson, TX passed an ordinance forbidding "For Sale" signs on cars when they were in use. Some guy from another suburb who was trying to sell his car passed through and got nailed by the Richardson police. He beat the tickets and fines by applying this principle.
Intellectual Property is a monopolistic, selfish, and defective concept. It is "tyranny over the mind of man"
I don't care about your "bias." What I'm more worried about is this "perceived" overuse of your so called "quotes." What "evidence" do you have that people like having quotes to spruce up your "reporting?"
By the way, punctuation goes inside the quote.
I don't care about your "bias." What I'm more worried about is this "perceived" overuse of your so called "quotes." What "evidence" do you have that people like having quotes to spruce up your "reporting?" By the way, punctuation goes inside the quote.
"Thanks" for your "constructive" criticism. But if you'd sat through a deposition of the RIAA's "expert", as I've had to do, you'd be using quotation marks too when referring to their "evidence".
Ray Beckerman +5 Insightful
That AC stuff could very well be comical sarcasm.
Come on, he's human.
Do you expect him to not have a sense of humor just because he's a lawyer?
By the way, punctuation goes inside the quote.
Not always. Question marks go inside the quote only if the quote is asking a question (Rule 2). In this case, they were not, so his usage is correct.
I'm not the only one who has ever said they'd like Slashdot better if it had a bit more integrity
Yes, you show a lot of integrity by hiding behind your "Anonymous Coward" status. Most Slashdotters have more integrity in their pinky fingers than you have in your whole body.
Ray Beckerman +5 Insightful
That AC stuff could very well be comical sarcasm.
Come on, he's human.
Do you expect him to not have a sense of humor just because he's a lawyer?
I suppose it could be a joke, but if so, he's not really not doing a good job on the delivery. Instead, he's acting like Ed Whelan who just outed another blogger Publius. Didn't make Whelan look like anything but a jerk.
Maybe they should go hang out together.
Me, I think it shows his worth quite clearly. And it's quite negative. If he's meaning to make it a joke, then he'd better ask David Letterman for tips. Ok, maybe not Letterman....
You realize that by criticizing the RIAA evidence you are implicitly agreeing that the defendant would be financially liable were better quality evidence produced.
What's the biggest word in that sentence? WERE.
If better evidence WERE to be produced, then maybe. But so far none has, and (so far at least) we have that whole "innocent until proven guilty" thing.
And again, Mediasentry are not cops. They are not officers of the court. There are merely people with a story to tell. The defendant is another person with another story to tell.
So sure, IF better evidence were to have been collected, and IF she actually was guilty of something, and IF there was actual evidence to collect, and IF it was illegal to "make available", THEN maybe she'd be liable for some damages.
But that's a lot of IFs.
Weaselmancer
rediculous.
Personally I'm one of many who don't give a Monkeys about K Dawsons alleged poor editing or NYCL's alleged bias. Legions tend to be a bit larger in number than the regular handful of posts bitching about it. Theres somewhere in the order of 1-2 million registered slashdot users and most stories will attract less than 500 comments, with a handful of complaints.
complainers are probably out numbered by trolls and not necessarily a completely separate group.
Anything that can be used to wind up slashdot users can and will be used repeatedly.
In this particular case the interesting thing is can the prosecution prove their case with valid evidence, and what just what is valid evidence. Making available a list of file names isn't the same as offering copyrighted material. Emule for example will often respond with 1000's of file sharers having files named exactly what your looking for but usually the reported file size makes it obvious that the file is something else.
Lets get one thing straight if she was going to be fined a few hundred dollars, then perhaps "well she probably did it" is almost acceptable There's probably few people who haven't infringed copyright one way or another, who hasn't sung happy birthday without paying royalties.
But the RIAA doesn't want anything like a proportionate penalty but close on $250,000 for that sort of penalty there should be real indisputable legally gathered expert evidence.
It's not what she did thats bringing this penalty upon her but what everyone else did but never got caught doing that she's getting clobbered for.
Blarney Quality Restaurant, Plants
Seems to me that would be like "correcting" the impression that water is wet. And why in the world does he have to take a neutral stance anyway? That would be disingenuous.
[...] correct on logic, fail on idiom.
Actually, no. As the GP stated, the correct idiom is indeed 'I couldn't care less."
Laziness and ignorance have led to an increased usage of the incorrect form 'I could care less.'
This is not appropriate, but rather tolerated. If you don't have any qualms about 'teaching' English incorrectly, please continue doing so.
American English allows 'could care less,' but this improper use makes one seem less educated among those who know the correct usage.
I've taken the liberty of updating your post regarding the GP.
You are correct on logic [and have properly used the idiom.]
I was just curious since we've been beating the poor mare now for years and still nothing significant has arose from the situation.
Making available a list of file names isn't the same as offering copyrighted material. Emule for example will often respond with 1000's of file sharers having files named exactly what your looking for but usually the reported file size makes it obvious that the file is something else.
And that's the kind of thing that will make this trial "interesting". This time around there's an expert witness for the defendant, and there are seemingly very tech-savvy lawyers representing, who know and understand these things. The RIAA had a cakewalk last time; I don't think it's going to be quite so easy for them to bury the jurors and the judge in technobabble masquerading as evidence.
Ray Beckerman +5 Insightful
Help! Moderators! I fell into the trap, and fed the troll with the above comment, and now I've been modded "Flamebait".
Ray Beckerman +5 Insightful
Unfortunately, "it's obvious" is not actually a legal argument.
Well actually, in certain situations, it is. Except when we say "it's obvious" we do it in latin.
"I could care less" if you're lazy (REALLY lazy) is easier to say than "I couldn't care less".
Is that why it turned up?
I mean, the ****itiomatic**** phrase itself is "I couldn't care less" so the idiom they used and you said they failed on is wrong: they had the RIGHT idiom.
If you wanted NOT to be an arsehole and NOT to be wrong, you could and should have said something like "you are correct on logic, but the idiom you refute is not an acceptable idiom too".
Why can they not post the transcript?
The OP point was that this was a public court and public money and public offices and the transcript is of public importance. For all those reasons and more, the court holding copyright would ONLY be acceptable to ensure that the transcript isn't changed to misrepresent. NOT so that nobody can profit from selling copies,
In which case, anyone who gets a transcript SHOULD be allowed to post it online for anyone to read.
If not, why not?
That's the OP's question.
This certainly seems like a field that is ripe for enhanced technology. I imagine that part of the reason for keeping the stenographer (rather than using a computer) is that you've got a hard copy of the court proceedings, not a soft copy that could be "modified".
To invent on the fly...
Enhance the stenographer's machine with the ability to write to flash memory concurrently with the output to the tape. End both recordings with a matching, signed, hash of the data. In parallel to the electronic recording of the "shorthand", also record the decoded text and sign that as well. Append the hash'd decoded text to the paper output and you've got an independent (non-electronic) copy of the plain text's original hash.
I suspect that this just gets you an authentic copy of what was recorded by the court attendant and that this would need to be reviewed for correctness. It should, however, enable the process that produces the transcripts to be sped up.
However, you still have to pay for someone to be there to use the device and ifor the device itself.
The devices should be present in every court, just like there's a place for the judge to sit, as well as the jury, etc. Essentially, t should be part of the furniture.
The person using it - there's time involved. They should not be using their own device, only the court supplied ones would have the correct signing keys installed, thus 3rd party devices would not have verifiable output. IMHO, this should be part of the "court costs" that (usually) the loser pays.
"Help! I'm being repressed!"
Law School 101 Teacher: Let's get started. Blah blah blah blah blah...
Engineer Law Student: Hey, my instinct tells me that isn't truth, it is just lying!
Law School 101 Teacher: We're here to teach you to -think- like a lawyer.
I was wrong to think that the RIAA's technical witnesses, MediaSentry and Doug Jacobson, were not going to get a "free pass" or "free ride" this time around. They were subjected to no Daubert examination or challenges. I am bitterly disappointed.
Ray Beckerman +5 Insightful