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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."
It's an issue of unknown unknowns... if you don't understand technical issues, you might not see why there's an issue in the RIAA suits that would call for a technology expert.
I'm a lawyer, but not yours. I wouldn't represent someone who thinks taking legal advice from Slashdot is a good idea.
Well if the evidence was collected incorrectly or illegally - then perhaps she's not guilty? Maybe that is an ideal thing to rally around. Due process. I'm terribly fond of it, myself.
Maybe it's for the best that only the police get to be the police, and not some corporate funded entity with a personal stake in the matter like Mediasoft. It would be nice for a court to make that point.
Weaselmancer
rediculous.
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;
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It's an issue of unknown unknowns... if you don't understand technical issues, you might not see why there's an issue in the RIAA suits that would call for a technology expert.
It's obvious that we're dealing with computer technology and if you don't understand it you need to hire a computer technologist. If I'm driving my car and I hear it making a new noise that sounds like metal on metal or something, I don't need to be a rocket scientist to know that I should take it to a mechanic, because it's a car, and that's where you take a car for an explanation. Actually, I am fortunate enough to be a mechanic ("fortunate" meaning I've learned by reading books, turning wrenches, and even taking some classes) and so I usually have some idea of what is happening before I actually take my vehicle somewhere, assuming I don't just fix it myself. (Some jobs are just too stinky for me to want to deal with them.) By the same token, a lawyer who is a technologist might have some idea of what the issues are. One that does not, but who is intelligent, should know enough to consult an expert, just as they would expect that same person to consult them on an issue of law instead of charging ignorantly ahead without them.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
> 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 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.'"
It's obvious that we're dealing with computer technology and if you don't understand it you need to hire a computer technologist
Unfortunately, "it's obvious" is not actually a legal argument.
You don't need to understand auto mechanics to know whether a car was stolen or not. The argument of whether, or what, you need to understand to understand whether a song was stolen or not is not, in fact, obvious.
http://www.geoffreylandis.com
Even if she is found guilty again, if she's found guilty on good evidence while bad evidence is thrown out that will be a win: It will set some precedent for what is good and bad evidence. (Especially if the RIAA gets some egg on their face for some of the bad evidence.)
It might not help her, but it would help the next person, who can refer to this case and say: 'This judge found these pieces of evidence inadmissible for these reasons', and tell that to their judge when the RIAA tries it again.
'Sensible' is a curse word.
When there is a huge disproportion of resources(time, money and legal counsel) between parties, sometimes judges need to take a more active role in ensuring the defendants rights are not being trampled and the plaintiff isn't blowing hot air up his ass to gloss over insufficiencies in their evidence.
Face it-lawsuits between companies and individuals are typically imbalanced.
You can't legislate goodness. Let each to his own destiny, by will of his freely made choices.
I find more often than not that lawyers, especially older male lawyers, believe they are of superior intelligence and if someone needs to explain something to them, it is somehow insulting or demeaning. Perhaps this is not limited to lawyers, but I have to say, all of the male lawyers I have known seem to reflect this pattern of not being open to new information.
But there are attorneys that specialize in certain areas. Malpractice lawyers tend to know a lot about medicine. There aren't many if any "technology" specialist lawyers and perhaps there should be.
This kind of sneaky wordplay put us in this situation in the first place.
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.'"
Maybe that is an ideal thing to rally around. Due process. I'm terribly fond of it, myself.
The problem is that if the conviction is overturned on due process ground, then you merely uphold due process (which is good in and of itself), but do not really counter RIAA's anti-piracy propaganda itself. For the latter, you really need to have people win cases against RIAA not on technicalities.
This kind of sneaky wordplay put us in this situation in the first place.
That is so true. Referring to patents, trademarks, or copyrights as property is a huge mistake.
On the other hand, referring to Copyright Infringement as Theft is confusing two entirely different crimes, so it's not sneaky wordplay when you refer to it as theft, just stupidity.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
..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 would hope that she is found liable only on good evidence. Due process is important not least because some day I might find myself in that chair for some reason.
I hope that if that day comes, the evidence against me will be scrutinised for correctness, and that the conclusions the prosecution draw from it are valid, not just an unquestioned piece of paper that my accusers' expert say proves my guilt.
I would also hope that when the judge instructs the jury on the actual law, and what is needed to find me liable, he actually gives the correct instructions. Kudos to the original judge for at least realising he'd made a mistake in what the law is, and corrected it somewhat by calling for a retrial.
I would also hope my punishment if found liable would be proportional to my offence, and be focused of making good my accusers losses, rather than an incredibly excessive fine in order to discourage others.
To draw the inevitable car parallel; if I was accused of speeding, I'd hope they would have some evidence that I'd actually been speeding, that I'd be allowed to examine it, that the judge wouldn't decide that merely sitting in a car capable of doing that speed would make me guilty, and if found guilty, they wouldn't fine me $222,000 for it.
Remember kids, it's all fun and games until someone commits wholesale galactic genocide.
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
I appreciate all these answers, and they do clarify the situation, somewhat.
However, I still have a problem with the whole process.
Being an advocate of open government, I believe that every word spoken in Congressional session should be recorded, unmodified, and made available to the public. (Current tradition allows for modifying of the Congressional Record after the fact, which I believe is very, very wrong.)
In the same vein, I believe that with the occasional very rare exception, all court cases should be recorded, and that record be made available (in plain English) to the public, at public expense. The government certainly spends as much money and more on stupider things.
That is just how I feel. I understand that there may be some practical difficulties, but I believe those could be overcome.