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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.
Any chance that at least a transcript or audio recording will become available, eventually?
Undoubtedly a transcript will become available eventually. Here is the transcript of the first trial.
Ray Beckerman +5 Insightful
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
What you're missing is that she's already been found guilty once. And even though Media Sentry and the RIAA suck and I hate to see them win, a lot of tech savvy people, myself included, thinks the evidence shows she's guilty.
Nope. The judge gave the jury the wrong instructions, so she's not guilty-- the verdict was thrown out-- and it doesn't matter what you think the evidence shows, since you're not on the jury.
http://www.geoffreylandis.com
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?
Regrettably, trial transcripts are not public. Someone has to buy one. In this particular case the transcript cost more than $2000. I got some friends to contribute the money, and ordered it, but the court reporter went on maternity leave, and then there were other delays, I know not why. Eventually I returned the money to the friends. Subsequently, someone else bought the transcript, and provided me with a copy.
Ray Beckerman +5 Insightful
in civil court, evidence obtained illegally is admissable so long as none of the parties or their counsel were involved in the crime
The fact pattern you posit would not be applicable here; both the parties and their counsel were involved.
Ray Beckerman +5 Insightful
The ars article talks about MediaSentry needing a Minnesota license, fair use defense, expectation of privacy, and wiretapping laws. This summary talks about rules of evidence;
402 Irrelevance
403 Prejudice, Confusion, Waste of Time
602 Lack of Personal Knowledge
702 "Testimony by experts" (fact testimony or opinion testimony based upon "scientific, technical, or other specialized knowledge" must be based on sufficient facts or data, must be product of reliable principles and methods, and principles and methods must have been applied reliably to the facts of the case")
802 Hearsay
IANAL, but those seem quite different.
Why are transcripts not "freely" available to the public?
It's the system that has evolved; the court reporters and/or court reporting agencies make their living from selling the transcripts, in order to spare taxpayers the expense. Now that, with the advent of electronic filing of litigation documents, we have seen the importance of public access, maybe the system will change for transcripts one of these days. I certainly hope it does.
Ray Beckerman +5 Insightful
Ars posted a story days ago with better information than what the summary contains. The judge has already allowed the MediaSentry evidence and isn't buying most of the defense's excuses. I like NYCL a lot, but I am surprised he wasn't aware of that. http://arstechnica.com/tech-policy/news/2009/06/thomas-judge-bars-fair-use-defense-oks-mediasentry-evidence.ars
I was aware of the article and, more importantly, of the ruling to which it refers. That related solely to the motion to suppress on the ground of illegality; it had nothing to do with the Rule 702 objection.
Ray Beckerman +5 Insightful
Transcripts are not free because they are not automatically produced as part of the trial process. The usual process is for a court reporter to type into a special device called a stenotype, like a typewriter but designed for greater speed. The output of this device is not normal text but a sort of mechanical equivalent of shorthand. To produce a transcript, the court reporter has to manually convert from the stenotype record to normal text. The upshot is that producing a transcript is a time-consuming and expensive process. Since most cases are not appealed, there is no reason in most cases to produce a transcript. Whoever wants a transcript, most commonly a loser wishing to appeal, has to pay (usually the court reporter - most are independent contractors, not employees of the court).
There are some alternative systems, including "voicewriting", in which the court reporter speaks into a microphone (within a mask so that she will not interfere with the proceedings) and the resulting audio is run through a speech recognition system.
What is missing from the current system is posting of transcripts once made. If, say, the loser at trial pays for a transcript, that gets her a transcript but doesn't necessarily make it available to anyone else. If you are a third party interested in the case and would also like a transcript, you may have to purchase it, at full cost, from the court reporter, unless you can get a copy from the losing party. It would be good if there was a system such that, once somebody paid to have a transcript made, it was posted for everyone to use, as well, perhaps, as a system whereby people could subscribe to a transcript, that is, where interested parties could say: "I'd like a transcript and am willing to put up to so many dollars into the kitty."
The ars article talks about MediaSentry needing a Minnesota license, fair use defense, expectation of privacy, and wiretapping laws. This summary talks about rules of evidence; 402 Irrelevance 403 Prejudice, Confusion, Waste of Time 602 Lack of Personal Knowledge 702 "Testimony by experts" (fact testimony or opinion testimony based upon "scientific, technical, or other specialized knowledge" must be based on sufficient facts or data, must be product of reliable principles and methods, and principles and methods must have been applied reliably to the facts of the case") 802 Hearsay IANAL, but those seem quite different.
Yes those are quite different. The Ars article refers to this ruling, which deals only with the motion to suppress on the ground of illegality, and has nothing to do with the evidentiary objections that defendant filed.
Ray Beckerman +5 Insightful
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."
The Court would deny a motion to dismiss "without prejudice" but would grant a motion to dismiss "with prejudice". So yes the RIAA could drop this. That would perhaps be the smart play for them, but smart doesn't seem to be their game.
Ray Beckerman +5 Insightful