I want to make sure I have this right. She was accused not merely of downloading for her own use 24 songs, but of distributing the songs to others,
Correct.
and this was the reason for the high damages. Is this correct?
No that's not correct. These were "statutory" damages. They were not connected to any actual damages. We will never know "the reason for the high damages".
You don't win cases by giving press conferences and bragging about what you're going to do to the other side. You win cases by staying up late, going through boxes of documents. I was truly surprised everyone was reading and writing all that nonsense and buying into that hype. You don't see that on my blog.
Yes I was "hoping for the best". And for all I know defendant's counsel did a great job. They certainly worked hard, and demonstrated intelligence and enthusiasm, at least in the earlier stages.
I'm not in a position to criticize her counsel because I don't know what went on, and I don't know what pressures they were under.
All I know is that, as an outside observer, I was disappointed at the absence of a number of things I would have expected to see. Whose fault that is, I don't know.
What's next is:
1.Defendant moves to set aside verdict and for new trial. 2.Motion granted, new trial scheduled. 3.New trial: defendant wins, plaintiffs appeal.
I would also not be surprised to see the RIAA aggressively seek to enter into a confidential settlement with her, even to the point of paying her attorneys fees, to avoid this getting set aside.
Those of us making the constitutional argument on excessiveness of the RIAA's statutory damages theory will be helped by this verdict.
I read it as a prediction, based on certain things happening, which didn't happen.
Thing is, I made no such prediction. The GP is fond of attributing things to me which I never said.
What I predicted was that, based upon defendant's lawyers having filed the appropriate evidentiary objections to the MediaSentry printouts, the trial should be "interesting". I was wrong about that prediction, because the defense lawyers did not "voir dire" MediaSentry or Doug Jacobson, did not object to the admissibility of their testimony, and did not rigorously cross examine them. So it was not "interesting" at all; the RIAA was given the free pass I thought it was going to be denied on the technical. I made a prediction that it would be "interesting", and my prediction turned out to be wrong.
But I made no prediction whatsoever about winning or losing.
If what you said was true, then Ray would have been crowing about it, but he isn't.
Actually, if you look at the amicus briefs I filed in SONY v. Cloud and SONY v. Tenenbaum, you will see that the only argument I made was the 5th amendment argument, leaving the 8th amendment argument to others to make.
But one of the first reactions I had when I realized that $1.92 million wasn't a typo, was that perhaps I had made a mistake, and should have made the 8th amendment argument after all.
How do you even find 12 average people who can justify in their little brains that nearly $2 million is reasonable for 24 freaking songs?? Not much surprises me anymore but come on!
I can't even imagine what they could have been thinking.
Sorry if I phrased the question trollishly. I think a better way of putting it is this: If I were accused by the RIAA, do you think you'd be a good lawyer to represent me at trial. If so, what are your qualifications? I don't do much infringing anymore, so I'm unlikely to need your services, but I'd be interested in knowing.
Its my impression that you're very knowledgeable, but since I'm not a legal expert, my impressions mean nothing. Sorry if you've already gone over this.
I don't really think it's for me to say. And I don't think your comment was trollish in the least. You were cautioning people against retaining a lawyer just based on the fact that they like him. And when I said "agreed", I meant it.
Oh trust me, I have the highest contempt for the courts right now.
This verdict will be the cause of derision internationally, and will provide endless fodder for those who are fond of laughing in their beer at the USA. Unfortunately, they will have a pretty irrefutable point.
Why would defense make such a point of asking whether the statutory maximum of $150,00[0] (I think it was) per song?
I too was wondering why the defense counsel referred to big numbers in the trial, referring to $3.6 million; usually that would be the plaintiffs' game, unless the judge -- as judges often do -- forbid the mention of such things.
I've seen a lot of people claim that defend[a]nts in copyright infringement cases should use NYCL. Forgive my bluntness, but do we really have any evidence that NYCL is a particularly skilled lawyer? Is he more likely to obtain a favorable verdict than the lawyers that these people are using? It seems like we're assuming that he's a good lawyer because he's on our side.
It's always the stupid and careless pirates that get caught in the harbor. It's natural evolution at work, a culling of the weak and unfit from the pirate fleet. Feel sad if you must for Thomas, but also feel comfort that evolution has done its job: the pirates that remain are the cream of the crop. They will bear an even more naturally skilled crew to man the next fleet of sloops and schooners.
While I don't agree with (a) your Social Darwinism theory, (b) your use of the word "pirates" as synonymous with copyright infringement, or (c) your belief that she did in fact do the file sharing, you do bring up a very interesting and perplexing point about these RIAA v. End User cases. The cases started being filed in 2003. ALL 40,000 of them are based on the Gnutella protocol (e.g. Limewire) or the FastTrack protocol (e.g. Kazaa). Meanwhile all of the sophisticated, high volume, 'swashbuckling', file sharers switched to BitTorrent long ago, yet the RIAA hasn't brought a SINGLE case based on BitTorrent. So the litigation scheme was almost by design calculated to ensnare 'low hanging fruit', the people at the low end of the file sharing totem pole, and to ensnare many innocents, since there is obviously no basis for assuming that the person who pays the phone bill is a copyright infringer.
Where are they finding these jurors at? Where is the constitution on this one? I just recently served as a juror and I was told to look at the evidence and testimony presented then come to a conclusion based on this without bias. How could anyone come to a verdict like this given the evidence from both sides? Do these people not realize at any time they could be a victim just as the defendant, open Wi-Fi anyone? This has to be a blatant violation of her 8th Amendment rights, this is wrong on so many levels it makes my head hurt.
On the bright side, sometimes when something so stupid happens, it forces a change in the law. And certainly, this verdict (a) will itself be set aside, and (b) gives added ammunition to the lawyers like myself who are arguing that the RIAA's statutory damages theory is unconstitutional.
I'm starting to believe this lady was paid off by the RIAA to set an example by letting it go through the justice system with a bad defense and keep pushing their luck for the amounts awarded and setting precedents. In the back room she just gets paid everything back in double.
Really, how difficult is it to punch through the RIAA's statements? The average helpdesk technician would punch holes in their statements if called as an 'expert witness'. I'm really starting to doubt the value of lawyers in these type of cases. The Chewbacca defense might even stand.
While it's difficult to second guess the decisions a trial lawyer makes, it is hard for me to understand why defendant's lawyers gave the plaintiffs a free pass on the MediaSentry/Jacobson nonsense, and didn't even call their own expert. It is likewise difficult to understand why the jurors weren't instructed as to what the plaintiffs had to prove in order to establish a "distribution", or why it was assumed that they were entitled to recover statutory damages (as opposed to actual damages) at all, there having been no questions or instructions relating to the essential elements of that.
But I should point out that this outsized verdict (a) makes it inevitable that the verdict will be set aside, and (b) cripples the RIAA's attempts to justify their statutory damages theory as against constitutional attack. Had the jury awarded $50,000 or $60,000 the RIAA would have more of a chance to hold on to the verdict, and would have had a less embarrassing precedent to try to defend in other cases.
To my mind, the worst thing about the transcripts is not their unavailability to the public, but their unavailability to the litigants who don't have the dough-re-mi. In UMG v. Lindor, I needed a transcript of a conference to show that the RIAA lawyer was lying about what had transpired at the conference. He had a copy of the transcript, and refused to supply me with a copy. We weren't in a position to buy one. So one side had it, and one didn't. That is really not fair.
I believe that with the occasional very rare exception, all court cases should be recorded, and that record be made available (in plain English) to the public, at public expense.
I agree with you wholeheartedly, Jane. But we are making progress. At least federal court litigation documents are available. And although they're not free, as the public had been promised they would be, they are fairly inexpensive. And the decisions are available for free.
I was wrong to think that the RIAA's technical witnesses, MediaSentry and Doug Jacobson, were not going to get a "free pass" or "free ride" this time around. They were subjected to no Daubert examination or challenges. I am bitterly disappointed.
Making available a list of file names isn't the same as offering copyrighted material. Emule for example will often respond with 1000's of file sharers having files named exactly what your looking for but usually the reported file size makes it obvious that the file is something else.
And that's the kind of thing that will make this trial "interesting". This time around there's an expert witness for the defendant, and there are seemingly very tech-savvy lawyers representing, who know and understand these things. The RIAA had a cakewalk last time; I don't think it's going to be quite so easy for them to bury the jurors and the judge in technobabble masquerading as evidence.
I'm not the only one who has ever said they'd like Slashdot better if it had a bit more integrity
Yes, you show a lot of integrity by hiding behind your "Anonymous Coward" status. Most Slashdotters have more integrity in their pinky fingers than you have in your whole body.
I'm glad the evidence is being given a hard look. And I'm fine with the case being tossed because the evidence is garbage. Jacobson deserves that.
But I think the main issue should boil down to this: "Ok, maybe she shared a few songs on the Internet. So what? Anyone can do that. Millions do."
Well there are probably many issues in this particular case. There is no single "main" issue. A legal case is like a chain; it is as strong as its weakest link. From what I have seen these past 4 years, there are a number of weak links in the RIAA's chain.
I don't care about your "bias." What I'm more worried about is this "perceived" overuse of your so called "quotes." What "evidence" do you have that people like having quotes to spruce up your "reporting?"
By the way, punctuation goes inside the quote.
"Thanks" for your "constructive" criticism. But if you'd sat through a deposition of the RIAA's "expert", as I've had to do, you'd be using quotation marks too when referring to their "evidence".
drinkypoo, what do you think was the giveaway about my "phony" hidden "bias"? Do you think it could have been the part of my Slashdot profile where I refer to my "doing battle with the RIAA & MPAA"? Or do you think it could have been that he saw the part on my blog where I describe the RIAA litigations as an "attempt to monopolize digital music and redefine copyright law", or my characterization of them as "sham"? Or do you think I tipped my hand by using the title "Recording Industry vs. The People" for the past 4 years?
Damn. And here I was trying so hard to keep my "bias" a secret.
Conceivably, the RIAA could move to dismiss, this is true. But it's just a motion and the court may decide that a motion to dismiss should be denied, requiring the RIAA to go through with. Sort of like saying "finish what you started."
The Court would deny a motion to dismiss "without prejudice" but would grant a motion to dismiss "with prejudice". So yes the RIAA could drop this. That would perhaps be the smart play for them, but smart doesn't seem to be their game.
Slashdot Mirror
I want to make sure I have this right. She was accused not merely of downloading for her own use 24 songs, but of distributing the songs to others,
Correct.
and this was the reason for the high damages. Is this correct?
No that's not correct. These were "statutory" damages. They were not connected to any actual damages. We will never know "the reason for the high damages".
You don't win cases by giving press conferences and bragging about what you're going to do to the other side. You win cases by staying up late, going through boxes of documents. I was truly surprised everyone was reading and writing all that nonsense and buying into that hype. You don't see that on my blog.
Yes I was "hoping for the best". And for all I know defendant's counsel did a great job. They certainly worked hard, and demonstrated intelligence and enthusiasm, at least in the earlier stages.
I'm not in a position to criticize her counsel because I don't know what went on, and I don't know what pressures they were under.
All I know is that, as an outside observer, I was disappointed at the absence of a number of things I would have expected to see. Whose fault that is, I don't know.
What's next is:
1.Defendant moves to set aside verdict and for new trial.
2.Motion granted, new trial scheduled.
3.New trial: defendant wins, plaintiffs appeal.
I would also not be surprised to see the RIAA aggressively seek to enter into a confidential settlement with her, even to the point of paying her attorneys fees, to avoid this getting set aside.
Those of us making the constitutional argument on excessiveness of the RIAA's statutory damages theory will be helped by this verdict.
I read it as a prediction, based on certain things happening, which didn't happen.
Thing is, I made no such prediction. The GP is fond of attributing things to me which I never said.
What I predicted was that, based upon defendant's lawyers having filed the appropriate evidentiary objections to the MediaSentry printouts, the trial should be "interesting". I was wrong about that prediction, because the defense lawyers did not "voir dire" MediaSentry or Doug Jacobson, did not object to the admissibility of their testimony, and did not rigorously cross examine them. So it was not "interesting" at all; the RIAA was given the free pass I thought it was going to be denied on the technical. I made a prediction that it would be "interesting", and my prediction turned out to be wrong.
But I made no prediction whatsoever about winning or losing.
If what you said was true, then Ray would have been crowing about it, but he isn't.
Actually, if you look at the amicus briefs I filed in SONY v. Cloud and SONY v. Tenenbaum, you will see that the only argument I made was the 5th amendment argument, leaving the 8th amendment argument to others to make.
But one of the first reactions I had when I realized that $1.92 million wasn't a typo, was that perhaps I had made a mistake, and should have made the 8th amendment argument after all.
How do you even find 12 average people who can justify in their little brains that nearly $2 million is reasonable for 24 freaking songs?? Not much surprises me anymore but come on!
I can't even imagine what they could have been thinking.
I would also be interested to know if that $1.9 million award included legal fees as well as compensatory and pun[i]tive damages
1. No it does not include legal fees.
2. It does not include any compensatory damages; the compensatory damages would have been approximately $8.
3. The damages are "statutory" damages which are similar to "punitive" damages.
Sorry if I phrased the question trollishly. I think a better way of putting it is this: If I were accused by the RIAA, do you think you'd be a good lawyer to represent me at trial. If so, what are your qualifications? I don't do much infringing anymore, so I'm unlikely to need your services, but I'd be interested in knowing. Its my impression that you're very knowledgeable, but since I'm not a legal expert, my impressions mean nothing. Sorry if you've already gone over this.
I don't really think it's for me to say. And I don't think your comment was trollish in the least. You were cautioning people against retaining a lawyer just based on the fact that they like him. And when I said "agreed", I meant it.
Oh trust me, I have the highest contempt for the courts right now.
This verdict will be the cause of derision internationally, and will provide endless fodder for those who are fond of laughing in their beer at the USA. Unfortunately, they will have a pretty irrefutable point.
Why would defense make such a point of asking whether the statutory maximum of $150,00[0] (I think it was) per song?
I too was wondering why the defense counsel referred to big numbers in the trial, referring to $3.6 million; usually that would be the plaintiffs' game, unless the judge -- as judges often do -- forbid the mention of such things.
I've seen a lot of people claim that defend[a]nts in copyright infringement cases should use NYCL. Forgive my bluntness, but do we really have any evidence that NYCL is a particularly skilled lawyer? Is he more likely to obtain a favorable verdict than the lawyers that these people are using? It seems like we're assuming that he's a good lawyer because he's on our side.
Agreed.
It's always the stupid and careless pirates that get caught in the harbor. It's natural evolution at work, a culling of the weak and unfit from the pirate fleet. Feel sad if you must for Thomas, but also feel comfort that evolution has done its job: the pirates that remain are the cream of the crop. They will bear an even more naturally skilled crew to man the next fleet of sloops and schooners.
While I don't agree with (a) your Social Darwinism theory, (b) your use of the word "pirates" as synonymous with copyright infringement, or (c) your belief that she did in fact do the file sharing, you do bring up a very interesting and perplexing point about these RIAA v. End User cases. The cases started being filed in 2003. ALL 40,000 of them are based on the Gnutella protocol (e.g. Limewire) or the FastTrack protocol (e.g. Kazaa). Meanwhile all of the sophisticated, high volume, 'swashbuckling', file sharers switched to BitTorrent long ago, yet the RIAA hasn't brought a SINGLE case based on BitTorrent. So the litigation scheme was almost by design calculated to ensnare 'low hanging fruit', the people at the low end of the file sharing totem pole, and to ensnare many innocents, since there is obviously no basis for assuming that the person who pays the phone bill is a copyright infringer.
Where are they finding these jurors at? Where is the constitution on this one? I just recently served as a juror and I was told to look at the evidence and testimony presented then come to a conclusion based on this without bias. How could anyone come to a verdict like this given the evidence from both sides? Do these people not realize at any time they could be a victim just as the defendant, open Wi-Fi anyone? This has to be a blatant violation of her 8th Amendment rights, this is wrong on so many levels it makes my head hurt.
On the bright side, sometimes when something so stupid happens, it forces a change in the law. And certainly, this verdict (a) will itself be set aside, and (b) gives added ammunition to the lawyers like myself who are arguing that the RIAA's statutory damages theory is unconstitutional.
I'm starting to believe this lady was paid off by the RIAA to set an example by letting it go through the justice system with a bad defense and keep pushing their luck for the amounts awarded and setting precedents. In the back room she just gets paid everything back in double. Really, how difficult is it to punch through the RIAA's statements? The average helpdesk technician would punch holes in their statements if called as an 'expert witness'. I'm really starting to doubt the value of lawyers in these type of cases. The Chewbacca defense might even stand.
While it's difficult to second guess the decisions a trial lawyer makes, it is hard for me to understand why defendant's lawyers gave the plaintiffs a free pass on the MediaSentry/Jacobson nonsense, and didn't even call their own expert. It is likewise difficult to understand why the jurors weren't instructed as to what the plaintiffs had to prove in order to establish a "distribution", or why it was assumed that they were entitled to recover statutory damages (as opposed to actual damages) at all, there having been no questions or instructions relating to the essential elements of that.
But I should point out that this outsized verdict (a) makes it inevitable that the verdict will be set aside, and (b) cripples the RIAA's attempts to justify their statutory damages theory as against constitutional attack. Had the jury awarded $50,000 or $60,000 the RIAA would have more of a chance to hold on to the verdict, and would have had a less embarrassing precedent to try to defend in other cases.
To my mind, the worst thing about the transcripts is not their unavailability to the public, but their unavailability to the litigants who don't have the dough-re-mi. In UMG v. Lindor, I needed a transcript of a conference to show that the RIAA lawyer was lying about what had transpired at the conference. He had a copy of the transcript, and refused to supply me with a copy. We weren't in a position to buy one. So one side had it, and one didn't. That is really not fair.
I believe that with the occasional very rare exception, all court cases should be recorded, and that record be made available (in plain English) to the public, at public expense.
I agree with you wholeheartedly, Jane. But we are making progress. At least federal court litigation documents are available. And although they're not free, as the public had been promised they would be, they are fairly inexpensive. And the decisions are available for free.
I was wrong to think that the RIAA's technical witnesses, MediaSentry and Doug Jacobson, were not going to get a "free pass" or "free ride" this time around. They were subjected to no Daubert examination or challenges. I am bitterly disappointed.
I don't know if anything will be "lucrative within Law", but I am certain that lawyers who understand technology will have an edge.
Help! Moderators! I fell into the trap, and fed the troll with the above comment, and now I've been modded "Flamebait".
Making available a list of file names isn't the same as offering copyrighted material. Emule for example will often respond with 1000's of file sharers having files named exactly what your looking for but usually the reported file size makes it obvious that the file is something else.
And that's the kind of thing that will make this trial "interesting". This time around there's an expert witness for the defendant, and there are seemingly very tech-savvy lawyers representing, who know and understand these things. The RIAA had a cakewalk last time; I don't think it's going to be quite so easy for them to bury the jurors and the judge in technobabble masquerading as evidence.
I'm not the only one who has ever said they'd like Slashdot better if it had a bit more integrity
Yes, you show a lot of integrity by hiding behind your "Anonymous Coward" status. Most Slashdotters have more integrity in their pinky fingers than you have in your whole body.
I'm glad the evidence is being given a hard look. And I'm fine with the case being tossed because the evidence is garbage. Jacobson deserves that. But I think the main issue should boil down to this: "Ok, maybe she shared a few songs on the Internet. So what? Anyone can do that. Millions do."
Well there are probably many issues in this particular case. There is no single "main" issue. A legal case is like a chain; it is as strong as its weakest link. From what I have seen these past 4 years, there are a number of weak links in the RIAA's chain.
I don't care about your "bias." What I'm more worried about is this "perceived" overuse of your so called "quotes." What "evidence" do you have that people like having quotes to spruce up your "reporting?" By the way, punctuation goes inside the quote.
"Thanks" for your "constructive" criticism. But if you'd sat through a deposition of the RIAA's "expert", as I've had to do, you'd be using quotation marks too when referring to their "evidence".
I agree that you should wash your mouth.
Is that you, Matthew?
drinkypoo, what do you think was the giveaway about my "phony" hidden "bias"? Do you think it could have been the part of my Slashdot profile where I refer to my "doing battle with the RIAA & MPAA"? Or do you think it could have been that he saw the part on my blog where I describe the RIAA litigations as an "attempt to monopolize digital music and redefine copyright law", or my characterization of them as "sham"? Or do you think I tipped my hand by using the title "Recording Industry vs. The People" for the past 4 years?
Damn. And here I was trying so hard to keep my "bias" a secret.
Conceivably, the RIAA could move to dismiss, this is true. But it's just a motion and the court may decide that a motion to dismiss should be denied, requiring the RIAA to go through with. Sort of like saying "finish what you started."
The Court would deny a motion to dismiss "without prejudice" but would grant a motion to dismiss "with prejudice". So yes the RIAA could drop this. That would perhaps be the smart play for them, but smart doesn't seem to be their game.