Does the white house realize that a multibillion-dollar organization just won a $200k victory against a single person? Doesn't this seem straight up unfair at the core? Well why shouldn't the most reviled American presidency in modern history add one more notch to its belt by piling on against this poor woman, who was just hit with a $222,000 jury verdict over $23.76 worth of song files?
They also have a duty to not have experts that perjure themselves to advance a case. As well as not basing entire cases on speculation. And making some effort to allow for the subpoenas to be challenged before they are formal court orders.
While the definition of perjury seems in recent years to have slid somewhat, claiming to be an expert in order to pass off misleading information as fact. Especially when it is used to manufacture evidence which shouldn't be admissible in court to prop up a poorly thought out case.
Ethics thus far have not been of any real concern to the RIAA, so I can only imagine why they would want to start behaving at this juncture having already gotten away with far more than is common. Seems to me that if they haven't been worried about being disbarred for their less than professional behavior up until now that this won't be the tipping point. Well I can see you've been doing your reading. Agreed, they will do anything they can get away with.
1. It's more than a moral obligation, it's also a legal obligation. 2. The same RIAA lawyer is supervising, and aware of everything going on in, all 3 cases.
I don't know how to break this to you but -copyright infringement is NOT a crime -the RIAA, thankfully, doesn't have the power to "prosecute" anyone, and -if the RIAA had the ability to get the prosecutors interested in prosecuting these ridiculous cases, they would have done so already.
The Department of Justice stated in its brief in Elektra v. Barker that it DOES NOT PROSECUTE PEOPLE FOR "MAKING AVAILABLE" and that the only internet copyright prosecutions it has prosecuted were piracy cases.
IAAL, and I've worked directly for judges. This won't win the RIAA lawyers any friends on the bench.
There is an ethical obligation to inform the court of legal authority (cases) in the controlling jurisdiction (same state, or federal circuit, for example) known to the lawyer to be directly adverse to the position of the client. See ABA Model Rules of Professional Conduct, Rule 3.3(a)(2).
Rule 3.3(a)(3) prohibits offering "false evidence." Not quite on point, because legal authority is not "evidence".
The commentary suggests that a "lawyer must not allow the tribunal to be misled by false statement of law or fact or evidence that the lawyer knows to be false." Rule 3.3, cmt. 2. That's pretty inclusive, and I'd feel comfortable arguing that failing to disclose the reversal of authority you've previous cited is an ethical violation. A referal to the state bar commission could be in order here, and let them sort it out. Thank you, monstermagnet. I was waiting for the cavalry to arrive.
When they sent the judge a copy of the case.... and they found out the decision had been vacated by the judge who issued it.... yes they had an obligation to notify the Court immediately.
It is highly improper. If a lawyer sends a copy of an authority to a judge, and then learns that the authority was vacated by the judge who wrote it, while there is still a motion pending on the judge's desk, he is obligated to immediately notify the judge of the change. A lawyer is not only a representative of the client; he is also an officer of the Court.
She has plenty of grounds for an appeal. E.g., -incorrect jury instructions which removed the plaintiffs' burden of proving a transfer of actual files -the unconstitutionality of a verdict for about 30,000 times the actual damage, and -allowing an "expert" to testify who doesn't meet the admissibility requirements under the Federal Rules.
I'm sure there were many others, but I wasn't there so I can't give you the list. I can tell you that the above three would be sufficient -- in fact each would be sufficient on its own -- to get a reversal.
It's asinine for someone to pay $60k on a crappy legal defense on a case where the facts were against her when she could have settled for $3500. My question is, why did she make this decision? When people do irrational things, I get suspicious. If someone on the street offers me a genuine-looking Rolex for $50, it makes me think something is up. When a housewife from Minnesota spends entirely too much money to get out of a little trouble, it makes me think something is up.
There are several possible rational explanations for this - she has deep pockets no one knows about, she has been bankrolled by the EFF under the table, she has been bankrolled by the RIAA under the table, she's very stubborn and likes to stand up for what she believes in even if it costs her big bucks she doesn't have, or maybe she's just as dumb as a box of rocks and didn't see the freight train coming. I would accept any of these explanations if there is evidence for it.
Aren't you the slightest bit curious as to what motivated her to reject a settlement when she had such a weak case? Or is her case only weak in hindsight? That's easy.
According to The Register [theregister.co.uk] the judge's instructions seem to be a bit extreme:
US District Judge Michael Davis ruled the labels did not have to prove the songs were transfered for Thomas to be held liable. The act of making the songs available is enough to constitute copyright infringement, he said.
It sounds like he's saying just the act of storing them on her hard drive constitutes copyright infringement. This could be grounds for an appeal if she has any funding left. Instructions 14 and 15 were off the wall.
My sympathies to our friends south of the border, and particularly to this defendent!
Now I'm back to questioning why the RIAA dropped the make available argument elsewhere, but were able to successfully put it into play for jury instruction in this trial? Yikes!
In Canada we watch the US situation quite carefully as our government(s)and leading political parties have shown a preponderance to follow the US lead. The CRIA (our RIAA) is their political patron, doling out cash to compliant MPs. I'm hoping you can get this reversed this - quick!
It makes all the difference in the world for us, too.
Now - how do we donate for the appeal? 1. They know it's a weak link, and therefore omit it from their new complaints. But in the context of this trial what did they have to lose by trying to hoodwink the judge?
2. For now you should send checks to her lawyers. Don't designate it for the appeal. They deserve to get some pay for all the work they have been doing. Make the checks out to Chestnut & Cambronne PA, Esqs.... indicate in the memo section that it's for Jammie Thomas's case.... and mail them to Brian N. Toder, Esq., Chestnut & Cambronne, P.A. 204 North Star Bank 4661 Highway 61 White Bear Lake, MN 55110 If your using Fed Ex, recipient phone no. is 651.653.0990
A verdict of $222,000.00, for infringement of 24 song files worth a total of $23.76?
In a case where there was zero evidence of the defendant having transferred any of those files?.
It is one of the most irrational things I have ever seen in my life in the law.
If the Judge doesn't set aside the verdict sua sponte, I expect there to be motion practice to set aside the verdict, based on its obvious unconstitutionality and numerous other reasons, and if that fails I expect there to be a successful appeal.
It is an outrage, and I hope it is a wakeup call to the world that we all need to start supporting the defendants in these cases, and the attorneys who are sacrificing so much to represent them. And the support cannot be with words, it must be with check books. And it cannot be next year, it must be now.
All the business people who make a living from the vibrancy, democracy, and freedom of expression which is the internet, need to get behind the RIAA's victims; if they do not, the world in which they hope to thrive and prosper will disappear rapidly.
The RIAA ghouls smelled blood in Duluth, and I guess they were right.
Sadly, according to the update at the end of the Ars Technica article (see http://arstechnica.com/news.ars/post/20071004-debate-over-making-available-jury-instruction-as-capitol-v-thomas-wraps-up.html [arstechnica.com]), the "making available" argument will be provided to the jury.
This is sad, because the "making available" argument has no basis in law except when a person is actively promoting infringement (see the Grokster case). There's no proof Jammie ever encouraged infringement.
Here's hoping that Jammie prevails!!!
Regards,
Art I guess that's why they wanted to go to war in Duluth. They knew they couldn't convince a Manhattan judge to buy into that nonsense, but hoped they might get a midwestern judge, with less copyright law experience, to fall for it. What a shame. And probably Ms. Thomas doesn't have the dough for an appeal.
I know you're joking, but you can help right here [blogspot.com].
That's for the Marie Lindor case, handled by NYCL. I believe she's the home health aide who hasn't ever used a computer, but I can't keep all the defendants straight any more so I may be wrong.
I don't know that it'll ever make YouTube, but NYCL has made it to radio at least (NPR) and if things go on, I wouldn't be surprised for him to get on TV eventually. 1. You're right, the PayPal account is for the Lindor case, in which the Jacobson deposition -- which will no doubt see action next week in Virgin v. Thomas -- was taken. And yes, Ms. Lindor is a home health aide who has never even used a computer.
2. We've been on tv, along with the RIAA's president Cary Sherman.
Ray, I've gotta say, I listened to these segments with great interest.
I'd like to shake your hand for all you've done to promote the hell out of this cause. But I probably won't, because you're probably hundreds of miles away from me, and that's a long way to drive just to shake someone's hand. Still, you've done a fantastic job, and when all of this is looked on as a shameful part of digital music's past, I'm personally giving you a lot of credit for it with your excellent blog and tireless efforts. Thanks, King. Very much appreciated. Let's hope Motley Fool is right and they're heading into the brick wall now.
As a Duluthian, I can't agree with the following.
These people would buy the spiel of the RIAA that MP3 piracy is closely linked to funding terrorism, paedophilia and the clubbing of baby seals and end up giving some poor bastard the death sentence for downloading a Celine Dion CD.
Duluth is a VERY liberal town, with a somewhat conservative outlook. In otherwords, you better DAMN well have a good case, to come into our backyard and sue some good-old-boys (ya sooper don't ya know). And frankly, as many slashdotters would agree, the RIAA often seeks excessive damages. BTW, civil cases are about proving real damages.
Just cause its wayyy uppp north (ya know), don't go making asinine assumptions about what people will and won't buy. There are 3 universities in an 120,000 person area, and I'd generally consider people in the area to be fairly reasonable.
BTW its speil not spiel Thanks. From my experience the jurors are usually the smartest people in the courtroom. I hope you can catch some of the trial and report to us on what is happening.
I will be at the trial and might be able to post as it happens.
I will certainly post something when I am out of the trial if nothing else.....more to come- Fantastic, mr_clem. Would appreciate it if you could email me or phone me reports of what you observe. My email address is available on my blog and on my firm's web site.
Thanks.
Even if you understand that it's wrong and agree that the RIAA should be compensated when they do sue someone who is guilty, that doesn't mean you agree that they're asking for reasonable compensation. $750 per song? Do you really think that every time a person puts a song in their shared folder, they deprive the RIAA of an average of 750 legal downloads? Particularly if no one has to have ever downloaded the song from you to get sued?
If they were asking for $5 or $10 a song - and being more careful about who they sued - sure there'd still be some people claiming they should never ever sue anyone, but I think many people would be at least a little more sympathetic. At least I'd only think they were being silly and self-destructive for clinging to an outdated business model, rather than seeing them as extortionists and fear-mongerers. And given that they're settling for $3000, you can't tell me that they actually need the whole $750/song for legal fees, etc. They use it as a scare tactic, plain and simple, so they can get their $3k with no fuss and muss. Hence the defense that the RIAA's $750-per-song-file damages theory (2000 times the actual damages per song) might be a wee bit unconstitutional, since, as Judge Trager said:
[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered.....Furthermore, Lindor provides a sworn affidavit asserting that plaintiffs' actual damages are 70 cents per recording and that plaintiffs seek statutory damages under the Copyright Act that are 1,071 times the actual damages suffered. Aff. of Morlan Ty Rogers, ("Rogers Aff.", [pars.]5, 6. See also Aff. of Aram Sinnreich, ("Sinnreich Aff."), [par.] 2, 3 (attesting that popular music sound recording downloads and consumer license to use same are lawfully obtainable to the public at 99 cents per song, and of that 99 cents, roughly 70 cents per song is paid by the retailer to the record label). As FRCP Rule 12(b)(6) requires that this figure be taken as true for purposes of the motion, Lindor has alleged a factual basis supporting her affirmative defense."
I'm forced to wonder, is the RIAA coming out ahead at the end of all of this? Did enough people settle that, despite all the garbage, they're still in the black? And, if they aren't (as I suspect is the case), why would the client-companies of the RIAA keep the RIAA legal staff employed? I know, were I in charge of a mega-media corporation and a team of lawyers screwed the pooch as badly as the RIAA legal team appears to have done so, I'd be handing them all their walking papers... I'm pretty sure they're losing a couple of million a year on the litigation campaign. They make money on settlements, lose money on default judgments, and lose a lot of money on any case where the defendant fights back. And as public awareness grows, more and more people are fighting back.
As to the "walking papers", I imagine the shareholders are on the verge of doing that pretty soon.
Slashdot Mirror
1. It's more than a moral obligation, it's also a legal obligation.
2. The same RIAA lawyer is supervising, and aware of everything going on in, all 3 cases.
I don't know how to break this to you but
-copyright infringement is NOT a crime
-the RIAA, thankfully, doesn't have the power to "prosecute" anyone, and
-if the RIAA had the ability to get the prosecutors interested in prosecuting these ridiculous cases, they would have done so already.
The Department of Justice stated in its brief in Elektra v. Barker that it DOES NOT PROSECUTE PEOPLE FOR "MAKING AVAILABLE" and that the only internet copyright prosecutions it has prosecuted were piracy cases.
Almost nobody targeted by the RIAA has the resources to withstand the $500,000 or so in legal fees the RIAA is willing to throw into a case.
When they sent the judge a copy of the case.... and they found out the decision had been vacated by the judge who issued it.... yes they had an obligation to notify the Court immediately.
That's litigation. Along the way everybody wins some battles, and loses some battles.
It is highly improper. If a lawyer sends a copy of an authority to a judge, and then learns that the authority was vacated by the judge who wrote it, while there is still a motion pending on the judge's desk, he is obligated to immediately notify the judge of the change. A lawyer is not only a representative of the client; he is also an officer of the Court.
She has plenty of grounds for an appeal. E.g.,
-incorrect jury instructions which removed the plaintiffs' burden of proving a transfer of actual files
-the unconstitutionality of a verdict for about 30,000 times the actual damage, and
-allowing an "expert" to testify who doesn't meet the admissibility requirements under the Federal Rules.
I'm sure there were many others, but I wasn't there so I can't give you the list. I can tell you that the above three would be sufficient -- in fact each would be sufficient on its own -- to get a reversal.
When a lawyer submits a case to the Court, and then discovers that the case was overturned, he is obligated to notify the Court immediately.
I'm not so sure this verdict isn't going to get set aside. There are excellent grounds for an appeal.
Because she was innnocent.
2. For now you should send checks to her lawyers. Don't designate it for the appeal. They deserve to get some pay for all the work they have been doing. Make the checks out to Chestnut & Cambronne PA, Esqs.... indicate in the memo section that it's for Jammie Thomas's case.... and mail them to Brian N. Toder, Esq., Chestnut & Cambronne, P.A. 204 North Star Bank 4661 Highway 61 White Bear Lake, MN 55110 If your using Fed Ex, recipient phone no. is 651.653.0990
I believe that the outside world will finally start coming to Ms. Thomas's aid.
A verdict of $222,000.00, for infringement of 24 song files worth a total of $23.76?
In a case where there was zero evidence of the defendant having transferred any of those files?.
It is one of the most irrational things I have ever seen in my life in the law.
If the Judge doesn't set aside the verdict sua sponte, I expect there to be motion practice to set aside the verdict, based on its obvious unconstitutionality and numerous other reasons, and if that fails I expect there to be a successful appeal.
It is an outrage, and I hope it is a wakeup call to the world that we all need to start supporting the defendants in these cases, and the attorneys who are sacrificing so much to represent them. And the support cannot be with words, it must be with check books. And it cannot be next year, it must be now.
All the business people who make a living from the vibrancy, democracy, and freedom of expression which is the internet, need to get behind the RIAA's victims; if they do not, the world in which they hope to thrive and prosper will disappear rapidly.
The RIAA ghouls smelled blood in Duluth, and I guess they were right.
But it isn't over.
Certainly. Send checks to her lawyers, earmarked for the Virgin v. Thomas case. Here is her lawyer's information:
Toder, Brian N., Chestnut & Cambronne, P.A. 204 North Star Bank 4661 Highway 61 White Bear Lake, MN 55110
2. We've been on tv, along with the RIAA's president Cary Sherman.
As to the "walking papers", I imagine the shareholders are on the verge of doing that pretty soon.