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How RIAA Case Should Have Played Out
NewYorkCountryLawyer writes "If a regular 'country lawyer' like myself had taken a case like the RIAA's in Capitol Records v. Thomas-Rasset to court, he or she would have been laughed out of the courthouse. But when it's the RIAA suing, the plaintiffs are awarded a $1.92 million verdict for the infringement of $23.76 worth of song files. That's because RIAA litigation proceeds in a parallel universe, which on its face looks like litigation, but isn't. On my blog I fantasize as to how the trial would have ended had it taken place not in the 'parallel universe,' but in the real world of litigation. In that world, the case would have been dismissed. And if the Judge had submitted it to the jury instead of dismissing, and the jury had ruled in favor of the RIAA, the 'statutory damages' awarded would have been less than $18,000."
From Wikipedia, the source of all knowledge:
> The newer (September 2008) editions have a total of $20,580
That wouldn't go far to pay off $1.9M. Perhaps if you had the most valuable set ever:
> The Guinness Book of World Records states that a set worth $2,000,000 and made of
> 23-carat gold, with rubies and sapphires atop the chimneys of the houses and hotels,
> is the most expensive Monopoly set ever produced.
but just barely!
There's a company that makes blow-up car passengers to help scare off rapists. Do you really believe that they should rape people to make sure their product sells well, or do you think you might have forgotten about ethics somewhere along the line? ;)
The blog post ignores the fact that a trial is a dynamic process. Had he made the arguments he lists, then RIAA lawyers would quite likely have countered them with appropriate arguments and evidence. For example:
Liability-Reproduction right
Plaintiffs failed to introduce an iota of evidence that Jammie Thomas-Rasset had made a single copy using Kazaa.
Result: directed verdict on reproduction right.
If he made that argument at trial, the RIAA would almost certainly have introduced evidence that bit-for-bit identical copies of the songs in question are available on Kazaa, that such an identical copy is unlikely to have occurred if she ripped the song herself, and that she didn't own the albums in question. Circumstantial evidence, perhaps, but probably enough to get the issue to the jury instead of a directed verdict.
Some of his statements are questionable as a matter of law:
The jury should have been instructed that a "work" is an album, and that multiple mp3's from one album constitutes a single "work".
There is not particularly strong precedent on this issue. Some courts have held that this is the case, it's true, but as best I can find they were only district courts and not in the same circuit as Minnesota (where the Thomas case was held), further diminishing their already merely persuasive authority. I do not believe there is any mandatory authority on this point for the District of Minnesota, which means that the RIAA lawyers may well have been successful in persuading the judge to adopt a one song, one work basis for calculating statutory damages.
Some of his statements sound impressive but wouldn't have made a difference:
The jury could have been instructed that no statutory damages could be awarded as to any work whose copyright registration effective date was subsequent to the date of defendant's commencement of use of Kazaa
A quick check at the US Copyright Registry of a random selection of the songs that Ms. Thomas infringed shows that they were registered many years ago, in some cases over a decade ago, and easily predated any infringement by Ms. Thomas.
Ultimately, this is about drumming up interest in his law firm and ad revenue from his blog, which Slashdot happily hands him about once a week or so. It also does a lot to poison the potential jury pool for future copyright litigation, which is of great interest to a lawyer who works those kinds of cases on the side of the defense. One should take everything Mr. Beckerman says about these issues with a grain of salt appropriate to the magnitude of his self-interest.
In short, this is nothing but Monday morning quarterbacking, and not particularly good quarterbacking at that. It should also tell one something that most of his legal arguments are not backed up by citations to relevant authorities.
There are several issues that need to be determined.
First - suppose you run a store, and some kid comes in, steals a candy bar, and eats it. You call the law, you call the parents, everyone shows up. Most definitely, someone owes you SOMETHING. The candy bar has a street value of about a dollar. (Oddly, that's pretty close to the street value of a single soundtrack.) What do you demand as recompense? Most store owners don't want the dollar, because they are pissed off. Most store owners don't demand a million dollar payoff, either. Among other reasons, neither the parents, nor the cops, nor a judge, nor any jury is going to go along with such a thing.
So - what is reasonable? Personally, I make the KID pay for his candy bar, by working it off. Tell the parents that he can work in the store for a week, cleaning, mopping, or whatever, OR, you'll take the matter to court.
Compare that to RIAA. They want THOUSANDS of dollars for a ripped off song which has a similar street value to my candy bar. Do you not think that is preposterous? Do you not think that there are issues that need to be resolved here?
In my most honest opinion, Jammie owes the record companies a couple dollars to pay for her downloaded songs. She owes something in the way of punitive damages. 24 songs, at a buck apiece, is 24 bucks. Drawing on ancient tort law, let's treble the damages, so she now owes 72 bucks. If she had been offered this deal from the get-go, her conscience might have convinced her that 72 bucks was a good deal, and paid it.
Even if it goes to court, and a hard fought case goes to RIAA, no sane judge is going to award a million bucks. I invite you to check out your own court system in your own home town. First time offenders convicted of petty theft generally pay restitution, a small fine, court costs, and community service. If there is no lawyer involved, total cost is maybe $1500 bucks. Paying a lawyer in my home town would add 500 bucks to the bill, your mileage may differ.
Personally, as I've said, Jammy probably is guilty of something. But, guilty or not, the penalty has to be something within the realms of reason.
HOWEVER!!! Illegal evidence has never been admissable in a criminal court, nor should it be encouraged in a civil court. RIAA has a lot to answer for, regarding their "investigative" techniques. MediaSentry, among other things, has been shot so full of holes, it resembles the Titanic. Forensic evidence is never properly obtained, documented, or presented. The courts don't even seem to understand what all this evidence is SUPPOSED to mean, let alone examine it to determine if it's legal, and technically correct.
Bottom line, RIAA are a bunch of parasites who manage to get by because they shout "THIEF" more loudly than their victims can.
Let's put RIAA out of everyone's misery, then we might all get together to come up with some sane laws. Note, I don't even say "fair laws". For the sake of this argument, I only require "sane".
"Windows is like the faint smell of piss in a subway: it's there, and there's nothing you can do about it." - Charlie Br
I've started to wonder what the real value of "Jamie's playlist" really is.
Maybe some interested investigative journalist can find out how much money a British newspaper typically pays for the right to add a CD with say twenty similar songs to each single copy of their newspaper. Distribution of about one million. That is one million real copies, not one million imaginary copies.
Now I would say that if some newspaper made such a CD without permission, then we could take the customary rate, maybe double it, and that would be a fitting punishment for making a million copies. Now adjust that for the best estimate of the number of copies that were actually made of "Jamie's playlist".