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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?
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?
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."
http://arstechnica.com/tech-policy/news/2009/06/thomas-judge-bars-fair-use-defense-oks-mediasentry-evidence.ars
And why are you replying to someone who replied to a troll, giving more attention to this thread, and therefore to the original troll?
I never said I was the brightest light in the firmament.
(sigh)
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
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.'"
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
You must have missed the whole Pirate Bay trial in Sweden where the record industry guys completely failed to do basic homework on the relevant technology by submitting flawed screen shots as evidence. Yes, they won the trial but seemingly on the say so of an allegedly biased judge rather than on the merits of the case they put before the court.
So, if the plaintiffs can't manage to submit evidence of an actual infringement to a trial which was covered by media across the world, what makes you think their counterparts in this case would do better? If anyone is in danger of pissing off a judge due to frivolous bullshit my money would be on the RIAA.
..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 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
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."
Well there are probably many issues in this particular case. There is no single "main" issue. A legal case is like a chain; it is as strong as its weakest link. From what I have seen these past 4 years, there are a number of weak links in the RIAA's chain.
Ray Beckerman +5 Insightful
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
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
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