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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."
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.