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Thomas' Testimony and the RIAA's Near-Fatal Error
eldavojohn writes "The long and torrid trial of Jammie Thomas is in its second stage and in full swing. Yesterday, two major events took place: Thomas gave her surprising testimony and the RIAA was threatened for not disclosing new information to the opposing counsel. Thomas claimed she didn't know what KaZaA was before the trial started. She also admitted that the hard drive handed over to investigators was different than the one that was in her computer during the time of infringement. Her testimony from the first trial was that 'the hard drive replacement had taken place in 2004 and that the drive had not been swapped again since.' This is problematic because the new hard drive had a manufacturing date of 2005. The RIAA had its own troubles, almost losing all evidence from a particular witness when they added an additional log file to evidence without the defense being notified of it. The judge mercifully only removed that new evidence from the trial. It was related to whether or not an external hard drive was ever connected to the computer."
Sorry, "innocent until proven guilty" only applies to criminal cases, not civil cases
This is a civil proceeding, not a criminal one. "Innocent until proven guilty" only applies to criminal cases.
If she is innocent until proven guilty - why does she have to give up her hard-drive and "prove" her innocence? Nobody is forced to prove innocence. The RIAA should be given the challenge, without her hard drive, of proving guilt. /shrug (IE: external records, etc.)
First, this isn't a criminal trial. It's civil, so there's no concept of "innocence." So they only have to show that a preponderance of the evidence shows that she committed the acts in question. The burden of proof still lies with the plaintiff, but to show a preponderance of evidence, they still need *access* to the evidence.
RIAA shenanigans aside, this is how the justice system basically works: if you have some evidence, the judge will let you request other evidence that may be related to help make your case. Here, given the fact that an IP address linked to her was observed engaging in possibly illegal behavior, it's reasonable to request access to the hard drive to determine whether her computer was involved. Most people (and probably any judge) would see that as reasonable. On the other hand, if they requested a search of her car (for instance), that would probably get tossed because it's unlikely to be relevant.
What you're basically suggesting is that search warrants and discovery be made illegal. If that happened, lots of extremely illegal behavior would be impossible to prove. Enron comes to mind initially.
As always, I'm not a lawyer, I just play one in my mind.
I'm not a lawyer, but I believe this is a normal part of evidence discovery. One side makes an accusation ("you shared songs illegally") and tells the judge that additional evidence resides on the defendant's hard drive. The judge, if he/she accepts the argument, can order that the defendant surrender the hard drive - usually to some neutral third-party for analysis. The defendant can refuse but then their behavior looks suspicious and they risk angering the judge. If you anger the judge, you can quickly find yourself in jail for contempt of court. (It's usually a bad idea to anger the person who holds your future in their hands.)
My sci-fi novel, Ghost Thief, is now available from Amazon.com.
The RIAA's evidence is compelling.
The IP address was hers, with no WiFi, no NAT, and a password-protected Windows box
The username chosen was the one she's used online traditionally for 16 years.
The problem is, the nearly inevitible $100K verdict will not be justice, even if it is legally correct.
Test your net with Netalyzr
You don't need a grand jury for a civil case.
Canada: The US's more awesome sibling.
First, felony perjury is rarely prosecuted. Secondly, the RIAA has repeatedly said that it's not about the money. It's about the fear. (paraphrasing, of course). They want to make anyone afraid that if they get that letter, they could face years in front of a court, and lose everything to legal fees, judgement of insane proportions or not.
Canada: The US's more awesome sibling.
Yeah it is pretty steep. According to US Code, Title 17, Chapter 5, Section 504, subsection c 1-2 the minimum fine is $750 per item + legal costs of plantiffs with the option of up to 1 year in jail. So the absolute minimum if found guilty would be $21000 + whatever the RIAA's legal expenses cost. With two trials now I suspect it would be tens of thousands in legal fees. Incidentally the maximum penalty is 30k per item which would be 720k + legal + 1 year, so she already got a deal. The law might be unfair but I think society should hold you to the penalties that were in place at the time of the crime. The legislation should be changed, but as ignorance is no excuse, one can say that she ran the risk of a enormous settlement when she chose to infringe (assuming she's guilty). Its like the guy that speeds to work everyday because the fine is only $100 and the chances of getting caught are slim. You takes your chances and you takes your bumps.
RTFA. It's not just the one date. It's also the fact that Best Buy KNOWS when it was replaced, and it was AFTER she was informed she was being sued. The chronology is set. It happened in this order. 1) (Unlicensed?) investigators find that this user account "tereastarr@KaZaA" is sharing a whole lot of music. For some reason they think it's a good idea to PM this account through KaZaA and say "You're busted!". 2) AFTER THAT HAPPENED her HD "Breaks" and she takes it to Best Buy for THEM to replace it. They do so. This is confirmed by her receipts. 3) She says under oath and says it happened a year before the alleged infringement. The manufacture date strongly implies this is wrong, the receipts prove beyond any doubt that this is wrong. Did she just remember wrong? It was Feb 2005, that's pretty close to 2004. That alone isn't very damning. What's damning is that the user name "tereastarr" is the same as her PCs login ID, and her e-mail address. And right after they told this account it was being sued, she had her HD replaced and the original destroyed. "A hacker broke into my XP box and installed KaZaA and used it to share songs, and they used my own username to frame me, then by sheer coincidence when my PC got messaged I was being sued, which I didn't notice, my HD broke seconds later and I had to replace the drive, and since I didn't even get the message there was no need for me to remember exactly when it happened relative to the alleged infringement" doesn't strike me even as reasonable doubt, and you don't even need that much for a civil case!
ASCII stupid question, get a stupid ANSI
She doesn't.
I thought they were able to examine the drive by court order because they'd already gathered enough evidence of wrongdoing (through the ISP's logs) that she'd committed a crime. It's like saying that the police shouldn't be able to search your house because you're innocent until proven guilty: that's correct, until they've got enough evidence that the judge thinks the search is reasonable.
> Copyright infringement isn't a criminal offense.
Of course it is. If the volume is enough, and/or it's for profit, or pre-release then maybe the state/federal prosecutor's office will go after you.
Slashdot has had several stories about people facing jail time in criminal copyright cases.
First the court will have its expenses covered,
Which don't really amount to a hill of beans compared to what lawyers bill.
US Court Fees
When information is power, privacy is freedom.
The problem is they do not have to download from her, it is enough to make available.
That is false. The courts have already said that "making available" is NOT enough to qualify for copyright infringement. That's exactly why the first trial was thrown out. I assume that this time around the RIAA has to prove actual distribution.
Unix is user friendly, it's just selective about who its friends are.
A civil case doesn't require a verdict to be unanimous, but the defendant is still considered innocent until found guilty beyond a reasonable doubt.
No, the standard in civil cases is "preponderance of the evidence", which essentially means "more likely than not".,
Please stand clear of the doors, por favor mantenganse alejado de las puertas