Judge in Capitol v. Thomas Considers New Trial

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.

Huh?

[EMeta]

Sorry, I got lost in the legalese there. Someone want to help?

Re:Huh?

[kellyb9]

It sounds like they are saying simply uploading music to a P2P network is not illegal until someone downloads it.

Re:Huh?

[kennygraham]

When GP said "uploading" he meant "making available for download". Stop being a pedantic retard.

Re:Huh?

[Sloppy]

Stop being a pedantic retard.

But I thought we were talking about laws.

Quite muddying the waters.

[spun]

No, you quite being an idiot who didn't RTFA. MediaSentry searched for certain files without downloading them. Sorry, but it is you and the GP who are both imprecise slackers who couldn't be bothered to read the article and posted without knowing what you were talking about.

Re:Huh?

[hedwards]

Doesn't matter, mediasentry has authorization from the RIAA labels to download the files in certain instances. Additionally, they admitted in a recent article that they don't know when/if anybody has downloaded the files ever. Ignoring that they don't have a license to conduct investigations in most states anyways.

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.

Re:Huh?

[mea37]

Well, don't expect the terminology to always be technically correct.

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.

Re:Huh?

[BobMcD]

If you make a poison that is never actually imbibed, was it still wrong to make the poison?

Consequently, if you make a poison and children find and drink it, is making the poison now somehow worse?

Food for thought...

Re:

[mr_mischief]

Are we talking about poison that's specific to humans and specifically meant to be ingested as a poison, or are you including poisons meant as pesticides and useful household and industrial chemicals which also happen to be poisonous?

Lye, ammonia, hydrogen peroxide, bleach, ant spray, toilet cleaner, oven cleaner, paint thinner, benzene, and lots of other things are poisons that we typically use in small amounts with proper precautions, but which can be deadly in sufficient amounts.

Re:

[BobMcD]

I briefly considered being that explicit about the analogy, but I assumed I'd be insulting the intelligence of my reader. Thank you for proving me wrong...

Please replace 'poison' for 'human-poison'. Or perhaps 'homosapien-icide'? Whatever the word you want to use, I'm attempting to illustrate the link between intent and actual result.

Re:

[Anonymous Coward]

If you make a poison that is never actually imbibed, was it still wrong to make the poison? Consequently, if you make a poison and children find and drink it, is making the poison now somehow worse?

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?

[Chosen Reject]

All this "wrong" or "worse" talk is about feelings, of which should not be involved in facts.

Yes, let's keep it to facts.

What is copyright infringement? [copyright.gov]
As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

From this we can infer that there are 5 ways to infringe copyright
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.

Re:

[Shagg]

However, it should be "illegal" to "take" (copy) said files... The RIAA are suing those who simply put their files in the public space instead of going after those who "take" said files via copying.

Copyright law restricts distribution rights, it does not apply to someone who is receiving a copyrighted work. In the P2P world, it's the sharer who is committing copyright infringement.

...the same it would be illegal to take someone's car who's parked it on the public street.

Now you're confusing physical theft

Re:

[ConsumerOfMany]

If I shoot a bullet at a tree for fun, is it wrong. If someone happens to walk in front of the bullet and dies is it worse. Um yes.

Re:

[NotBornYesterday]

Not to be overly pedantic, but how is shooting a tree wrong?

Bad Analogy

[spun]

Here's a better one: Someone sees a jar labeled poison on your windowsill and turns you in to the Poison Industry of America, who file suit against you for having poison, which their clients have a patent on. However, all you had was a jar labeled poison, and no one actually proved that it contained anything but water, let alone the PIA patented poison.

Re:Bad Analogy

[j00r0m4nc3r]

But if you had a CD labeled "Poison" you should definitely be punished.

Re:

[spun]

Have you got a liquid observers license in her state? No? Then you lose. Only people licensed to observe liquids can testify in court, sorry. Wait, what the hell were we talking about? See, I knew I should have used a car analogy. This poison analogy is just too confusing.

Re:

[geekoid]

Making poison isn't wrong.
If children eat rat poison, was the manufacture wrong to make rat poison?

Re:Huh?

[m0nkyman]

If you put poisoned candy on your front porch, you don't get charged with negligent homicide unless a kid eats it. The actions of others do affect your liability.

Re:Huh?

[Corf]

Little punks should've stayed off my damn lawn. That'll larn 'em.

Re:

[lucas_picador]

Just so. Every first-year law student learns on the first day of Torts class that a tort offense (a category that includes copyright infringement) has four elements, all of which must be proved in order to collect a remedy from the defendant:

1. The defendant must have had a DUTY to the defendant (such as a duty to respect the copyrights of the plaintiff).

2. The defendant must be guilty of a BREACH of that duty (e.g., by participating in the unauthorized copying or distribution of a work under copyright)

Re:

[pthisis]

1. The defendant must have had a DUTY to the defendant (such as a duty to respect the copyrights of the plaintiff).
2. The defendant must be guilty of a BREACH of that duty (e.g., by participating in the unauthorized copying or distribution of a work under copyright).
3. CAUSATION: the breach must have been the proximate cause of some infringement of the plaintiff's rights.
4. The plaintiff must have suffered DAMAGES as a result. In civil law, the rule is: no harm, no foul.

Now, in some cases of copyright infri

Re:

[PhilipPeake]

Exactly.

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.

Re:Huh?

[lucas_picador]

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].

Re:

[mea37]

But you can get charged (probably with reckless something-or-other). Your liability is affected by others' actions, but your liability is not absolutely determined by others' actions (whcih is what I actually said; but don't let that get in the way of a clever reply).

Moreover, since the real crime (taking a risk with others' well-being that was not yours to take) is the same, I maintain that the difference in liability is largely an emotional reaction of our legal system, proving that to some people crimin

Re:

[Relic of the Future]

Bingo!

Yes, "making available" might be illegal (not sure under what law; there's no "reckless endagerment" equivilent for copyright), but it's not unlawful copyright distribution unless there's a distribution.

negligent homicide:reckless endangerment::felony copyright distribution:?

Re:Huh?

[Chosen Reject]

I find it hard to believe that my liability should depend so absolutely on the actions of others.

But in this case, no crime has occurred unless and until someone downloads. Why should you be held liable for copyright infringement if you never distributed a copyrighted work? Until someone downloads the copyrighted work, you haven't distributed it, thus no infringement has occurred.

This is one of those times where someone else has to do something in order for what you do to be considered a crime.

I also don't believe that putting the track on a p2p share is "just making available" because of the implicit advertising of availability.

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.

Re:

[rthille]

Interesting, what if I put a print of a photograph that I purchased from famous artist in my front window and people photographed it.

Would I be guilty of infringement?

My property is the one emitting the photons, the photographer is 'just' the one collecting them. In the case of a fileserver (p2p or otherwise), the other party has to request the packets...

Who's more guilty, me with the print of the photograph that I don't own reproduction rights to, or the person with their fileshare exposed to the internet

Re:

[Em Adespoton]

Ahah... you've added another ingredient... reproduction rights.

Actually, it is perfectly legal to reproduce photographs that you don't have reproduction rights for; it is, however, illegal to make them available for public viewing (such as putting them in your front window).

By putting something in your front window, you are violating the "public performance of a copyrighted work" law. The equivalent with music would be playing the music out your window so that others could record it.

What is happening with

Re:

[Mister Whirly]

Names of bands are protected by trademarks, not copyrights. And you can trademark a band name (and/or logo), on a state and federal level. (I manage bands and have done this many times before in the past.) If you trademark a band name, and somebody else uses the same band name, you have a legal right to ask them to cease and desist using said name.

Re:

[Mister Whirly]

I was merely trying to point out that band names have nothing at all to do with copyrights, which is what this case is about. Not sure why band names entered the discussion on copyright violation.

Re:

[monxrtr]

What if I hang a painting in my restaurant? What if I put a statue in my corporate lobby? What about tourists who take photographs of statues and buildings?

Can sculptors file a lawsuit for unequal treatment under the law, for discriminatory protection for different types of USEFUL arts, such as the different protections afforded musicians and sculptors? Or can an artist who creates a statue which is placed in a public park place a camera on or in the statue and sue everyone who looks at the statue for copyr

Re:

[yuna49]

You've asked a lot of questions, most of which have, I believe, fairly straightforward answers.

Whether hanging a painting in a restaurant constitutes a "public performance" probably depends on the relationship between the artist and the restaurant owner. If the artist sells the work to the restaurant, title is transferred to the restaurant owner who can do with the work as she pleases. If the painting is leased or loaned to the restaurant by the artist, then the disposition of the painting needs to be cov

Re:

[rthille]

So, it's in my front room, and visible from the street, but not 'publicly displayed' (I guess we could argue about that in court...). Then what?

Re:Huh?

[PhilipPeake]

Unfortunately, that precedent already exists. If you have the components available to create a short barreled rifle, which requires the payment of a $200 tax, the BATFE can (and will) prosecute you for "constructive intent".

In other words, you possess a collection of components which are all individually legal to possess, but .gov can argue that because it is possible to construct something illegal, you intend to do so, and therefore you are guilty of a felony (not paying the $200 tax).

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.

Distribution doesn't actually need to take place:

[geekoid]

"(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution."

http://www.copyright.gov/title17/92chap5.html [copyright.gov]

so just uploading to a publicly accessible computer is infringement.

Re:

[pimpimpim]

If you leave your door open, you are liable to getting your house robbed and getting no insurance refund for it. However, it could also just happen that you came back and everything was still there. That's how your liability depends on the actions of others.

Re:

[Fast Thick Pants]

all the possibilities, including worm-holes.

A train-carrying ship or zeppelin would be a safer bet.

Re:Huh? Summary Judgment

[Christoph]

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:

[Chris Burke]

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.

I thought that it was also the case that a motion for summary judgment could be granted when the facts were in dispute, but even if you consider the facts under dispute in the way most favorable to the one defending against the motion, they would still lose as a matter of law.

E.g. I'm suing y

Re:

[GryMor]

IANAL The key is 'material facts' in dispute. If a fact, in all it's possible permutations (in your example, signed, signed under duress, contract of adhesion, didn't sign, etc.), doesn't impact the law of the case (the contract's terms are illegal), then it isn't actually material, even if it's disputed.

Re:

[Anonymous Coward]

Some of the details are unclear to me, but I'm pretty sure the judge simultaneously ordered a new trial and made gay marriage legal in California.

Re:

[Drathos]

Um.. Not sure where you heard that gay marriage is legal in all 50 states, but a couple years ago, Virginians passed a state constitutional ammendment banning same-sex marriages and civil unions. At the time, there were at least 20 other states with similar bans already passed or coming up to vote.

Re:

[moderatorrater]

His point is that a gay man can get married, he just has to get married to a woman.

Re:

[mrchaotica]

Don't play stupid; "gay marriage" doesn't mean "marriage between a man and a woman where one or both is homosexual," it means "marriage between people of the same gender."

Re:

[sm62704]

I wish more men were gay; actually I wish that all other men except me were gay. Then I could have their women.

A gay man isn't going to hit on your woman. I have no idea why so many guys don't like gays, unless they're going to the bars where men hit on them instead of their women.

Re:

[spun]

WRONG. There are at least 20 states where it is illegal for gays to marry. California is one of them, thus why the big case trying to overturn that law. Get your facts straight.

Reading comprehension: you fail it SO badly. To restate the GP for the mentally challenged: gays can marry. They do it all the time. They can even marry other gays, as long as it is (for instance) a gay man marrying a gay woman.

Re:

[plague3106]

People in hell want ice water

Hell is being forced to live in a world of morons like you.

and the little girls all want ponies. I want to go to bed with a supermodel, but just because I want something has no relevance in the real world.

So are you suggesting that it be made illegal for girls to have ponies or for you to sleep with a supermodel, just because the former may or may not happen, and certainly the latter will not?

IMO what you do in private is none of my damned business. I don't care if you're hiring

Re:

[oyenstikker]

This is not quite an issue of what people are doing in private. Anybody is free to make up their own ceremony and apply some words to what they did. This is an issue of the government doing paperwork and recognizing a legal arrangements which has far reaching consequences, affecting other people (e.g. employers).

"Either let any human being marry any other human being." Can an adult marry an infant? Can siblings marry?

"do away with the concept of legal marriages completely." A fine idea. Many of those agains

Re:Huh?

[Mr. Beatdown]

The judge is saying that he may have made an error in his instructions to the jury. He told them that making available = distribution. The 8th circuit court had already ruled that distribution is required for infringement, and there is a growing consensus that making available does not equal distribution.

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.

Re:Huh?

[NewYorkCountryLawyer]

The judge is saying that he may have made an error in his instructions to the jury. He told them that making available = distribution. The 8th circuit court had already ruled that distribution is required for infringement, and there is a growing consensus that making available does not equal distribution. 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.

Everything you said is correct.

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.

Re:

[Evets]

Mr. Beckerman -

You were watching this trial. Wasn't there an argument just at the end of the trial where the Defendant said "There's this case here that you should follow" and the Plaintiff's lawyer said "I argued that case. That was an entirely different argument altogether and doesn't apply here."

Maybe it was a different case being cited, but I could swear that the argument happened. I seem to remember being surprised that the Defendant's lawyer didn't respond with arguments as to why the case was appl

Re:

[NewYorkCountryLawyer]

Mr. Beckerman - You were watching this trial. Wasn't there an argument just at the end of the trial where the Defendant said "There's this case here that you should follow" and the Plaintiff's lawyer said "I argued that case. That was an entirely different argument altogether and doesn't apply here." Maybe it was a different case being cited, but I could swear that the argument happened. I seem to remember being surprised that the Defendant's lawyer didn't respond with arguments as to why the case was applicable.

Without a transcript I can't say, but I am inclined to think that Judge Davis didn't make it up when he said that neither counsel brought it to his attention.

Re:

[Evets]

I finally found a reference and it was UMG v. Lindor that they discussed. From ARS Technica:

There was a conference this morning to go over the proposed jury instructions. Judge Davis began moving through them sequentially until he got to number 14. "Let's skip number 14 for now, because I think we're going to spend some time on that one," he said. After some minor tweaks to the other instructions, the parties returned to the instruction at issue.

Gabriel cited Perfect 10 v. Amazon.com and the original Napst

Re:

[NewYorkCountryLawyer]

It is astonishing that Ms. Thomas's lawyer did not cite the case, because he definitely knew about it. And in view of his not having cited it, it was a violation of the ABA Rules of Professional Conduct for Mr. Gabriel to have failed to call it to the court's attention. See ZDNet article [zdnet.com].

Re:

[mrchaotica]

Will that violation of ABA Rules have any repercussions either on the new trial or for Mr. Gabriel personally?

Re:

[NewYorkCountryLawyer]

Will that violation of ABA Rules have any repercussions either on the new trial or for Mr. Gabriel personally?

As to the case itself, it could, if the Judge were to dismiss the case as a Rule 11 sanction. As to Mr. Gabriel personally, most definitely.

Re:

[CorSci81]

Is there any chance Mr. Gabriel could face some form of punishment for a breach of ethics in this case? And if so, would it potentially affect his pending judicial career? If the answers are yes it would be a nice bit of karma.

Re:

[NewYorkCountryLawyer]

Is there any chance Mr. Gabriel could face some form of punishment for a breach of ethics in this case? And if so, would it potentially affect his pending judicial career?

Yes.

And yes.

Re:

[DingerX]

Saw this on your blog, and I was stunned. For you, this has gotta be intellectual adrenaline.

After granting the instruction 15 change insisted upon by Mr. Gabriel, and after Wired reported on the recommendation given by Ms. Thomas' attorney, it took courage for Judge Davis to make such a motion sua sponte.

My question now is: after the battle is truly joined, and the RIAA have cited Capitol v. Thomas in numerous stages of contested cases and in what some have claimed are improperly joined dragnet cases mea

Re:

[NewYorkCountryLawyer]

My question now is: after the battle is truly joined, and the RIAA have cited Capitol v. Thomas in numerous stages of contested cases and in what some have claimed are improperly joined dragnet cases meant to shake down and terrortize the general public, how do they deal with their star case turning into a turd?

I guess they'll do what they always do. Pretend it doesn't exist. And then if the judge or their opponent finds out about it, they'll lie.

Re:Huh?

[NewYorkCountryLawyer]

So its the lawyer's fault that the judge didn't know about that particular case?

Yes. We are in an adversary system. No lawyer and no judge knows all of the law. It's far too vast. Judges rely upon the lawyers to do their homework, to hone in on the issues that are involved in any particular case, and to focus the judge on what is relevant. Which is why it was so important for Ms. Thomas's lawyer to to represent his client "zealously". And why an opposing lawyer is REQUIRED BY LAW to disclose to the judge "controlling contrary authority". (No lawyer likes to do that last thing.... disclose controlling contrary authority... but it is an important and a binding rule which was designed to avoid just the type of embarrassment that has been caused here.)

Re:

[rrohbeck]

We are in an adversary system. No lawyer and no judge knows all of the law. It's far too vast.

So, why isn't there a data base with a search engine?

Just wondering. I am aware that it's probably mostly on paper, but lots of old books (heck, pulp and pr0n) are being scanned in - law seems a bit more important to me.

Wouldn't it make a lot of sense to make emailing (scanning/OCR'ing) all docs the SOP of the courts, instead of printing and faxing them? Then it would be easy to stuff everything into local/state/federal archives and running an index.

Re:Huh?

[immcintosh]

There is [lexis.com] (Westlaw too). The problem is what to search for, considering the complexity of trials. Also, electronic filing is available in most jurisdictions these days, but is not mandatory, nor should it be. Really, this just looks like a case of the defense not doing their homework and the prosecution being dishonest.

Re:Huh?

[Sloppy]

No lawyer and no judge knows all of the law. It's far too vast.

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!

This meme has to stop

[mr_matticus]

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.

No one citizen is responsible for knowing even a fraction of the law. The vast majority of law doesn't apply to the vast majority of people.

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.

Re:

[mr_matticus]

No. The totality of Title 17 is not necessary knowledge.

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:

[jd]

Well, apparently so did the judge, so you're in good company.

Re:

[UnknowingFool]

In the original instructions to the jury, the instructions said that the jury could determine that if the defendant made the copyrighted works available for download, that could be copyright infringement. However as others have pointed out to the court, the controlling decision (or standard) for copyright infringement is National Car Rental v Computer Associates where the Eight Court ruled that there had to be actual dissemination (or transfer) of copyrighted works. Making something available is not enoug

Re:

[The Ultimate Fartkno]

> However, all you listen to Kimya Dawson, so nobody has downloaded anything yet.

So you watched "Juno" too, huh?

Re:

[InvisblePinkUnicorn]

Yes... For me, it was as if millions of wizards cried out in terror and were suddenly silenced.

Re:Huh?

[Ungrounded Lightning]

In particular:

  - 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.)

Nope

[geekoid]

" - Offering it to be downloaded may not be "nice" but no laws are broken until somebody actually DOES download it. "
nope:

(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

http://www.copyright.gov/title17/92chap5.html [copyright.gov]

Bolded by me.

Re: Yup.

[Chris Burke]

(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public,

Uh, that comma is not an "or". It means that distribution of a work by making it available on a computer network is a crime. Yet until distribution has actually occurred, then the terms of that clause are not satisfied. "Making it available on a computer network" is by itself not sufficient. The "distribution" part is not optional.

And the 8th District Court of Appeals agrees with me, so while IANAL, I'm going to go with what they say.

Translation

[Atomm]

Oops, I messed up.

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.

Re:

[Brett Buck]

It doesn't "further back" the higher-court ruling, the judge is merely pointing out that he/she made a mistake by not applying the higher-court ruling. A lower court can't add weight to a higher court precedent by merely citing it.

        Brett

Legalse to English translation

[mrbah]

The judge didn't take a higher court's ruling on what constitutes infringement into account when giving instructions to the jury.

WAIT!!

[whisper_jeff]

Wait a second! You mean that for violation of distribution rights to actually happen, copies have to be distributed?? I wish somebody had said something sooner!!

sigh...

I guess the courts getting a clue later is better than not at all...

Basically, it's like this:

[parliboy]

You know that Jammie Thomas lady that was ordered to pay out $222,000? Turns out that the judge is concerned it isn't likely to survive appeal because he gave the jury bad instruction. Basically, he said that the plaintiffs don't have to prove that actual distribution takes place; just the fact that the files were in a distributable folder is enough. And she lost. Badly. But now, Jammie's lawyers have come up with prior law that basically says, "What you talkin' 'about, Judge?" Not just weird fringe stuff, but pretty firm law that has withstood some trials already.

Re:Basically, it's like this:

[NewYorkCountryLawyer]

But now, Jammie's lawyers have come up with prior law that basically says, "What you talkin' 'about, Judge?"

Not so. The judge came to the realization on his own. He got no help from any of the lawyers, even Ms. Thomas's lawyer.

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.

Re:

[Shagg]

Not so. The judge came to the realization on his own. He got no help from any of the lawyers, even Ms. Thomas's lawyer.

You'd think that Ms. Thomas's lawyer would be jumping up and down trying to tell this to the judge. If there is a new trial, does she have to keep the same lawyer?

Which takes guts

[phorm]

It's not just democracy, but this judge deserve real kudos for having the backbone to admit his error. Too often we here of those in power who realize they have made a mistake, and cover it up in lies or denial (often making worse mistakes in the process).

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.

Re:

[Trailer Trash]

I have to say... this is a big man.

Like, tall, fat, or both?

Re:

[homer_s]

, to see a judge on his own realizing his mistake, and instead of just sitting on it, doing something about it.

He realized that his mistake ruined a person's life and now he has magnanimously given the person another chance.
Is the standard to which judges are held? That is sad.

Re:Basically, it's like this:

[NotBornYesterday]

He realized that his mistake may have improperly influenced the outcome and now he has magnanimously given the person another chance even though it would have been easier for him to ignore it.

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.

Re:

[__aailob1448]

I agree with the parent. Give credit where credit is due, and this judge did well. Good judge! Good judge! /gives judge a seat on the supreme court.

Re:Basically, it's like this:

[CodeBuster]

It wasn't entirely the fault of the judge. As NYCL has already said, the defense attorney failed in his duty to his client, Mr. Thomas, by not mentioning the precedent and the RIAA attorneys failed in their professional responsibility as officers of the court in not mentioning it to the judge, even though it might have damaged their "making available equals distribution" argument. Apparently, although IANAL, it the responsibility of the lawyers to present precedents, whether positive or negative, that have bearing upon the essential matters currently at hand in any particular case.

Does Media Sentry count?

[Shagg]

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 guess technically it is, but that also raises the question of whether or not the amount of downloads has any bearing on the size of the penalty/fine. If MediaSentry can download from you to show infringement, can they do it 1000 times in order to try and increase the fine? I would hope the answer is "No", but what would the court say?

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:

[UnknowingFool]

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.

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:

[Shagg]

Well if MediaSentry is considered an agent of the RIAA who is a agent of the copyright holders, then no it does not count

I've seen that logic before, but is it true? The P2P user is not authorized to distribute the file, regardless of whether or not the downloader is another P2P user or an agent of the RIAA. Isn't that correct? Otherwise I guess you're saying that the RIAA implicitly gives you a distribution license if they download the song from you.

What I think people get confused by is that if the P2P

Re:

[Zontar_Thing_From_Ve]

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.

Re:

[slimjim8094]

IANAL, but I play one from my armchair.

I'd say that, as they are being paid by RIAA for this explicit purpose, they are being paid by the copyright holder to violate copyright.

I'd say that makes MediaSentry an authorized agent of the RIAA and labels, and de facto can not infringe.

Of course, they (MediaSentry) could pay some guy to download files and send IP's to them - but that makes Joe here an agent to the agent, and (probably) can't violate copyright either.

So trace data (which will be encrypted, probabl

Just Another Reason I Ignore Judges Instructions

[DeanFox]

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:

[zappepcs]

For FSM's sake, I hope the work is ending.... !!!!

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.

Re:

[hax0r_this]

From Wikipedia:

amicus curiæ (plural amici curiae) is a legal Latin phrase, literally translated as "friend of the court"

Re:

[jav1231]

Is the friend obligated to please the court?

Re:

[belg4mit]

Umm yeah, my post clearly indicated that they were equivalent. The question is why the summary did not include the
common phrase amicus brief. Even for the uninformed it should not be hard to figure out given the similarity to amicable.

Re:

[compro01]

It's slightly clearer to those who don't understand Latin, though most people would still have to look it up.

Re:

[compro01]

uploading is still illegal, but they have to prove that the music was actually uploaded. just finding the music in a share folder proves nothing. so, in essence, your 3rd option.