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RIAA Insists On 3rd Trial In Thomas Case
NewYorkCountryLawyer writes "Not satisfied with the reduced $54,000 verdict which the Judge allowed it in Capitol Records v. Thomas-Rasset, representing approximately 6500 times the amount of their actual damages, the RIAA has decided to take its chances on a third trial, at which it could only win a verdict that is equal to, or less than, $54,000. Since a 3rd trial in and of itself makes no economic sense, and since the RIAA's lawyers inappropriately added 7 pages of legal argument to their 'notice', it can only be assumed that the reason they are opting for a 3rd trial is to hope that they can somehow bait the Judge into making an error that will help them on an appeal."
"The code of tribal wisdom says that when you discover you are riding a dead horse, the best strategy is to dismount.
In law firms, we often try other strategies with dead horses, including the following: buying a stronger whip; changing riders; saying things like 'this is the way we have always ridden this horse'; appointing a committee to study the horse; arranging to visit other firms to see how they ride dead horses; increasing the standards to ride dead horses; declaring that the horse is better, faster, and cheaper dead; and finally, harnessing several dead horses together for increased speed."
-- Judge Thomas Penfield Jackson, 16 February 1999, in the courtroom after lunch on the second day of testimony from Microsoft's Brad Chase.
After considering the Court’s Order, Plaintiffs regretfully must decline to accept the remittitur since the rationale underlying the remittitur is inconsistent with the Copyright Act and its legislative history, as well as established case law.
I am not a lawyer but how many times can you prolong at trial? I'm aware of the appeal process but is this even an appeal? It sounds more like they're saying "we refuse to accept the court's decision" which is not quite how I recall law in the United States to work.
Then their filing says this:
In light of the foregoing, Plaintiffs respectfully decline to accept the Court’s remittitur and shall work with Defendant’s counsel and the Court to set this matter for a new trial on the issue of damages.
Emphasis mine. So this isn't an appeal or a retrial but instead a new trial? How many times must Thomas-Rasset go to court for copyright violation on twenty four songs?!
Further more, if any lawyers are reading this, does this affect the precedence that this verdict would set? Will Capital v. Thomas be referenced with an asterisk indicating that the first eight trials found her on the hook for any amount between $24 and $2 million causing the judge to finally throw it out on the ninth "new trial"?
Whatever happened to due process and not being able to stand trial for the same crime twice? Is this new trial a civil suit where the first two trials were criminal suits?
I understand some issues are not clearly defined in law but this is turning into a circus.
My work here is dung.
The attorneys should be personally sanctioned for improperly representing their client and wasting valuable resources.
In addition to court-assigned fines, they should be referred to their bar association for further sanctions and possibly barred from that courthouse.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
As more content becomes electronically available, such as ebooks, movies, etc this nonsense will proliferate. Even now, as book publishers try to increase the cost of books from 9.99 to 14,99 and higher, or delay release of electronic versions hoping people will buy the hard-copy first and the ebook 6 months later, there are attacks forming on the publishers (read Amazon reviews for ebooks > $9.99 and see the 1 star reviews), and there will be attacks on the technology as piracy takes hold. Everybody is just greedy, the consumers want it for a low cost that never changes, the publishers, the lawyers, etc. I pity the independent singer songwriter or now author who is blamed as part of the economic ecosystem of this mess. They may have a stigma attached to them they cannot shake and cannot grow beyond.
no comment
...it can only be assumed that the reason they are opting for a 3rd trial is to hope that they can somehow bait the Judge into making an error that will help them on an appeal."
No, I think other assumptions could also be made. Such as, maybe they're just a bunch of vindictive pricks who have the money and just want to screw with someone they lost to (well, it wasn't a loss, but they surely see it that way). Why not piss away another pile of cash?
They're going for harassment and want to make an example of this person by tying up life, finances, and emotional health as long and deeply as possible. If they could get an execution somehow they would, but they'll settle for lawsuits for the rest of natural life to prevent things like, oh, personal property and/or basic health from taking hold ever again.
Rip 'is 'art 'apart!
STOP . AMERICA . NOW
So basically, they're going to court and simply repeating themselves?
They're starting to sound like a broken record now.
I'll get my coat
Always proofread carefully to see if you any words out.
Well, the RIAA are the ones insisting on a new trial, so I suspect the answer is until the RIAA gets the verdict they want .
The Saints submitted notice to appeal their Super Bowl win, on the grounds that the Colts unfairly bunched up at the line near the end of the first half, forcing a turnover on downs, and causing the Saints to settle for a field goal on a subsequent series. Sean Peyton, coach of the Saints explained that while they could only lose the game due to appeal, and could in no way increase their margin of victory, they hoped that by filing they may increase their chances of a higher pick in next year's draft. Drunken fans in the french quarter cheered the announcement, and said they "waited 43 years for this, why not wait a little longer".
no comment
But to say that $54,000 is approximately 6500x (ie $8.30) the actual damages is disingenuous at best.
So this is what, the third trial?
At this point, since my life would be financially over, I'd consider some other options. Options that, while not monetarily or legally beneficial, ones that would be immensely emotionally cathartic.
Out of modpoints but really liked a post? 1BDkF6TtmmeZ3yqXbz9yhdYVqRYnwFoXDj
Goliaths know that whoever has deeper pockets to pay legal expenses for a longer period of time, generally wins lawsuits. Frivolous lawsuits filed by large companies on individuals and small entities are more often than not seen as a war of attrition that they have no way of losing. As someone was once the victim of this, it makes me incredibly angry. I was frivolously sued by a large company. Even though I won the case (basically by showing up and showing the contract vis a vis their allegations), I had to spend a few thousand dollars defending myself (I'm lucky it wasn't tens or hundreds of thousands). They're trying to ruin this individual, and make an example out of him. It's one of the most evil aspects of corporations and is what's most wrong IMO about our legal system.
The Institute of Incomplete Research has determined that 9 of out 10
As far as I understand, the judge has found that as a matter of law they can not claim more than 54,000$. I would think that they could either accept this decision or appeal it as a matter of law. What good is the new trial going to do? Will they have to go through another full trial, only for the RIAA to dispute the jury instructions and demand another new trial? Surely that judge isn't the prime authority on the law and this must sooner or later reach the Supreme Court? Or did the RIAA pass up the possibility to appeal the 54,000$ decision? I somehow doubt that.
Live today, because you never know what tomorrow brings
Can I get this as a car analogy please?
English is not this
Wow, I wonder if everyone can "respectfully decline to accept" the court's agreed-upon settlement in a civil case. "No, we're going to keep coming back until Walmart pays me one trillion dollars to replace this faulty TV."
No kidding!!! What do you say at this point?
They're probably just trying to cause Jammie to incur as much legal fees, stress and inconvenience as possible.
I really hope the new judge comes down hard on them for subverting the legal system and just being jerks.
Does the idea of double jeopardy apply in civil law? If not, what prevents a plaintiff with very deep pockets from suing a defendant for something, losing, suing them again, losing, etc until the defendant's funds with which to defend themselves run out? Because this sounds like a pretty open-and-shut case of the RIAA doing exactly that, and the overall effect is that said defendant effectively loses even if they win.
I am officially gone from
Now I am not a lawyer either, so hopefully someone who is can respond with an educated opinion...
So how does being tried three times for the same offense not violate the intent of the Constitution? I know the Fifth Amendment primarily speaks to capitol offenses, but what about the Eighth Amendment?
Were the previous two trials mistrials or somehow screwed up? If I read the articles right, then the last trial had a verdict. Does this mean in civil cases I can sue until I get what I want?
"Be polite, be professional, but have a plan to kill everybody you meet." General James Mattis
In modern America people are run (through) by corporations? Yay, the future is now...
I just wonder sometimes, how long can someone look at sheer stupidity with straight face? RIAA has money, power, and wicked sense of self-righteousness, plus law-guaranteed right to do anything they want to humiliate and terrorize (and there's nothing more than that) people. Oh, and most "common people" still dream about their children becoming lawyers and getting a good warm place in DOJ after all. Just like in "Brazil" movie, where people peacefully continued their meals right after big explosion, like nothing ever happened. Well... sometimes I fear I've read too many dystopian novels, lost my mind and now live only in the realm my own surreal nightmares. Then I see news like this and calm myself with thought that my imagination is still incapable of constructing such absurd fantasies.
Absence of proof != proof of absence.
Oh, I prefer to respectfully decline to accept the court's final decision to put me in prison for 10 years. On basis that I don't like the decision and don't want to go to prison.
45 5F E1 04 22 CA 29 C4 93 3F 95 05 2B 79 2A B2
That horse is not dead. It's sleeping.
Wenn ist das Nunstueck git und Slotermeyer? Ja! Beiherhund das Oder die Flipperwaldt gersput.
Toyota, having achieved their goal of becoming the world's largest car company, appealed their win to the court of public opinion by recalling millions of vehicles. There was no hope of becoming larger than themselves, so the only downside was possibly becoming smaller. "We need this appeal to keep our name in the public spotlight," unexplained an anonymous spokesman.
Infuriate left and right
Most people don't have the money to send the lawyers back again and again...
== Jez ==
Do you miss Firefox? Try Pale Moon.
Well, IANAL, but they can't appeal--because they won the case.
Who checks to see if an artist is in the RIAA BEFORE they buy a song or CD? It is guilt by association, much like all bankers are "fat cats ripping us off", all singers and authors are just money grubbing self important prima donas because I read where they sue unemployed mothers living in Harlem with insecure wireless access points. See how that works?
no comment
That depends. $YourLegalTeam > $WalmartLegalTeam ?
Finally had enough. Come see us over at https://soylentnews.org/
Whatever happened to due process and not being able to stand trial for the same crime twice?
As this is the RIAA bringing the case, rather than The People (or whatever the US's equivalent of the UK's "Crown vs ..." is), surely it's a civil case and it can be brought as many times as a judge is willing to put up with it before throwing it out of court and telling them not to come back?
(ObDisclaimer: IANAL)
It's official. Most of you are morons.
Millions the first time, thousands the second time... let's extrapolate. Third time's a charm? ;)
...forget about what happened in McDonald's Restaurants vs. Morris & Steel? http://en.wikipedia.org/wiki/McDonald's_Restaurants_v_Morris_&_Steel I hope that the MAFIAA gets slapped down hard for these shenanigans eventually.
Whew, the system works.
MABASPLOOM!
It can be a stigma; my favorite artists are independent, but some may lump them in with others.
no comment
do you have to pay court fees if you get sued? and how about after time 2-3+ you just go to court on your own and say to the court this is the 3rd time and I can only be on by own and move to get case voided as you can pay to defend your self.
I've wondered about this myself and have asked a lawyer about it, my understanding is that (as stated on the Wiki page below) the Fifth Amendment only applies to criminal cases (not civil, hence allowing a civil case after criminal case, e.g. O.J. Simpson). Even in criminal cases, again my understanding is that the limitation only applies to a particular sovereign (?), i.e. you could be found not guilty of a crime in state court, but still stand trial for that in federal court. Further, re trying the same civil case over-and-over, my understanding is that anyone can sue anyone, but it does have to pass a few hurdles before actually getting tried (e.g. you probably have to get a lawyer to agree that the case has merit, then have to get a court to accept it along the same lines and agree to run the trial -- my guess is that at some point the court could refuse to accept it, perhaps even penalizing the petitioner with a monetary fine of some sort?).
The wiki page on double jeopardy.
There are many legal avenues that a well-paid legal team can travel down to simply outpace the individual in both resources and time.
I'm going to tell a quick story. When I was a minor (though admittedly close to 18), my parent and I filed a lawsuit against [z] for wrongful discipline. It wasn't really wrongful discipline, but that's the easiest way to put it: [x] had broken code/regulations dozens of times during the course of the incident after I had unknowingly done something wrong due to a "disability"; my lawyer discovered all of this, and we filed the lawsuit. During the first settlement meeting, they were in one room, we were in another, our lawyers/mediators were jumping all over and meeting privately at times. (Typical mediation.) They were extremely heavy-handed and wouldn't settle for more than a meager amount at first. Four hours into the meeting, the mediator and my lawyer came in the room and we began talking. I decided to play the best card I had after the mediator had informed me that they will be willing to spend however much money it takes, and go through trial for probably over a year, (that that is their main weapon against litigants that are common folk without much money.) I made it very clear to the mediator: "Listen, I'm going to be honest, I don't care about this settlement, it's not even a dent in my worth. I want them to learn their lesson, and I will not walk out of here without getting at least 20x what they are offering. When I turn 18, I am inheriting over two million dollars and will be more than happy to pay as many lawyers as it takes. [$x] is an insult to me and my family, and unless we see [$20x], we'll be looking very forward to trial and the ability to speak to the press about this whole ordeal."
Long story short, after 5 hours worth of arguing over the size of a three digit settlement, the mediator came back and informed us that over the course of five minutes, they accepted the five-digit number upon finding out about my inheritance and my eagerness to go to trial. For me, it wasn't a risky move: my lawyer already had the media lined up to speak to me and break the story, I really was inheriting a very large amount of money, and I was dying to go to trial (because of the severity of the "awe" factor in my favor). It's important to note, however, that if you have these three things against you, it becomes a much risker move to make. Though it's a risky move, its very effective, because as this article clearly shows, a large corporation/entity's main weapon is the fact that they can afford far more legal action than you can. Also please note that I was blessed to have had a great lawyer: my family and I were literally going days without eating in order to pay the mortgage and one or two bills a month (single parent), but my lawyer offered to take the case and allow me to pay him once I turned 18 or when we won. Because I was a minor, the settlement wasn't given to me until I was 18 anyway. I was very lucky to have such a large upper-hand against an entity that had an enormous advantage to begin with.
Moral of the story: as soon as they found out I was willing to dish out just as much (if not more) money than they were to fight, they backed down and realized even 20x the original settlement amount is worth ending the matter ASAP. Granted, this article is dealing with the RIAA and I have nowhere near the amount of available resources that they do. Because of that, they will continue fighting this battle just because they can and would like to deter file-sharers from doing this in the future. Legal fights are all about money: ever seen the lower-class people on Judge Judy fighting over $100? How long do those cases last? Think about it, it's all about money, and unfortunately when an entity as large as the RIAA sues an individual, it is a very uneven fight.
At this point, I think the legal system will fail us if it doesn’t ensure that the RIAA doesn’t either.
I’m thinking throw out their case, slap contempt of court fines on them and their lawyers for wasting the court’s time, and make them pay the defendants’ legal costs... all of them... including the legal fees incurred during the trials that the RIAA is supplanting with this one.
Alexander Peter Kristopeit bought his basement from his mommy for one dollar.
It is not that hard to check if music is from an RIAA company before you buy. Go to http://riaaradar.com./
Who checks to see if an artist is in the RIAA BEFORE they buy a song or CD?
Anybody who cares that much?
much like all bankers are "fat cats ripping us off", all singers and authors are just money grubbing self important prima donas because I read where they sue unemployed mothers living in Harlem with insecure wireless access points
Everyone knows who the bad guys are here. It’s not the artists. It’s the RIAA.
Alexander Peter Kristopeit bought his basement from his mommy for one dollar.
The constitution doesn't count in civil cases. It's not a crime, it's a civil dispute.
--- The above comments are the property of the RFLF (Real Fake Law Firm). We're really not lawyers and what we don't know, we just make up.
IAAL. It is really a part of the same trial-- the rules of remittitur say if you don't like how the judge reduced your award, you can try the issue of damages again. Basically means if you think the judge wrongly reduced the jury verdict, you can and should have the jury try again, so we know, on appeal, what a second jury verdict was (a perspective on the reasonableness of how much the judge chopped off the first verdict). If I were an appellate court judge I think I'd want to see that.
Those are my principles, and if you don't like them... well, I have others.
A double-entendre involving the '$' sign. Nicely done!
So, what has been stopping the US of A adopting a loser-pays -all legal system?
Bear in mind that they're up against Kiwi Camara, hotshot pro-bona wunderkind, whose primary interest (at this point in his career) is in making a name for himself by tilting at windmills. You want proof? His other client is Psystar. Neither side (and I mean the RIAA vs Camara, not Thomas-Rasset, who is irrelevant at this point) has anything to lose and potentially something to gain by keeping this going indefinitely.
If you were blocking sigs, you wouldn't have to read this.
a) It's not a criminal trial but a civil matter. In that case, these cases can keep being tried until all parties run out of money or interest in the case. Even if one party is out of money, the other party can keep it going until THEY run out of money. There is only one decision that can stop re-trials and that brings us to b.
b) The judges have so far ruled that the cases be dismissed WITHOUT PREJUDICE. That means, as long as the courts keep ruling this, the cases can be brought on again. This is off course profitable for the judge as they keep having jobs paid for by taxpayers. This is also good for the wealthier parties as they can just keep going until the other side runs out of money which brings us to c
c) The judges have not ruled against the cases to be unconstitutional. Judges are really afraid of ruling on constitutional matters it seems as their interpretation will be used as a precedent for all sorts of cases in the future in those courts and lower courts. The only court that can actually rule something to be definitively constitutional is the Supreme Court but since they are so 'overworked' to bring cases to that level is expensive and is usually reserved for more important cases like those that involve the first amendment etc.
Custom electronics and digital signage for your business: www.evcircuits.com
The Constitution most certainly counts in civil cases. The Fifth Amendment doesn't -- it only addresses abuses in criminal cases. (Remember, most of the Bill of Rights were instituted to protect against over-reach by a central government, not protect against fellow citizens.) There are common-law protections against repeated trials in civil court, with penalties that can attach in cases of abuse.
The judge offered the option of a new trial to the plaintiffs when he set aside the jury's verdict. There may be a 7th amendment issue involved.
It makes it very easy for deep-pocketed individuals to file borderline-frivolous lawsuits, since if they lose, paying for the defendant’s legal costs is no problem, and if they win, their legal representation was free.
It makes it very risky for someone with little money to go up against a large corporation, because they’re going to spend hundreds of thousands of dollars defending themself, and on the outside chance that you get a terrible judge who gives the case to the large corporation, you’re stuck with the bill.
In other words, it does very little to prevent large corporations from bringing frivolous lawsuits against individuals, and it will prevent a lot of individuals from bringing lawsuits against large corporations whose lawsuits actually had merit but weren’t sure wins.
Alexander Peter Kristopeit bought his basement from his mommy for one dollar.
Since a 3rd trial in and of itself makes no economic sense, and since the RIAA's lawyers inappropriately added 7 pages of legal argument to their 'notice', it can only be assumed that the reason they are opting for a 3rd trial is to hope that they can somehow bait the Judge into making an error that will help them on an appeal.
Isn't another possible reason; to use the legal process as punishment? There are cases between established enterprises and upstart competitors where the presumed motive of the enterprise was to bleed the competitor through legal entanglement, even though they have little chance of winning. Admittedly in this case the RIAA presumably does not hope to forestall some future loss of revenue, but couldn't they just be plain old vindictive?
As the old saying goes: Never ascribe to strategy what can be explained by simple malice. (OK, that's a new spin on an old classic, but still)
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surely if they refuse to accept the verdict, the Judge should dismiss their case with prejudice and award costs to the defence... things are getting silly now
Donald 'Duck' Dunn: We had a band powerful enough to turn goat piss into gasoline.
Mules, long noted for stubbornness, would seem to have nothing on either the music labels or Jammie Thomas-Rasset. Both sides have dug in deep and are prepared, almost unbelievably, to have a third trial on the question of whether Thomas-Rasset was a dirty P2P pirate... and of what she should pay if she was.
At the second trial, in 2009, Thomas-Rasset was again found liable, but the jury this time fined her $1.92 million. Last week, federal judge Michael Davis decided that this was "monstrous" in its disproportionality and slashed the damages to $54,000. The recording industry could either accept his decision or request a third trial.
The RIAA then sent a letter to Thomas-Rasset's lawyers with an alternate offer. Thomas-Rasset could settle for only $25,000 ("We are willing to negotiate a payment schedule for this sum," said a copy of the letter seen by Ars), and she wouldn't even need to pay the labels--all cash could go to a charity benefiting musicians. The entire settlement would be conditioned on the judge vacating his recent remittitur order.
"We do not believe embarking on a third trial is in anyone's interest," said the letter. "Continuing to use scarce judicial resources as well as spend our respective clients' time and money strikes as unwise and pointless."
It does not strike Thomas-Rasset that way. While the RIAA asked for an answer by Friday, January 29, Thomas-Rasset's lawyers have already responded: no deal.
I checked in with Kiwi Camara, one of Thomas-Rasset's lawyers. who confirmed that the settlement was ruled out. He added that Thomas-Rasset would likewise rule out any settlement asking her to pay damages, and that the Camara & Sibley law firm was ready to represent her pro bono once more.
It's hard to see how this will play out, but a few things are clear: Judge Davis, despite strong criticism of the damage award, had no kind words for Thomas-Rasset. He noted that "ThomasRasset's refusal to accept responsibility for her actions and her decision to concoct a new theory of the infringement casting possible blame on her children and exboyfriend for her actions demonstrate a refusal to accept responsibility and raise the need for strong deterrence." The judge even concluded that she "lied on the witness stand by denying responsibility for her infringing acts and, instead, blamed others, including her children, for her actions."
Given the facts in the case, which after two trials don't appear to be in dispute, it's hard to see how Thomas-Rasset hopes to prevail without paying a dime, but that appears to be the plan.
If she had been willing to pay something, she would have done so long ago, when the RIAA offered her a settlement of a few thousand dollars. Instead, Thomas-Rasset has spent years of her life working with two law firms on two federal trials, and she's willing to risk a third.
The stubbornness isn't just on one side of the aisle, however. The RIAA is completely unwilling to abide Judge Davis' ruling that the jury's damage award was excessive. Accepting the ruling would set an unacceptable precedent for judges to alter jury awards in copyright cases at their whim. It's not the amount, but the principle--something shown by the fact that the trade group is willing to drop roughly a bazillion dollars more on the Denver law firm that has been prosecuting the case in order to do it all again. In addition, conversations with industry lawyers and executives over the years have also revealed a strong sense that Thomas-Rasset needs to take responsibility and pay something; there's a very real sense that, apart from issue of statutory damage law, Thomas-Rasset is thumbing her nose at the industry and hoping to get away with no penalty.
Thus--a third trial.
Thomas-Rasset vows to pay nothing, so third trial inevitable [Jan 28]
Sleeping... upside down. And inside out.
They won their case. Appealing it is not only churlish, it could wind up seriously biting them in the ass.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
b) The judges have so far ruled that the cases be dismissed WITHOUT PREJUDICE.
Not true. The RIAA won the first trial, and were awarded $222k in damages. The judge dismissed that one due to an error in the jury instructions. The RIAA won the second trial and were awarded $1.92 million in damages. The judge reduced the award to $54k, and the RIAA has opted for a new trial on damages rather than accept that. The previous trial is not dismissed without prejudice - rather, the jury findings that Thomas was liable for 24 counts of willful infringement of the right to copy and 24 counts of willful infringement of the right to distribute aren't touched. This trial will only be on what level of damages are awarded.
And, it makes sense for the RIAA... The judge reduced the damages from $1.92 million to $54k in a post-trial opinion. The RIAA didn't get to argue that that was improper, so they'd have nothing to appeal. This new trial gives them a chance to argue that decision.
And don't weep for Thomas-Rasset. Her lawyers are working pro bono.
c) The judges have not ruled against the cases to be unconstitutional.
Yeah, and NYCL's wishes aside, they're really unlikely to do so. Article I, section 8, clause 8 expressly gives Congress the power to create copyright law. That's clearly constitutional - the only issue for unconstitutionality is statutory damages, but that's a tough road to hoe. First, because Congress has the power to create copyright law, then the courts have to defer to how they create the law, provided they're within the bounds of the 5th amendment. Second, if you want a original-intent argument, copyright law has included statutory damages since the original 1790 Act, only three years after the Constitution. Third, the arguments that statutory damages are out of proportion with actual damages ignore most of the damages, specifically the infringement of the right to distribute. It's like saying that sending someone to jail for 5 years for speeding is grossly excessive, and neglect to mention their DUI and hit and run.
Wrong. It does and it doesn't. There's some aspects of the Constitution which apply in full force (with changes in procedure that alter the nature of the BoR's impact on things...) and some things that don't.
For example:
A civil asset seizure, if not properly done under a valid Warrant is a violation of the Fourth Amendment- just as if it were a criminal one. If the assets so seized are not immediately remanded, it's a Fifth Amendment violation (Unlawful Takings...). Any Civil discovery or Criminal evidence obtained from such a seizure is no longer admissible in court and is typically ordered to be destroyed at the moment of the discovery that the Fourth has been violated.
Testimony not able to be cross-examined prior to a trial or during is generally held to be inadmissible as hearsay per the confrontation clause of the Sixth Amendment. Bank statements are excluded from this holding- but most everything else isn't going to fly.
In a courtroom, you may plead the Fifth in a Civil case, but you have to explicitly take it each and every time you are asked a question- and you can have negative inferences (i.e. it can be at least partly held against you in a decision...) from the Judge or Jury if you DO choose to take that route. And you can't let up once you start, you have to take it from that moment on.
You can't be tried under the Civil code by the the State or Federal government for something and then have it followed up by a Criminal code suit for the same specific violation (double-jeopardy). Though you can have a trial under the Criminal code and then be sued by the family of the deceased/injured in the context of a murder/manslaughter/etc. case as we've seen with the OJ Simpson story. That's allowed because it wasn't specifically the same cause (The state tried for murder, the family sued for damages, etc.).
The First Amendment is typically deemed to trump most every Civil and Criminal statute when applied in the manner it's usually done.
Most of these things apply to State level courts through the Fourteenth Amendment.
In truth, the Civil code's authority stems from the rules set forth in the Constitution and the Bill of Rights affects it as much as the varying Penal codes.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
How many times must Thomas-Rasset go to court for copyright violation on twenty four songs?!
Well, the RIAA are the ones insisting on a new trial, so I suspect the answer is until the RIAA gets the verdict they want .
:)
I know it seems that way, but not really.
The first trial's verdict was set aside because the Judge recognized that his acceptance of the RIAA's incorrect jury instruction on "making available".
The ruling setting aside the second trial's verdict was a partial victory for Ms. Thomas-Rasset, reducing a $1,920,000 verdict to $54,000.
In view of the Judge's ruling on the second verdict, the RIAA will never 'get the verdict they want'; the most they can possibly get is $54,000.
It is common, in granting "remittitur" due to an obviously out of control jury, to lower the verdict, but offer the plaintiff a chance to reject the lower verdict and get a do-over. Nothing at all unusual about it.
The RIAA will never get more than $54,000, and may well get less the second time around. And if the Judge finally does tackle the constitutional issue, I predict the third verdict will be a WHOLE LOT less.
Ray Beckerman +5 Insightful
If the damages are lowered then they still get a PR victory, but also make the industry look less like monsters.
I suspect this is a somewhat silly question, but ...
Will the extra costs incurred to Thomas after the 54k verdict be plaintiff? I.e. if the RIAA's tactic here incurs an extra 5,000 dollar in legal fees, will she be allowed to deduct that from the next verdict?
Or can this be seen as a tactic to put more strain on her financial situation? I.e. they know they can't get more than 54,000 dollars, but if they can force her into bankruptcy by not only holding that 54,000 dollar verdict over her head but also constantly increasing legal fees, they can force her into an out of court settlement that may be cheaper for her (legal fees only), but kept under wraps so as not to set precedent.
Never say die! Never quit while you're ahead!
I never would have guessed the ultimate demise of the RIAA would be themselves.
"Most people, I think, don't even know what a rootkit is, so why should they care about it?"
All bankers *are* fat cats ripping us off, just like *all* RIAA execs are fat cats ripping us off. RIAA is to artists as bankers are to people miss-sold mortgages.
Actually, the way it works is very very similar in both cases. You loan somebody more money than they are likely to be able to pay back, either to make records or to buy a house, and then when they fail to pay it back, you own their record/house, plus any money they already paid back, plus interest/fees. The only point where this business plan stops turning a profit is when people stop buying the houses and records.
I understand some issues are not clearly defined in law but this is turning into a circus.
IANAL but I'm thinking about law school and life as a corporate counsel.
I have to wonder how many of these RIAA shysters, one day, relaxed with a cup of tea during their undergrad and thought it would make for a satisfying career to serve an organization that enjoys pounding its fists against the judicial system until she goes blind *again*.
Don't get me wrong, I can do my job without feeling personally responsible for the outcomes. But I just might have to remove all the mirrors from my penthouse apartment.
> it can only be assumed that the reason they are opting for a 3rd trial is to hope that they can somehow BRIBE the Judge into making an error that will help them on an appeal
FTFY
It's starting to seem like it. At some point, a judge is going to have to teach these buttheads a lesson by dismissing the damned case with prejudice. Or override any jury's damage amount and give them something like $100 dollars with the admonishment "Take or leave it but never file another suit over Thomas's copyright violations ever again.".
CUR ALLOC 20195.....5804M
I suspect this is a somewhat silly question, but ...
Will the extra costs incurred to Thomas after the 54k verdict be plaintiff? I.e. if the RIAA's tactic here incurs an extra 5,000 dollar in legal fees, will she be allowed to deduct that from the next verdict?
Or can this be seen as a tactic to put more strain on her financial situation? I.e. they know they can't get more than 54,000 dollars, but if they can force her into bankruptcy by not only holding that 54,000 dollar verdict over her head but also constantly increasing legal fees, they can force her into an out of court settlement that may be cheaper for her (legal fees only), but kept under wraps so as not to set precedent.
1. In the present posture, she can't win, absent an appeal. The second trial is just about the amount of damages.
In actuality the RIAA will incur at least a hundred thousand dollars for another trial, probably more. And that's not counting the other expenses, such as employee time, etc.
I think, but am not sure, that there was a special agreement in this case precluding attorneys fees.
Sometimes settlements are entered into the public record, sometimes not. Either way, they are not judicial precedents.
Ray Beckerman +5 Insightful
For anyone interested in the constitutionality of the RIAA's statutory damages theory I suggest reading our revised amicus curiae brief filed in SONY v. Tenenbaum, and -- if you wish to go further -- reading the 3 law review articles cited in the brief.
Ray Beckerman +5 Insightful
At the very least it'll bring down frivolous lawsuits from individuals against individuals and the number of these lawsuits will drop.
Lawyers will also be a lot more likely to defend individuals against corporations in a frivolous lawsuits if the loser pays, because they can use judgement to see how likely the case can be won.
Without a loser-pays system, it's a matter of when, not if, that the individual defendants will run out of resources. With a loser-pays system, sure, there's a risk, but even being a risk is a lot less probable than surely running out of resources.
This is especially true in a case like this one, where the chances of the corporation winning is exactly nil - the purpose of this third trial is nothing but to squeeze the defendant dry - RIAA doesn't care even if it loses.
In other words, a loser-pays system will take away much of the incentive that makes corporations think they can screw someone over by dragging on a suit they know they cannot win.
In other words, a loser-pays system will take away much of the incentive that makes corporations think they can screw someone over by dragging on a suit they know they cannot win.
That incentive is supposed to be taken away by the fact that they can get slapped with fines for continuing to bring frivolous, harassing litigation to court. Unfortunately, this isn’t enforced well enough to be a deterrence.
Alexander Peter Kristopeit bought his basement from his mommy for one dollar.
Actually the answer is until the RIAA's legal costs cannot result in an effective deterrent to others.
The curious part of the RIAA-slamming campaign is that it actually promotes malicious litigation by the RIAA. If nobody were aware of their legal misdeeds, they wouldn't bother to do them. But since they're well publicized, they're encouraged to be as atrocious as possible to send their "we're going to get you" message to as wide an audience as possible.
The fact is, like it or not, they are incurring annual losses in the 10's of millions, and their campaign of legal harassment is working, thanks largely to blog threads like this. Sometimes injustice is best left unnoticed.
War as we knew it was obsolete
Nothing could beat complete denial
- Emily Haines
Hating the players *and* the game seems perfectly reasonable to me.
For anyone interested in the constitutionality of the RIAA's statutory damages theory I suggest reading our revised amicus curiae brief filed in SONY v. Tenenbaum, and -- if you wish to go further -- reading the 3 law review articles cited in the brief.
Thanks for that link. If I may address a few points...
1) My previous post notes that "the arguments that statutory damages are out of proportion with actual damages ignore most of the damages, specifically the infringement of the right to distribute. It's like saying that sending someone to jail for 5 years for speeding is grossly excessive, and neglect to mention their DUI and hit and run."
You mention this in your brief on page 6:
They seek statutory damages of from $750 to $150,000 as to each MP3 file, without regard to whether what they have proved, as to that file, is mere “downloading” -- i.e. violation of the reproduction right -- or “distribution”, i.e. violation of the distribution right.
...In the case of a “distribution” -- i.e. defendant's having acted as a “distributor” and having actually disseminated actual copies to the public, by a sale or other transfer of ownership, or by a license, lease, or lending -- the actual damages would no doubt be greater than 35 cents, and the subject of further proof.
You explicitly note that actual damages would be higher, but suggest that they be the subject of further proof. Statutory damages under 17 USC 504 do not require proof of actual damages. Rather, the plaintiff merely has to show infringement and opt for statutory damages, and the defendant may show proof of actual damages to mitigate the statutory damages. Neither Tenenbaum nor Thomas ever showed proof of actual damages.
2) Continuing in the same paragraph:
Suffice it to say, however, that in 40,000 cases and counting, these plaintiffs have never been able to find or prove any such “distribution”.2
So while there exists a purely theoretical possibility that plaintiffs will be able to prove that Joel Tenenbaum was some sort of “distributor” of MP3 files, if all they ever prove is downloading, then they are seeking multiples of more than 2,100 to 425,000, which would clearly be unconstitutional under any standard.
This is not true. In the Thomas-Rasset case, the MediaSentry evidence showed distribution, and was not excluded (whether it should have been is a different question). In the Tenenbaum case, he admitted distribution under oath. Thus, in both cases, plaintiffs explicitly proved distribution:
"Mr. Tenenbaum, on the stand now, are you now admitting liability for downloading and distributing all 30 sound recordings that are at issue and listed on Exhibits 55 and 56 of the exhibits?" Answer: "Yes."
So, returning to your earlier point, the actual damages for infringement of the distribution right are "no doubt" greater than 35 cents.
Your remaining arguments address the disparity between the 35 cents damages and the $750-$150k per work statutory damages. However, as shown above, you admit that actual damages for infringement of distribution rights are greater. How much greater? Michael Jackson purchased the distribution rights to 200 Beatles songs for $47 million. $235,000 per work is significantly higher than the statute allows, but let's consider that an upper limit for a fair market value. Statutory damages in the range of half actual damages certainly don't seem out of line under Gore or State Farm.
All the trials have been civil suits. There has not been any criminal suit in this case... if there were, the plaintiff would be the state, not the RIAA member companies.
"Trolls they were, but filled with the evil will of their master: a fell race..." -- J.R.R. Tolkien on Olog-hai
Thought experiment.
Let's say I rob a store. I steal 100 copies of the White Album. I also steal 100 car radios.
If I give away those car radios, I am distributing them. I am generally liable for the cost of the radios plus reasonable damages based on a small multiplier of their value.
If I give away those CDs, by your argument I have committed damage to the copyright holder equivalent to the value of the distribution rights of those songs.
Explain to me how uploading a song is a worse crime than selling those stolen goods, how it violates the right to distribute in a worse way. And if you succeed at that, explain how it is in any way reasonable for selling stolen $20 CD's to be a crime 100x worse than selling stolen $100 car radios.
I can't believe you've tricked the moderators into moderating your bogus comments as "+3, informative" when it is clear you are a shill or a troll. If you want to continue your charade, please tell us SPECIFICALLY:
1. what the elements of "distribution" are under 17 USC 106(3) and
2. what evidence was submitted to prove them.
Interesting that neither the RIAA nor the Department of Justice could do that, but you can.
Ray Beckerman +5 Insightful
By the way, a distribution requires
1.dissemination of copies to the public
2. by sale or other transfer of ownership, or a rental, lease or lending.
17 USC 106(3). The RIAA has never proved, and probably could never prove, a distribution in any of these end user cases.
Ray Beckerman +5 Insightful
I always check first, via riaaradar.com. If the artist is represented by the RIAA, then I don't buy the CD, I don't buy the song on iTunes, nor do I pirate it, either. There are plenty of non-RIAA artists to lavish my limited funds on.
Towards the Singularity.
You say: You explicitly note that actual damages would be higher, but suggest that they be the subject of further proof. Statutory damages under 17 USC 504 do not require proof of actual damages. Rather, the plaintiff merely has to show infringement and opt for statutory damages, and the defendant may show proof of actual damages to mitigate the statutory damages. Neither Tenenbaum nor Thomas ever showed proof of actual damages.
17 USC 504 says an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.
$30000 * 24 = $720,000 is the maximum punishment. And that would be 'just' if the infringer willfully and profitably distributed those works. And it's not like she distributed the master or gold records, only a derived, low-quality version of the songs without covers etc. It's not like the songs have a large retail value either. Paintings, books, photos and other works have much higher values, are much more unique and are also protected under copyright law (which is where such high damages would be more 'just').
But lawyering aside, this case has the same merits as losing a CD you just bought on the street. Somebody else picks it up so you are now liable for 'distributing' a copyrighted work.
I thought MediaSentry evidence had become inadmissible but that's a job for those lawyers and a well-educated judge to see that a screenshot of a random IP address list is not really considered evidence.
Michael Jackson purchased the distribution rights. He did not buy 200 Beatles songs for $47 million. Thomas did not attempt to sell or distribute distribution rights. The media itself is not viable for mass-distribution with the eye on profitability in any sense of the word.
Custom electronics and digital signage for your business: www.evcircuits.com
Legal fights are all about money: ever seen the lower-class people on Judge Judy fighting over $100? How long do those cases last
They actually get paid to be there for the days of filming, something around $75 a day for a 3-day stretch. Both parties make out like bandits in a case like that.
Thanks for the explanation of why another trial is possible when the judge sets aside a civil jury's damage award.
But, what's the point if it can only serve to uphold or reduce the current award?
The only thing I can see is to hope that it will force the defendant to spend more on a defense, possibly a lot more than any reduction in award, as some perverse sense of "punishment". IOW, it isn't about the RIAA collecting "just" damages, but rather the defendant being made to pay as much as possible, to anyone, for their copyright violation. That soooooooo "smells" of barratry.
In Liberty, Rene
Michael Jackson purchased the distribution rights to 200 Beatles songs for $47 million. $235,000 per work is significantly higher than the statute allows, but let's consider that an upper limit for a fair market value. Statutory damages in the range of half actual damages certainly don't seem out of line under Gore or State Farm.
One thing to consider is that by selling pirated copies of songs, you're not actually depriving someone of ownership of the copyright. This isn't a case of "You took a Beatles song worth $235k away from MJ, and MJ no longer has the Beatles song." It's a case of "You distributed X copies of a song that you had no right to distribute." In reality, the damages should be (# of copies given out [directly and indirectly]) times (highest price the song sells for) times (decent penalty multiplier, maybe 3-6 times).
But I just might have to remove all the mirrors from my penthouse apartment.
Something tells me ... that mirrors aren't a problem for the RIAA lawyers. They probably don't have reflections anyway.
I can't believe you've tricked the moderators into moderating your bogus comments as "+3, informative" when it is clear you are a shill or a troll.
Ray, we've communicated via email separate from Slashdot. You know that I'm a law student, and neither a shill nor a troll. Calling me names doesn't dismiss my points.
My points, I'll notice, which you haven't responded to, but have instead shifted the issue to saying "the RIAA never proved distribution."
Nonetheless, as was explicitly noted in the Tenenbaum trial, Tenenbaum admitted liability for distribution. That is prima facie evidence of Tenenbaum's liability and admissible under FRE 801(d)(2)(A). Even if that was the sole bit of evidence offered to prove distribution by Tenenbaum, nothing more is needed to show his liability - essentially, he confessed, and it wasn't even an issue for the jury. All of his defenses were affirmative defenses.
If you want to continue your charade, please tell us SPECIFICALLY: 1. what the elements of "distribution" are under 17 USC 106(3) and 2. what evidence was submitted to prove them. Interesting that neither the RIAA nor the Department of Justice could do that, but you can.
Well, the DoJ didn't do that because they didn't try. The DoJ has only been involved in this case on the constitutionality of statutory damages and have explicitly stated at every turn that they take no position on actual liability for infringement by either Thomas or Tenenbaum, so that's a bit of a red herring.
As for the RIAA, 106(3) is the right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." Of course you know that, so my guess is by stressing "distribution" in your question, you're asking for a definition of that specific word - if not, let me know.
For the definition of distribution, personally, I'd turn to Nimmer on Copyright, which states at section 8.11, "The copyright owner thus has the exclusive right publicly to sell, give away, rent or lend any material embodiment of his work." If you disagree with that definition, please let me know.
As for the evidence, as noted above, in the Tenenbaum case he admitted liability for distribution under oath. That's fine evidence. There was also the MediaSentry evidence, who downloaded a song from him, thus showing that he distributed it. Similarly, in the Thomas case, there was the MediaSentry evidence that was not excluded - whether it should have been is a different question. These show that Thomas and Tennenbaum both "gave away" a "material embodiment" of the work. Neither Thomas nor Tenenbaum presented any evidence that their actions did not constitute infringement under the First Sale doctrine.
These should answer your questions 1 and 2 above. Now, would you kindly address my points in the prior post, preferably without further calling me names?
24.
$30000 * 24 = $720,000 is the maximum punishment. And that would be 'just' if the infringer willfully and profitably distributed those works.
No, "willful" infringement is up to $150,000 per work. BUT, I believe you are correct - the behavior in these trials did not meet the standard for willfulness, and the jury instruction on willfulness was incorrect. Damages should have been calculated in the $750-$30k range, and would most certainly have been significantly lower. I believe this is reversible error, too.
And it's not like she distributed the master or gold records, only a derived, low-quality version of the songs without covers etc.
But that's what people can buy currently, so that argument is a bit moot.
It's not like the songs have a large retail value either. Paintings, books, photos and other works have much higher values, are much more unique and are also protected under copyright law (which is where such high damages would be more 'just').
Congress isn't in the business of deciding artistic merit of different works, and frankly, I wouldn't want them to be. I like Lady Gaga.
But lawyering aside, this case has the same merits as losing a CD you just bought on the street. Somebody else picks it up so you are now liable for 'distributing' a copyrighted work.
No, you aren't. You're protected under the First Sale doctrine (even though there hasn't been a sale), because the original tangible embodiment is no longer in your possession.
I thought MediaSentry evidence had become inadmissible but that's a job for those lawyers and a well-educated judge to see that a screenshot of a random IP address list is not really considered evidence.
Nope. There were arguments, including some good ones, but in both cases, it was allowed.
Michael Jackson purchased the distribution rights. He did not buy 200 Beatles songs for $47 million. Thomas did not attempt to sell or distribute distribution rights.
You don't distribute distribution rights - you distribute the work. Which Thomas and Tenenbaum both did do.
The proof of my theory is here:
1) riaa browses the p2p networks and finds some data
2) riaa asks for settlements
3) riaa never admits they're wrong
4) riaa increases their claims and damages until they get a legal paper that the person did something wrong
5) riaa does not care who is their target -- anyone is good enough from p2p users -- as long as they admit doing something wrong.
6) riaa uses legal system to get the admissions, by stonewalling everyone who opposes it
the theory is that they don't care about the feeble money they receive from these lawsuits. Instead what they want is admissions that persons in this group did something wrong and that people belonging this group are _all_ criminals. They will no doubt collect statistics of how many people took the settlements and admit what riaa claims. And then this statistics will be used to pass some very dragonian laws or measures for isp's to prevent "unauthorised" downloads. So it's not about their copyrights at all, but a way to build statistics that favor them. They couldn't care less if some one person violates their copyrights. All they care is finding a way to destroy the whole group of people.
The real problem is that their product is not up-to-date. Their competitors found a way to build new technologies that got accepted by the public. ISP's are becoming real players in the market, making the environment difficult for people who create songs and distribute them to the public using old channels. Putting end to this practise is only possible if they have statistics that favors them. Statistics that say ISP's customers are all criminals. So they decided to create such statistics. Using real people. By destroying lives. They think that because they pressed some button to record some naturally occurring sounds and did that few hundred times, that they can destroy people's lives to create some statistics. Statistics that is needed to compete against other players in the market.
It's just a theory.
One thing to consider is that by selling pirated copies of songs, you're not actually depriving someone of ownership of the copyright. This isn't a case of "You took a Beatles song worth $235k away from MJ, and MJ no longer has the Beatles song."
MJ didn't buy specific copies of Beatles songs - he bought the exclusive right to distribute. He'd be pretty silly to pay $235k for an album you can get at H&M for $20. If you start distributing, you're infringing his exclusive right.
Think of it this way - exclusionary rights are property rights, like trespass. If I drive my car across your lawn, you still have your lawn. Nothing has been "stolen" from you. But I have infringed your right, as owner of that land, to exclude others from use.
It's a case of "You distributed X copies of a song that you had no right to distribute." In reality, the damages should be (# of copies given out [directly and indirectly]) times (highest price the song sells for) times (decent penalty multiplier, maybe 3-6 times).
You include "highest price the song sells for", but there's no reason for that... MJ paid $235k for the right to distribute a song. If you illegally distribute that song just once, by your formula, you owe him $1*$1*[penalty multiplier]. So the right he paid $235k for is worth only that. And similarly, the property is now almost valueless. Why would anyone ever pay for a license of something if they could freely take it and be liable only for a couple bucks... and in reality, liable for nothing, because who is going to file a $10 thousand dollar lawsuit over a couple bucks? In what way is this supported by statute or case law?
In the new trial they can only win at most the verdict of THIS trial. They can also lose or get awarded LESS money.
In the summary it was suggested that they might be hoping for an error during the new trial that would help during the appeal process.
I think another possible reason is to increase the cost of the case until the defendant agrees to a settlement. A sort of moving-the-goal-post-and-declare-victory move. I doubt they will settle. The longer this goes on the better for anti-RIAA proponents.
Thought experiment.
Let's say I rob a store. I steal 100 copies of the White Album. I also steal 100 car radios.
Sure, but bear in mind that your thought experiment has no relationship to these trials. In your thought experiment, you have physical copies and when you give them away, you're giving away your copy. After you give away all 100, you have no more radios or CDs. No new copies are created at any point. Thus, there has been no infringement of copyright.
Explain to me how uploading a song is a worse crime than selling those stolen goods, how it violates the right to distribute in a worse way
Apples to oranges. As noted above, selling stolen goods is not copyright infringement. It's selling stolen goods, and does not violate the distribution right.
Distributing copies of a work on a network creates new copies and violates the distribution right.
Consider an artist who creates a new work and then wants to sell copies of it. He's the only person who can make and sell copies, so he has a natural monopoly. He can set his price to whatever he thinks the market will bear.
Now, a copyright infringer comes along and makes a bunch of copies and distributes them. They have engaged in unfair competition, illegally taking the hard work of the artist without paying for it, and selling copies. Not only does the artist have to reduce his price due to the competition, he can't compete against the infringer because he has his original costs to make up, while the infringer has no original costs.
And if you succeed at that, explain how it is in any way reasonable for selling stolen $20 CD's to be a crime 100x worse than selling stolen $100 car radios.
See above. You're not just taking car radios, you're destroying the value of the natural monopoly created by the artist's work.
Ray's point was that you are using YOUR definition of the word distribution. THE WORD IS NOT DEFINED. I have been trying to find a concrete legal definition for the word for ten years. (I write software for a living and have an intrinsic interest in what defines "distribution" of my copyrighted software.)
In the US there is no single definition. It is VAUGE to say the least and varies greatly on jurisdiction. Some places require a physical copy to be transferred (bits on a hard drive may or may not count) AND its use. Other jurisdictions require that the recipient be aware of the transfer, others do not. Some jurisdictions require that parties understand that the transfer is taking place (think being handed a mix tape but you don't know about the 5th track). Currently in at least one jurisdiction distribution includes a computer transferring a programs executable data into ram. There is no single definition of distribution. Without that, how can you say that the defendant did or did not do something. It is undefined!
Just read the commentary on the GPLv2 and GPLv3. They changed the wording to avoid using the word distribution because it was undefined.
Mainly the ease with which an unscrupulous individual can "PROVE" they don't have a dollar to their name...
So, the out and out criminals continue to file frivolous lawsuits... If they lose, they have no provable income to pay the winner's legal fees. If they happen to win, then not only do you have to pay the adjudicated amount, you also get stuck paying their legal bill, however over-inflated it happens to be...
Slashdot gets worse every day... Pipedot: News for nerds, without the corporate slant
Ray's point was that you are using YOUR definition of the word distribution. THE WORD IS NOT DEFINED. I have been trying to find a concrete legal definition for the word for ten years. (I write software for a living and have an intrinsic interest in what defines "distribution" of my copyrighted software.)
Agreed, it's not defined in the statute. However, federal case law has established a definition for distribution - the one I quoted above from Nimmer.
Nonetheless, yes, I agree - there are certainly arguments in that area, and "distribution" should be explicitly defined in the statute. However, the fact that it isn't doesn't suddenly make infringement impossible - instead, judges must apply precedent as well as secondary sources to determine a definition. I will point out that neither Tenenbaum nor Thomas argued the definition of "distribution".
Currently in at least one jurisdiction distribution includes a computer transferring a programs executable data into ram.
Fortunately, on this one at least, Congress has stepped in and expressly stated that that is not copyright infringement (after MAI Systems Corp., Congress amended 17 USC 117).
I suspect he's basing that on the Court's incorrect conclusions. A lot of people see a MediaSentry log claiming to have detected the songs being shared and conclude that that equals distribution, without any questions about MediaSentry's questionable operating practices (which I don't think got presented at trial, because they managed to evade discovery).
Sorry to break the news to you but no relevant change has happened. I would refer you to MDY Industries LLC v. Blizzard Entertainment, Inc:
http://en.wikipedia.org/wiki/MDY_Indus._LLC_v._Blizzard_Entm't,_Inc.
For at least the District of Arizona the natural physical action of running a program is distribution under copyright law. If you would like to find any reasonable or unreasonable situation I am sure we can find two opposing rulings in Federal law, both having equal weight.
The situation is on the whole, absurd.
Sorry to break the news to you but no relevant change has happened. I would refer you to MDY Industries LLC v. Blizzard Entertainment, Inc: http://en.wikipedia.org/wiki/MDY_Indus._LLC_v._Blizzard_Entm't,_Inc. For at least the District of Arizona the natural physical action of running a program is distribution under copyright law. If you would like to find any reasonable or unreasonable situation I am sure we can find two opposing rulings in Federal law, both having equal weight.
MDY was a bit narrower than that - it hinged on the fact that the court accepted Blizzard's contention that users of WoW were not owners of a copy. Since they're not "owners", but just licensees, then the protections of 17 USC 117 doesn't apply.
Really, it just applies to licensed software. Also, it's not distribution, but copying. Since it stays on your computer and is just copied into RAM, it never goes to another member of the public. Thus it's not distribution.
Distribution does appear in 117, but it's in part b, "lease, sale, or other transfer": "Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program." Again, copying to RAM isn't implicated there. Rather, this is a codification of the First Sale doctrine which says you can resell your copy, provided you don't keep any copies.
MDY was a bit narrower than that - it hinged on the fact that the court accepted Blizzard's contention that users of WoW were not owners of a copy. Since they're not "owners", but just licensees, then the protections of 17 USC 117 doesn't apply.
Here's the specific quote:
The resolution of this issue is controlled by Ninth Circuit law. At least three cases – MAI, Triad, and Wall Data Inc. v. Los Angeles County Sheriff’s Department, 447 F.3d 769 (9th Cir. 2006) – hold that licensees of a computer program do not “own” their copy of the program and therefore are not entitled to a section 117 defense. See MAI, 991 F.2d at 518 n.5; Triad 64 F.3d at 1333; Wall Data, 447 F.3d at 784-85. Wall Data provides a two-part test for determining whether the purchaser of a copy of a software program is a licensee or an owner: if the copyright holder (1) makes clear that it is granting a license to the copy of the software, and (2) imposes significant restrictions on the use or transfer of the copy, then the transaction is a license, not a sale, and the purchaser of the copy is a licensee, not an “owner” within the meaning of section 117. Wall Data, 447 F.3d at 785.
Since WoW players don't "own" their copies, they don't have protection under 117.
When I turn 18, I am inheriting over two million dollars and will be more than happy to pay as many lawyers as it takes. [...] Moral of the story
Moral of the story: justice for the rich.
Now, don't get me wrong. I think it's great you won your victory there. A three-digit settlement (in dollars) isn't a huge deal financially; I'd be angry to pay it but I'd be able to manage it (heck, I just bought a new phone for high three digits even though my current one works just fine), and I'd been able to afford it even when I was on state welfare for students (in socialist Denmark, the government pays you to study...). Symmetrically, I'd be happy to receive a three-digit settlement---zomfg free monies!!
And I'm not speaking out of envy for that large wad of dough. Sure, I'd love to have two million dollars, but I think I'd just be putting them in a savings account just like I am my doing to my money now.
It's just striking to me that you backed up your threat of litigation with "I have a large amount of money" rather than "I have a very strong case". That speaks volumes.
Buy used CDs. Indie artists will appreciate the additional exposure, RIAA companies will miss 50% of their revenue if every CD is re-sold once on average. That way it doesn't matter who produced the music, win-win.
> the infringement of the right to distribute
Neither side has produced evidence that large numbers of copies of the works in question were distributed. Given the way filesharing works, it is highly unlikely that Thomas distributed more than 3-4 copies of each work (and even that is unlikely).
> the infringement of the right to distribute
Neither side has produced evidence that large numbers of copies of the works in question were distributed. Given the way filesharing works, it is highly unlikely that Thomas distributed more than 3-4 copies of each work (and even that is unlikely).
It only takes one act to commit infringement. Congress specifically crafted the statute (and changed it from an earlier version) to say damages "per work" rather than damages "per act of infringement".
> It’s not the artists. It’s the RIAA.
You're mainly correct, but aren't you forgetting that guy who changed his name to an unpronounceable glyph?
It only takes one act to commit infringement. Congress specifically crafted the statute (and changed it from an earlier version) to say damages "per work" rather than damages "per act of infringement".
In that case, why would the judge even think about remittitur? You've answered the wrong question. The question you didn't answer was "what are the actual damages"?
Thanks for the explanation of why another trial is possible when the judge sets aside a civil jury's damage award. But, what's the point if it can only serve to uphold or reduce the current award?
In the context of this particular case, there is absolutely... no... point.
Ray Beckerman +5 Insightful
You have yet to point us to a transfer of ownership, or to a rental, or a lease, or a lending.
Ray Beckerman +5 Insightful
Neither side has produced evidence that large numbers of copies of the works in question were distributed. Given the way filesharing works, it is highly unlikely that Thomas distributed more than 3-4 copies of each work (and even that is unlikely).
Nor was any evidence adduced of the essential elements:
dissemination of copies TO THE PUBLIC and
a sale, another transfer of ownership, a rental, a lease, or a lending.
Ray Beckerman +5 Insightful
Ray's point was that you are using YOUR definition of the word distribution. THE WORD IS NOT DEFINED
Well the word "distribution" isn't defined but the "distribution right" -- which is the thing capable of being infringed -- is defined. It doesn't include every form of distribution, only distribution by dissemination of copies to the public, by a sale, other transfer of ownership, rental, lease, or lending. Since these did not occur, there was no infringement of the limited distribution right created by 17 USC 106(3).
Ray Beckerman +5 Insightful
You have yet to point us to a transfer of ownership, or to a rental, or a lease, or a lending.
How many times will you move the goalposts before responding to my earlier post, Ray? And to think you called me a troll.
Nonetheless, I will answer your question yet again, even though you haven't addressed any of my points. Transfer of ownership includes giving away copies, which was done here. Are you arguing that the transfer of a copy of a work from the personal computer of one person, to the personal computer of another person, does not constitute a transfer of ownership of said second copy? Do you have a citation, because case law in Litecubes and National Car Rental Sys. are against you.
Now, I've responded to yet a third post of yours, Ray. Can you please now address my points from my first post - the one where you called me a shill or troll, without addressing anything I said?
It makes it very risky for someone with little money to go up against a large corporation, because they’re going to spend hundreds of thousands of dollars defending themself, and on the outside chance that you get a terrible judge who gives the case to the large corporation, you’re stuck with the bill.
A way to protect people against that would be to limit the amount either side can spend to some amount based on the amount of damages sought, with it being a criminal offence to try to circumvent the rules (by paying indirectly, for example).
(Remember, most of the Bill of Rights were instituted to protect against over-reach by a central government, not protect against fellow citizens.)
This becomes very problematic when the group "fellow citizens" includes corporations with millions of times more resources than you have.
Do what thou wilt shall be the whole of the Law
Are you saying that giving someone a copy of a CD is equivalent of nullifying the distribution rights and copyright of the people who own them?
I can't sell a used textbook I bought? I can't give away a CD I bought, by giving it as a Christmas present to my brother? I can't lend a co-worker a DVD I own?
I applaud your reasoning. And while it might not be popular here to say, I think you're absolutely right. In so far as the law works at this time, distributing new copies of a work of art fundamentally infringes the rights of the rights-holder.
The rights-holder is out a lot more than just the price of the single distribution. The market might well bear $5/song if it were enforceable, and there were not free alternatives available due to theft. Thus, the rights holders have had to lower their prices to about $1/song to compete with ALL the rights violators... not just these specific ones that they have brought action against.
The purpose of statutory damages is for someone to use it as deterrence to keep others from violating the same rights... I think that $2 million dollars does so.
Now, I don't think that songs should cost $5/song, and about $1/song is still a little too much in some cases (way better than some downloadable TV Shows on XBox Live though... since I'm more likely to watch those once and rarely return to watch it again.). But that's a marketing option, and I would be one of the people willing to go without my $5/song songs because they are now an unaffordable luxury.
But really... if an artist wants to make a song and charge $50/song to get your hands on it, that's really his right...
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I can't sell a used textbook I bought? I can't give away a CD I bought, by giving it as a Christmas present to my brother? I can't lend a co-worker a DVD I own?
First Sale Doctrine. Of course you can.
But you can't photocopy a used textbook and sell the copy or the original while retaining the other.
You can't rip a CD to your hard drive and then give away the physical CD to your brother while retaining the ripped copy.
You can't rip a DVD to your XBox Media Center, and then lend the DVD to a co-worker (although, if you get it back from him without him ripping it, you can claim no damages).
See the common thread? Copying. Your suggested hypotheticals all lack any copyright infringement.
I'll pick up from Theatetus here...
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Defendant materially violated (1) by reproducing the work in copies. While one can argue Fair Use in making backup copies, if I were to make a copy of a song, and put it on a flash disk and hand it to a friend, that would materially be a violation of (1).
Defendant likely did not materially violate (2).
Defendant materially violated (3) by distributing said copies from material violation of (1) through a transfer of ownership. We wouldn't argue this point of violation, if defendant had handed a flash drive to a friend... why should we question it if transfer of ownership occurs through an ephemeral medium with the same consequence as through a physical medium?
Defendant likely did not materially violate (4).
Defendant could likely be held to be violating (5) simply by "making available" for others to come and duplicate.
Defendant likely did not materially violate (6).
All of this is held by Tenenbaum's open statement of infringement.
I was in a court case with my fiancé, against a person who was harassing us, for which we were seeking a restraining order. The respondent to the case was going to submit voice recordings as evidence. The state of Washington requires all-party consent to recordings of communication being legal (a first step in it being admissible). I immediately objected, but when it became clear that the recordings were made from voice mail, I simply turned to my fiancé and said, "well, you consented to it... let's here what you said." Due to the content of the messages, the harassment claim seemed unlikely, and it looked like we were abusing process, and so our petitions were thrown out.
Look, I understand you're being a good lawyer and arguing a point until it's dead, and flailed, and nothing but giblets and bone splinters... but come on... don't call a disagreeing party names over it.
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS
I applaud your reasoning. And while it might not be popular here to say, I think you're absolutely right. In so far as the law works at this time, distributing new copies of a work of art fundamentally infringes the rights of the rights-holder.
Thanks. I'm in the middle ground between the RIAA and the defendants. I believe they infringed, and I believe they are liable, and I believe statutory damages are a legitimate alternative to proving actual damages, and I even believe the range Congress set from $750-$30k is reasonable...
If the juries in the Thomas and Tenenbaum cases considered damages from $750-$30k instead of $750-$150k, they would have awarded significantly less... If you go from $1k to $2k, you're doubling damages, which is huge. But if you go from $149k to $150k, you're barely changing the award. Ranges matter, psychologically.
That said, the defendants don't like my viewpoint, because they're still liable... and the RIAA doesn't like my viewpoint, because they get less money. We'll see what the judges think, though. Keep an eye on the Tenenbaum trial - Judge Gertner has my paper, though it's not an amicus brief.
The rights-holder is out a lot more than just the price of the single distribution. The market might well bear $5/song if it were enforceable, and there were not free alternatives available due to theft. Thus, the rights holders have had to lower their prices to about $1/song to compete with ALL the rights violators... not just these specific ones that they have brought action against.
The purpose of statutory damages is for someone to use it as deterrence to keep others from violating the same rights... I think that $2 million dollars does so.
Now, I don't think that songs should cost $5/song, and about $1/song is still a little too much in some cases (way better than some downloadable TV Shows on XBox Live though... since I'm more likely to watch those once and rarely return to watch it again.). But that's a marketing option, and I would be one of the people willing to go without my $5/song songs because they are now an unaffordable luxury.
But really... if an artist wants to make a song and charge $50/song to get your hands on it, that's really his right...
Absolutely, and it's true whether or not we agree with the quality of the works involved. I'm in patent law, and one of the things that gets me about Slashdot especially is the number of people saying that X technology is trivial and obvious... but that they should be able to just take it, and any other technology, without having ever invented anything. Copyright is even easier, because the rights are narrower - if it's truly that simple, then write your own songs. But if it isn't that easy, then how can you possibly argue that $1 is the sole extent of damages for infringement?
Good rational points about the award value. Which is likely why the judge threw the award out and decreased it. It seems clearly untenable to argue that the defendants maliciously went out of their way to do all of this. Wasn't the typical up-front settlement for only a few thousand? That seems fairly reasonable for me now...
Well, some of the problem with patent law is when two people invent the same thing... even if it's clear that one person invented it after the other person did. If the person inventing it had no knowledge of the invention before inventing it, then I can't really see how good an argument for infringing on it is (this is an analysis based on merit, not on law).
For instance, that Indian guy, who discovered calculus all on his own. Sure, we'd already done it before, but holy cow, he didn't even know about it, and came up with it himself. I think he deserves a lot of credit for that.
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS
But then you’re limiting their ability to get the best legal representation that they can.
It’s best to simply give them the opportunity to get their own legal counsel, and then if the situation warrants, the judge can make the decision whether to award any compensation to the winner for their legal fees that the loser must pay. Unfortunately, this only works if the judges actually ever do this.
Alexander Peter Kristopeit bought his basement from his mommy for one dollar.
Well, some of the problem with patent law is when two people invent the same thing... even if it's clear that one person invented it after the other person did. If the person inventing it had no knowledge of the invention before inventing it, then I can't really see how good an argument for infringing on it is (this is an analysis based on merit, not on law).
For instance, that Indian guy, who discovered calculus all on his own. Sure, we'd already done it before, but holy cow, he didn't even know about it, and came up with it himself. I think he deserves a lot of credit for that.
Shifting the discussion to patent law, I agree, interferences are tricky. We like having "good guys" and "bad guys" in disputes, but in an interference, two people independently invent the same thing. There are three ways to deal with this:
In most other countries, it's a race to the patent office: first to file wins. This rewards people who have lots of money to file applications.
In the US (and only the US), it's the first to invent... but you have to prove that you were first, which also can be expensive. But we like it here because it seems equitable to award the first inventor, rather than the first filer.
The third is what we do here with business methods. First to invent wins, but if anyone invented it and was using it before the inventor filed, they get a free non-exclusive license to continue. That seems to protect the second inventor, while preserving the first inventor's rights - see 35 USC 273.
That said, people hate business method patents here, so trying to move that third option towards other patents is difficult.
OK so Thomas is a Stupid Twat. -- The RIAA are arseholes, looking more and more and more and more like fucking arseholes... and stupid fucking arseholes at that. -- "Fuck the RIAA.", Oh sorry that record isn't available for downloading from ITUNES, I guess I'll just have to pirate it.
...their campaign of legal harassment is working...
Really? By what metrics?
File-sharing is still happening. If it's slowing down at all, it might be because everyone already downloaded everything they could think of. Sales certainly aren't up. They dropped another 15% or so in 2009. Certainly no one is afraid of them. Annoyed, maybe. Afraid, no. And as you said, they're spending a boatload of bucks running the legal assault.
I just don't see where the "working" part is.
I think scale is what really needs to be taken into account here.
If you make thousands of copies and sell them on every street corner in China, you are significantly impacting the monopoly of the copyright holder. You are, in fact, hurting his ability and right to sell his music there. Your actions have actually impacted the marketplace.
If you as an individual give you friend one CD... the right still exists. Your action was a drop in the bucket that has not in any significant way impacted the holder of that copyright. Your actual damage to the individual is around what they could have made by selling your friend the CD.
This is why I think it is entirely reasonable for them to go after Napster, and possibly specific bittorrent sites, but absolutely ridiculous to claim that one person on those networks is nullifying their natural monopoly in any real way.
That was the intent of copyright law and those massive statutory damages. It is being stretched so far beyond its original intent as to be completely unrecognizable.
I'm not actually a lawyer, I'm just THAT pedantic.
Well I am actually a lawyer, and knowledgeable on the matters I have discussed. Neither your pedantry nor that of your colleague is supported by the law, as demonstrated by your lack of authority for your positions.
Ray Beckerman +5 Insightful
When you respond to my question. And to you, I am Mr. Beckerman, rather than "Ray". And if this is a contest as to who has more free time, you win hands down.
Ray Beckerman +5 Insightful
When you respond to my question. And to you, I am Mr. Beckerman, rather than "Ray". And if this is a contest as to who has more free time, you win hands down.
"If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table."
Nice table-pounding, Ray.
I noted your signature with amusement:
I'm not actually a lawyer, I'm just THAT pedantic.
Well I am actually a lawyer, and knowledgeable on the matters I have discussed. Neither your pedantry nor that of your colleague is supported by the law, as demonstrated by your lack of authority for your positions.
Your title implies that you're a country lawyer, which means that you have not attended law school. However, my colleague is currently in law school, and no doubt he has discussed these issues in classes with not just lawyers, but law professors.
I on the other hand, COULD be a country lawyer, if I were simply able to take the bar exam. I'm confident that I would pass, were I able to take it. I got a 90th percentile on the practice LSATs while drunk, taking the test from 10pm to midnight, and while my fiancé-at-the-time and his mom were arguing in the other room.
If you're going to use the title "Country Lawyer" then do not discount the ability of a non-lawyer to read the law and understand it.
Now, since this is not an actual court of law, and the bar is not required to discuss these law issues, please address my points rather than just dismiss them because I am not a member of the bar.
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS
I like the third option. It seems in general more equitable. I also like the idea that if someone were able to prove sufficiently in court that they were able to make the same invention without dependence or knowledge of the other's patent that they get a free license. Kind of like, saying to bats that it's ok if you're flying, because you didn't "steal" flight from the other.
Naturally, there would be some minor yet distinct differences between the two (bats and birds fly through similar mechanisms, but bats have a more flexible "aerofoil" than birds, allowing them to perform complex and complicated flight maneuvers, like slow flight, and near-hovering flight, which in birds requires a different approach, such as flapping faster, faster and faster.)
The idea here would be if someone invented independently a similar invention that someone has a patent on, those minor differences would be locked in, so that the two cannot use the distinct features of the other's invention, but they share the common grounds of the patent.
Of course, this would require proof that one independently invented their variation.
A good example would be that Microsoft owns a patent on tabbing through hyperlinks on a webpage.
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS
Defendant materially violated (3) by distributing said copies from material violation of (1) through a transfer of ownership.
I believe the lack of "material" violation is the issue here.
"Copies" are material objects... in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
I got a pretty high score on the drunken-LSAT too.
"I assumed blithely that there were no elves out there in the darkness"
At the end of the day, if the law defined and applied stopped making sense to the majority of the population, then it must eventually be changed to reflect the will of the people. Because ultimately, laws are MADE by people, and as such, they should follow the majority.
...
None of this pedantic really matters in the BIG picture
Your thinking that a "country lawyer" is something less than a lawyer is quite mistaken. A "country lawyer" is a lawyer, with all of the requisite skills and training. [PS I'm not really a country lawyer, I'm a city lawyer. I just wish I were a country lawyer, and I would like to have the traits of a good country lawyer: common sense, concern for people, families, and communities, and a belief in doing the right thing.]
The law is a learned profession. I am not saying a lay person cannot understand the law; indeed the reason I have been active on Slashdot these past 5 years, and the reason I post actual litigation documents, and do not water things down, has been to help lay people, especially the tech community, have an improved understanding of what is actually going on in digital online copyright law. I do not know a single member of my profession who has worked harder at showing that non-lawyers are every bit as smart as lawyers, and not only can but should learn everything they can about the law and the legal process. But that does not mean that a lawyer's training and experience count for nothing; they count for a very great deal if they have been done right.
You, however, seem to elevate arrogance to a worthy position in your value system, which means you elevate ignorance to that same perch. Learning comes with humility; arrogance and self-aggrandizement, among lawyers and nonlawyers alike, blocks it.
I have cited to you a statute which describes the "distribution right" as a right which requires
-dissemination of copies TO THE PUBLIC and
-a SALE or other TRANSFER OF OWNERSHIP or a RENTAL, LEASE, OR LENDING.
And I have asked you and your colleague to show what evidence the RIAA has educed of either of these necessary elements.
When you answer my question, I'll answer yours.
I don't think you will answer it, because neither the RIAA lawyers nor the Department of Justice lawyers have been able to do so.
Your statement that you could be a country lawyer may not be right, because you do not seem to have your values in order, but you might be able to qualify to work for the RIAA; for all I know you already do.
Ray Beckerman +5 Insightful
My statement about a Country Lawyer is not intended to imply that they are less than a lawyer, in fact, my statement was intended to show that they are lawyers, simply by a different process. A country lawyer studies law outside of a law school (for any of a number of reasons) and then takes a bar exam, passes and becomes qualified to practice law, and thus a lawyer. The distinction here is that a Country Lawyer is a subset of Lawyer.
As evidence, I present the article here: http://en.wikipedia.org/wiki/Country_lawyer (Sorry, I don't have access to Black's Law Dictionary without driving down to the court house's Public Law Library to look it up there.)
In the U.S., a country lawyer, or county-seat lawyer,[1] refers to an attorney who has completed little or no formal legal training and has become a member of a county bar or a state bar after "reading law"; traditionally, these lawyers practiced general law in a rural setting, or on the frontier such as Andrew Jackson.
Next:
And I have asked you and your colleague to show what evidence the RIAA has educed of either of these necessary elements.
Theaetetus has already stated that Tenenbaum acknowledged on the stand that he distributed the materials to the public. If you can find the transcripts for the trial for me, I'd be happy to point it out. (Apparently, http://joelfightsback.com/about-the-case/legal-documents/ does not appear to have all of the documents necessary to prove this assertion.)
Theatetus and the lawyers of the RIAA have represented that Tenenbaum's claim that statutory damages for copyright violations are in violation of due process indicates it as an affirmative defense, which requires as a first principle that there is an admission to the act by the individual.
Theatetus has also stated that MediaSentry downloaded a song from the defendant in the Thomas-Rasset case. MediaSentry in this manner was acting as an anonymous member of the public, and thus the defendant materially distributed a copy of the song to the public.
As I stated in my point by point of 17 USC 1006, if either defendant had been making CDs or flash drives containing the files alleged to have been distributed, and had handed them out, there would be no question of if transfer of ownership were to have occurred.
Apple provides songs for download for money, and there is no question that this is a transfer of ownership, sale, and distribution. If such a download were supplied for free (say, because I had a coupon) there would still be no question of transfer of ownership, and distribution. (Easily arguably still as a sale, although for Scrip instead of cash at this point.)
So. We have a defendant using an affirmative defense against statutory damages being assessed against him, as well as openly admitting liability on the stand, then we have another person caught red-handed... what exactly are you looking for in terms of evidence beyond what is here... all of it is sufficient enough proof for a court of law...
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS
Are you familiar with the term "rhetorical question"? (Hint: Look at the statement I was responding to.)