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Judge in Capitol v. Thomas Considers New Trial
Posted by
timothy
on Thu May 15, 2008 01:27 PM
from the disproportionality dept.
from the disproportionality dept.
Jay Maynard writes "The judge in Capitol Records v. Thomas said today he's thinking about granting a new trial because he may have committed a 'manifest error of law' in his jury instructions. He says that his instruction that simply uploading music to a P2P network without any proof that anyone actually downloaded it may conflict with a case in the Eighth Circuit Court of Appeals that said 'infringement of [the distribution right] requires an actual dissemination.' Briefs are due by May 29, with oral argument July 1. The judge invited friend of the court briefs by May 29, as well." NewYorkCountryLawyer links to the Judge's order itself (PDF), in which the Judge notes that he may (in NYCL's words) "have overlooked controlling Eighth Circuit authority, the case of National Car Rental v. Computer Associates, which held that you can't have a violation of the 'distribution right' without an 'actual dissemination of copies or phonorecords.'" Update: 05/15 18:54 GMT by T : Note that while the linked story as well as Jay Maynard's summary use the term "upload," Thomas wasn't uploading the files themselves, only making them available.
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Verdict Reached In RIAA Trial 1001 comments
jemtallon writes "The jury in the previously mentioned Captiol v Thomas story has reached a verdict. They have found in favor of the plaintiffs, Capitol, and ordered that she pay a $222,000 fine for 24 cases of copyright infringement."
[+]
UMG Calls Infringement Damages "Excessive" 126 comments
I Don't Believe in Imaginary Property writes "Why would UMG, one of the four major RIAA members, consider an infringement award 'grossly excessive'? Naturally, because they were the ones ordered to pay it. While they had no trouble with Jammie Thomas being ordered to pay $222k, some 13,214 times the actual costs, they thought that being ordered to pay ten times the actual damages in Bridgeport v. Justin Combs was just too much. Then again, maybe that's why they didn't complain back when the increased statutory damages section was cut from the PRO-IP Act? Now if they could just cut the rest of the act."
[+]
Your Rights Online: Law Profs File Friend-of-Court Brief Against RIAA 186 comments
NewYorkCountryLawyer writes "A group of 10 copyright law professors has filed an amicus curiae ('friend of the court') brief on the side of the defendant in Capitol v. Thomas, agreeing with the judge's recent decision that the $222,000 verdict won by the RIAA appears to be tainted by a 'manifest error of law.' The clear and well-written 14-page brief (PDF) argues that the 'making available' jury instruction, which the RIAA had requested and the judge ultimately accepted, was in fact a 'manifest error of law,' making the point, among others, that an interpretation of a statute should begin with the words of the statute. My only criticism of the brief is that it overstates the authorities relied on by the RIAA, citing cases which never decided the 'making available' issue as cases which had decided it in the RIAA's favor."
As it turns out, the MPAA, close ally to the RIAA, has come forth with a more controversial view. They suggest that proof of actual distribution shouldn't be required. From their brief (PDF): "Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances."
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RIAA Gets Nervous, Brings In Big Gun 423 comments
NewYorkCountryLawyer writes "I guess the RIAA is getting nervous about the ability of its 'national law firm' (in charge of bringing 'ex parte' motions, securing default judgments, and beating up grandmothers and children) to handle the oral argument scheduled to be heard on Monday, August 4th in Duluth, in Capitol v. Thomas. So, at the eleventh hour, it has brought in one of its 'Big Guns' from Washington, D.C., a lawyer who argues United States Supreme Court cases like MGM v. Grokster to handle the argument. This is the case where a $222,000 verdict was awarded for downloading 24 songs, but the judge ultimately realized that he had been misled by the RIAA in issuing his jury instructions, and indicated he's probably going to order a new trial. But, not to worry. A group of 10 copyright law professors from 10 different law schools and several other amici curiae (friends of the court) have filed briefs now, so it is highly unlikely the judge will allow himself to be misled again, no matter who the RIAA brings in as cannon fodder on Monday."
[+]
RIAA and BSA's Lawyers Taking Top Justice Posts 377 comments
An anonymous reader writes "Following the appointment of RIAA's champion Donald Verrilli as associate deputy attorney general, here's a complete roundup of all the RIAA and BSA-linked lawyers comfortably seated at top posts at the Department of Justice by the new government. Not strange, since US VP Joe Biden is well known for pushing the copyright warmongers' agenda in Washington. Just in case you don't know, Verrilli is the nice man who sued the pants off Jammie Thomas."
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Huh? (Score:5, Funny)
Re:Huh? (Score:4, Insightful)
Parent
Re:Huh? (Score:4, Funny)
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Re:Huh? (Score:5, Funny)
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Quite muddying the waters. (Score:5, Informative)
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Re:Huh? (Score:5, Insightful)
Just because I don't have the authorization to offer a song for download, doesn't mean that the person downloading it doesn't have permission to download it. And for the purposes of copyright infringement, the fact that the other party had permission would limit my liability to making available. Since no unauthorized copy was created. And likewise if you reverse the situation if I have permission to allow the uploads, and the person on the other end doesn't have the authority to download, it's still a non-starter.
Which is where the arguments get difficult to prove, in order to prove it's case the RIAA has to demonstrate that somebody who wasn't authorized to download the materials did so. And that furthermore the downloads were offered on purpose rather than by accident.
It would not be valid to claim that I've engaged in copyright infringement if somebody broke into my computer via a rootkit and placed things into a p2p share without my permission. Nor would it be permissible to hold me accountable if I weren't aware that somebody else had put things up for share without my knowledge. As long as I had engaged in the due diligence necessary for the scenario, it wouldn't be my liability.
Parent
Re:Huh? (Score:5, Insightful)
Basically we're looking at a rematch in the "making available" debate. The original verdict nailed the defendant to the wall for making tracks available for download. Now the judge is thinking that was based on incorrect instructions he gave the jury about how to understand the law.
For "upload to a p2p network", substitute "place on a shared drive readable/searchable/indexed by a p2p network".
I remain on the fence on this one. I don't believe that literally "just making available" should be illegal; I also don't believe that putting the track on a p2p share is "just making available" because of the implicit advertising of availability. I understand the argument that you can't have distributed if nobody downloaded, but I find it hard to believe that my liability should depend so absolutely on the actions of others.
Parent
Re:Huh? (Score:4, Insightful)
Consequently, if you make a poison and children find and drink it, is making the poison now somehow worse?
Food for thought...
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Re: (Score:3, Insightful)
Can't one just substitute "poison" with "guns", to which it's obvious that making a dangerous weapon != using dangerous weapon on technical terms.
All this "wrong" or "worse" talk is about feelings, of which should not be involved in facts. Just because you "feel" it's wrong to make poison does not mean it *is
Re:Huh? (Score:4, Interesting)
1. Reproduce - This one is long, see next paragraph.
2. Distribute - downloading is not distributing.
3. Performed - downloading is not performing.
4. Publicly display - downloading is not a public display.
5. Make into a derivative work - downloading is not making a derivative work.
So the only possibility is reproduction. To my knowledge, no law or court case has addressed this specifically so all we have is conjecture. It could be argued that the downloader made a copy. What I think would really be the case is that the downloader requested a copy, but it was the uploader who actually made the copy from his hard drive to his network card. The reason I make the distinction is precisely because copies for copyrighted works are made all the time on a single machine. When I play the Flobot's "Handlebars" a copy goes from my hard drive to memory and at some point has to go through the CPU. So we can't obviously count every single time a copy is made. If we did, then every router that it went through would be held liable for making a copy. So the downloader requests a copy, then the uploader makes a copy, and that is where copyright infringement has occurred.
It's kind of like a guy on the street with a DVD burner and a list of movies he has. He can advertise it all he wants without committing copyright infringement. Then someone comes up to him and asks for one of his movies. He puts a blank disk in the burner, burns the requested movie onto it, and then passes the disk to the requester. The guy on the street committed copyright infringement at the point that he burned the movie onto the disk (reproduced) and handed it to the requester (distributed), but at no point did the requester commit copyright infringement. In the same way, the downloader did not commit copyright infringement.
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Bad Analogy (Score:5, Insightful)
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Re:Bad Analogy (Score:5, Funny)
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Re: (Score:3, Funny)
Re:Huh? (Score:5, Insightful)
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Re:Huh? (Score:5, Funny)
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Re:Huh? (Score:4, Interesting)
The next logical extension if this case is allowed to stand is that you can be prosecuted for putting down a book you are reading in a public place and not taking adequate care to secure it.
Right. I don't see how such an act fails to meet the criteria for "making available".
William Patry (copyright expert and Google general copyright counsel) has a very nice post about the "making available" precedent here [blogspot.com].
Parent
Re:Huh? (Score:5, Insightful)
This is one of those times where someone else has to do something in order for what you do to be considered a crime. But advertising availability isn't copyright infringement. You infringe when you distribute. So if no one has downloaded, you haven't distributed, thus you haven't infringed copyright. It's a very dangerous thing to start saying that intent is enough to convict a person of a crime. Intent ought to be considered when a crime has occurred, but to outlaw intent itself sets very bad precedent.
Parent
Re:Huh? (Score:4, Informative)
In other words, you possess a collection of components which are all individually legal to possess, but
You don't have to express any intent to do so, you don't have to assemble anything. Just being in a position to do so makes you a criminal.
Parent
Re:Huh? Summary Judgment (Score:3, Informative)
Summary judgment is allowed if there is no genuine dispute over the material facts. Motions for summary judgment are often brought after discovery and before the trial. Many issues are often decided at summary judgment.
However, some pretty absurd disputes make it to trial. One might survive summary judgment on a claim that another wrongfully took your life...who says I'm alive? That's a question for a medical expert, and I'll produce one at trial who will say I'm not alive (at trial, you may not have such
Re: (Score:3, Informative)
Re: (Score:2, Funny)
Re:Huh? (Score:5, Informative)
Basically, they might have to do it all over again, because the judge told the jury the wrong test to apply to determine if she broke the law.
Parent
Re:Huh? (Score:5, Interesting)
I would add that:
the judge didn't just make an error. He made the error because Ms. Thomas's lawyer, who should have told the judge about the National Car Rental case, didn't, and because the RIAA's lawyers -- who had an obligation under the Code of Professional Responsibility to inform the judge about the National Car Rental case -- also didn't.
So I expect one angry judge on July 1st.
Interestingly the chief architect of the RIAA's legal behavior won't be able to be there July 1st, as that's the day he starts his new job [slashdot.org] as a state court judge in Colorado. So one of his clones will have to take the heat for this misconduct.
Parent
Re:Huh? (Score:5, Informative)
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Re:Huh? (Score:5, Insightful)
And yet citizens, who have even less expertise in law than lawyers and judges, are expected to obey the law and can be punished for not doing so.
What do you call a legislator at the bottom of the ocean? A good start!
Parent
This meme has to stop (Score:4, Interesting)
The basic citizen, with whom you seem to be so concerned, doesn't need to know the laws for reporting to the Securities and Exchange Commission. They don't need to know the laws about chemical pollution. If you get involved in specific activities, you're responsible for doing those activities in a manner consistent with the law. You don't need to retain information on the proper disposal of refrigerants, because most people will never deal with it at all, and most of those who do can simply follow the instructions. There's no persistent knowledge required.
There is no functioning legal system possible such that every person could ever understand the totality of law. It's a ludicrous idea, unless you're willing to throw out courts and jurisprudence altogether. People handle themselves just fine with a basic sense of right and wrong. Exceptions really are exceptions.
There is no single citizen actually responsible for knowing and obeying more than a tiny fraction of the law that a typical lawyer should have command of. People are socialized and raised to a sufficient degree of knowledge, most of which should be expected of a citizen without needing to be codified in law in the first place. Knowing how to be a decent person gets you nine-tenths of the way there. It's sadly a fading characteristic.
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Re: (Score:3, Interesting)
DVDs come with warnings and reservations. CDs, software, and books come with copyright notices. You never even need to read the Copyright Act to be responsible for knowing that you're not allowed to reproduce these works and distribute them to others. Socializing has imparted people with that basic knowledge, and what uses are allowed: commentary, quoting for criticism, mixed CDs, recording TV shows for later viewing. People are also widely aware
Re:Huh? (Score:4, Insightful)
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Re: (Score:3, Interesting)
And yes.
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Re:Huh? (Score:4, Informative)
- Offering it to be downloaded may not be "nice" but no laws are broken until somebody actually DOES download it. So said the 8th Circuit Court of Appeals - the appellate court above the one where this trial was held. This court within the 8th Circuit and must follow the decisions of law made above it. (The 8th Circuit, and the Supreme Court above that, are its "controlling authorities".)
- Unfortunately, neither the defendant nor the RIAA mentioned this to the judge and he didn't think of it himself. So he told the jury that (as the RIAA claims), "making available" is a crime. OOPS! The jury then convicted and asked for a BIG punishment.
- Since then he noticed (probably got a lot of letters about) the ruling. So when the defendant's attorneys filed a complaint that the punishment was too big and asking for the judge to reduce it, the judge said: "I goofed. Sorry. (But nobody mentioned this ruling from my boss court during the trial. Tisk, tisk.) And the law lets me fix that by ordering a new trial (where I'll be careful not to make this goof again). And the law lets me tell you that when I'm answering you about this other issue (which will just go away if we hold another trial.) So both sides send me your written thoughts about this by June 5 and we'll all get together and talk about it on July 1. Then I'll decide what to do. (Hint: If the defendant asks and the plaintiffs don't have a good argument why not, I'll order a new trial."
- The RIAA's methodology only shows that the content is available on the server, not that anybody downloaded it. So once there's a new trial they'll have to come up with evidence they didn't present at this one. (I think the judge might ask them if they have such evidence and give them an opportunity to just go away and let the defendant off if they don't, rather than scheduling another trial they can't win.)
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Re: Yup. (Score:4, Insightful)
And the 8th District Court of Appeals agrees with me, so while IANAL, I'm going to go with what they say.
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Translation (Score:3, Insightful)
Further Translation: A higher authority already had an established precedent which contradicts his instructions to the jury.
It appears this further backs the statement that simply "making available" isn't enough.
Legalse to English translation (Score:2, Informative)
WAIT!! (Score:5, Funny)
sigh...
I guess the courts getting a clue later is better than not at all...
Basically, it's like this: (Score:5, Informative)
Re:Basically, it's like this: (Score:5, Insightful)
This is really a beautiful moment for our democracy, to see a judge on his own realizing his mistake, and instead of just sitting on it, doing something about it. I have to say... this is a big man.
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Which takes guts (Score:5, Insightful)
Rather than just referring to him as "the judge in Capitol V Thomas", his name is "Judge Michael Davis." If anyone happens to know him, I'd say that it's about time to congratulate him for being man enough to step up and make this admission.
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Re:Basically, it's like this: (Score:4, Informative)
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Re:Basically, it's like this: (Score:5, Interesting)
You can never expect that human actions will be without error. Judges, & lawyers all make mistakes like the rest of us. What stands out about this is that he did something about it. His actions are remarkable, and I applaud him.
If everyone else held themselves to the same standard, we wouldn't have this BS in the courts.
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Does Media Sentry count? (Score:4, Interesting)
If MediaSentry downloads do not count as infringement, then the RIAA is pretty much screwed. It's going to be virtually impossible for the RIAA to prove distribution over the internet between independent parties. The only possibility I can think of is if they start getting trace data from ISPs showing P2P traffic.
Re: (Score:3, Insightful)
Well if MediaSentry is considered an agent of the RIAA who is a agent of the copyright holders, then no it does not count although IANAL so I don't know if this legal logic has been tested.
Re: (Score:3, Informative)
It'll be interesting, if there is a new trial where the RIAA has to prove distribution, whether the judge considers MediaSentry downloads to be proof of infringement.
I think you are missing a very important point. The first trial was a jury trial. Any subsequent trial will probably also be by jury. It matters a lot more what the jury thinks about MediaSentry's "evidence" than what the judge thinks. The original case was lost because the lawyers for the lady were incompetent. I'm sorry, but it's true. The jury reported that they were convinced that when the PC had "missing files" it was because the woman had the PC cleaned to get rid of incriminating evidence.
Just Another Reason I Ignore Judges Instructions (Score:4, Interesting)
Just don't get caught. Judges don't like us thinking for ourselves and will punish you for it. Funny, jury instructions were the result because they consider us too stupid to think for our selves. We're not educated enough about the law to decide right from wrong... What about when the populace becomes wiser than the system?
Like if you find the defendant possessed 'n' ounces of 'y' then you must find the defendant guilty of distributing 'n'. Err no... Judge, I will find the defendant guilty of distribution if you've proven to me he was selling it. All kinds of sites on jury nullification exist that argue the error of judges instructions.
I remember one jury I was on. We were instructed at lunch break we were not allow to visit the restaurant and intersection where the incident took place. Bullshit. Me and several others, the first thing we did was to have lunch at the McD's where it all happened and discovered the Police were lying in their testimony (go figure). Oh ya, we weren't allowed to talk about it between ourselves either and we ignored that too. Without these facts we probably would have convicted an innocent man. Screw judges instructions. I can make up my own mind whats right and wrong and don't need the judge thinking for me.
Remember, the RIAA lead lawyer is being promoted to State Judge... You really want to listen to what he thinks or decide for yourself right from wrong?
-[d]-
Re: (Score:3, Interesting)
Hear that? That sound like dominoes knocking one another over? With a huge pot of RIAA money precariously balanced on three dominoes at the edge of the table? YEAH, I heard it too
Very good news. Almost seems like Friday now.
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