Yes, but for the sake of accuracy let us remember that there was no proof of "distributing". The judge, at the RIAA's behest, specifically instructed the jury that the record companies did not have to prove that there was in fact any actual distribution.
Ms. Thomas's lawyer presented the judge with a proper jury instruction. The judge initially agreed with him and accepted that instruction. Thereafter, the RIAA's lawyer convinced the judge to use an incorrect jury instruction. The instruction that was used relieved the plaintiff of having to prove any of the elements of a distribution under 17 USC 106(3). And indeed the plaintiffs had no evidence, and offered no evidence, of any of those elements.
I've been working in copyright law for 34 years. The RIAA claimed violation of 2 rights, the reproduction right (17 USC 106(1)) and the distribution right (17 USC 106(3)), but had proof of neither.
If the motion is granted, there probably will not be an appeal.
Not even by the RIAA? If the judge orders a new trial, there would not be an appealable order. If the judge reduces the award to a smaller number, and then judgment is entered on the smaller number, then both sides could appeal.
SONY BMG EMI Warner Bros. Records Vivendi Universal and their affiliates. The head lawyers are Holme Roberts & Owen in Denver CO and Matthew Oppenheim in Washington DC.
It it was simple to pay and didn't have a serious impact on the convicted then it wouldn't really be much of a fine now would it. 1. She wasn't "convicted" of anything.
2. It's not supposed to be a "fine", it's supposed to be a civil jury verdict awarding reasonable compensation from the defendant to the plaintiff.
The DoJ also appears to buy into the RIAA's argument that making a file available on a P2P network constitutes copyright infringement. This statement is directly contradicted on the first page of the brief, where the DOJ states, in footnote 1, on the very first page:
Because the defendant's motion does not contest the legal sufficiency of any of the grounds for recovery set forth in the jury instructions, and because we are participating solely to address the constitutional issue, we do not address which of the exclusive rights under the Copyright Act were violated here. (pdf)
Likewise, when the DOJ filed its brief in Elektra v. Barker, it said it took no position on the RIAA's "making available" argument, and had never prosecuted anyone for "making available".
Contrary to the post, no appeal has been filed in this case. All that has occurred is a motion to set aside the verdict. The motion is not addressed to an appeals court, but to the Judge who presided over the trial.
If the motion is granted, there probably will not be an appeal.
Here's a basic legal summary of why Twombly is the active issue here:
Before Twombly, a case called Conley was the dominant SCOTUS case explaining exactly what standards a Plaintiff's court pleadings must satisfy in order to, in our parlance, "state a claim". In truth, Conley was extremely ambiguous, and for years the courts had decried it as a waste of time and money.
Twombly has now established that pleadings must, as a bare minimum, describe enough alleged facts so that - when the court assumes all of them to be true for the sake of a Motion to Dismiss - the pleadings allege a "plausible" claim. This means it has to be slightly more than "possible": for example, it's possible that I am in fact Bill Gates, but it's simply not plausible
Now, the most practical effect of Twombly in district courts around the country so far (it's an August 2007 decision) has been that it is no longer sufficient to simply say "The defendant did X to me", and then simply list the alleged components of X as defined by law. Instead, plaintiffs now have to allege sufficient facts that move it across that fine line.
Here, the Judge has simply stated that the Plaintiff has filed to properly allege his complaint; this is no different than if the Plaintiff had alleged rape but failed to allege forceful sexual assault. And what is most fascinating is that it was this same Twombly decision that led to the demise of the RIAA's own, now deceased, boilerplate "making available" complaint.
A party's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Maybe it's the lack of coffee this morning, maybe it's the fact that I didn't get a degree in Legalese Obfuscation, but: What on Earth is this sentence trying to say? Of all the things to say about this motion dismissal, why include this in the summary?
A little further research seems to indicate that the anti-trust charges were kicked out not because the judge ruled that the RIAA isn't an anti-trust organization - the argument didn't get that far. Instead, the judge ruled that Limewire hadn't really given much cause (i.e., hadn't provided enough factual argument) to investigate the matter further. Any lawyers on the group want to delve deeper? Exactly. The Court is saying that the initial claim -- the pleading -- did not have enough meat on its bones. The Court is also saying that, now that Lime Wire has gotten some evidence, if it feels it now has enough meat to put in a good amended pleading, it can make a motion for permission to do so, showing the Judge the new evidence it would be using.
For some good reading on the constitutionality issue, Well, I'd just look to Exxon. They do more than $3 billion in real damage and the punitive damages awarded were about twice actual damage. Those were ruled unconstitutional by a judge. So, if the actual loss is $0.05, then by that judge's logic, the cap at punitive damages should be $0.10. And yes, I realize that the statutory and punitive damage awards are not the same and the facts aren't the same, but what works for the trillion dollar companies should work for the little guys, right? Interesting you should say that, because Brian Toder -- the lawyer who's made the motion to set aside the verdict in Capitol v. Thomas -- works on the Exxon case.
I'm not exactly sure what you're saying, but my understanding is that the way the lawsuits are working, people are sued for offering files in a public directory for sharing - regardless of whether there is any evidence that anyone ever downloaded the songs from them or not. That act is what the RIAA is counting as copyright infringement. They are not suing people for downloading the songs, only for uploading them. I'm not personally clear on whether or not that means that downloading isn't infringement, because you'd think if it were, they'd be suing for it, too. They throw it in, in their complaint. But they have no evidence of it.
Is it just me or is there a ridiculous number of exhibits and motions in this Lindor case? I count 239 links on Ray's blog just for this one case. I noticed this link from December 14, 2006--a year ago--in which the plaintiffs appear to be stalling on this very issue. The letter makes reference to a hearing from August of 2006. Has this one issue really been going on that long? 1. No it's not just you; it is ridiculous. Ms. Lindor has never even used a computer.
2. It took us 6 months to get the revenue information. Now it's been 4 1/2 months so far to try and get the expense information.
We are early in the game.
It's happened here and is happening here. It's only a recent development that a significant number of people have been fighting back.
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Yes, but for the sake of accuracy let us remember that there was no proof of "distributing". The judge, at the RIAA's behest, specifically instructed the jury that the record companies did not have to prove that there was in fact any actual distribution.
Ms. Thomas's lawyer presented the judge with a proper jury instruction. The judge initially agreed with him and accepted that instruction. Thereafter, the RIAA's lawyer convinced the judge to use an incorrect jury instruction. The instruction that was used relieved the plaintiff of having to prove any of the elements of a distribution under 17 USC 106(3). And indeed the plaintiffs had no evidence, and offered no evidence, of any of those elements.
I've been working in copyright law for 34 years. The RIAA claimed violation of 2 rights, the reproduction right (17 USC 106(1)) and the distribution right (17 USC 106(3)), but had proof of neither.
SONY BMG
EMI
Warner Bros. Records
Vivendi Universal
and their affiliates.
The head lawyers are Holme Roberts & Owen in Denver CO and Matthew Oppenheim in Washington DC.
There was NO evidence of any songs having been "distributed".
2. It's not supposed to be a "fine", it's supposed to be a civil jury verdict awarding reasonable compensation from the defendant to the plaintiff.
The DoJ also appears to buy into the RIAA's argument that making a file available on a P2P network constitutes copyright infringement. This statement is directly contradicted on the first page of the brief, where the DOJ states, in footnote 1, on the very first page: Because the defendant's motion does not contest the legal sufficiency of any of the grounds for recovery set forth in the jury instructions, and because we are participating solely to address the constitutional issue, we do not address which of the exclusive rights under the Copyright Act were violated here. (pdf)
Likewise, when the DOJ filed its brief in Elektra v. Barker, it said it took no position on the RIAA's "making available" argument, and had never prosecuted anyone for "making available".
If the motion is granted, there probably will not be an appeal.
The actual damages are the lost profits. I.e.,
Lost revenue
less Saved expensesLost profits. This ruling is about the saved expenses.
Well they've tried to rectify that.
I would say that Richard Stallman, the Free Software Foundation, and Creative Commons are the leaders.
I think USC and every other college targeted by the RIAA's illegal procedures has a duty to do what the University of Oregon did.
For some good reading on the constitutionality issue, I recommend Cam Barker's article in Texas Law Review, "Grossly Excessive Penalties in the Battle Against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement"
2. It took us 6 months to get the revenue information. Now it's been 4 1/2 months so far to try and get the expense information.
Someone who shows up to a fistfight with a shotgun is much more likely to be incarcerated.
I don't think anyone, even an armed police officer who happens upon the scene, is likely to be 'chiding' him much.
In my opinion, highly likely. Their clients are already starting to get punished.
We are early in the game. It's happened here and is happening here. It's only a recent development that a significant number of people have been fighting back.