RIAA Conceals Overturned Case

NewYorkCountryLawyer writes "When a Judge agreed with the RIAA's claim that 'making available' was actionable under the Copyright Act, in Atlantic v. Howell, the RIAA was quick to bring this 'authority' to the attention of the judges in Elektra v. Barker and Warner v. Cassin. Those judges were considering the same issue. When the that decision was overturned successfully, however, they were not so quick to inform those same judges of this new development. When the defendants' lawyers found out — a week after the RIAA's lawyers learned of it — they had to notify the judges themselves . At this moment we can only speculate as to what legal authorities they cited to the judge in Duluth, Minnesota, to get him to instruct the jurors that just 'making available' was good enough."

Re:MY GOD!

[Romancer]

Might even be more than professional responsibility. Isn't there some kind of LAW for this sort of thing? Like presenting false evidence or fraud?

Presenting the evidence in the first place sounds fine but when they learned that the case was overturned, shouldn't they be required by law to inform the court that the evidence they submitted had been negated.

To me it sounds like submitting matched DNA evidence at the beginning of a trial and then learning that it was actually inconclusive halfway through the trial and not informing the defence. Isn't that illegal?

Re:MY GOD!

[hedwards]

They also have a duty to not have experts that perjure themselves to advance a case. As well as not basing entire cases on speculation. And making some effort to allow for the subpoenas to be challenged before they are formal court orders.

While the definition of perjury seems in recent years to have slid somewhat, claiming to be an expert in order to pass off misleading information as fact. Especially when it is used to manufacture evidence which shouldn't be admissible in court to prop up a poorly thought out case.

Ethics thus far have not been of any real concern to the RIAA, so I can only imagine why they would want to start behaving at this juncture having already gotten away with far more than is common. Seems to me that if they haven't been worried about being disbarred for their less than professional behavior up until now that this won't be the tipping point.

How does this affect closed cases

[phorm]

Is there an allowance to get a case overturned/re-tried if there's evidence that the plaintiff did not fulfill their duty to the court (and the law)? It seems to me that if the RIAA lawyers were citing cases that were later overturned, and that this was the basis for the precedent that "making available" was valid as a form of distribution (and thus a key-point to the case), then it seems that the case may have very well gone the other way if the hadn't "cheated"

Is there a transcript of Capitol v. Thomas online?

[Anonymous Coward]

I followed the case through the press (and your blog [blogspot.com]) and was curious whether the actual trial was available somewhere, for pay or for free. I'd like to get an idea of what the jury saw -- I guess while I thought it was a bit of a crap shoot whether they'd find her liable or not from the coverage in the press, I'm astonished at the size of the award and wonder just what happened in there.

I wish you better luck with your case, and thank you for keeping an online library on the matter. At some point it'd be nice to see more people aware of the fact that this is not simply about piracy but also about setting a reasonable standard of proof for any activity one might be (possibly wrongly) accused of on the Internet. Or concerned about the idea that maybe a law that can financially ruin a family over a handful (or a couple thousand, or even two) songs is ethically wrong. I know I'd be less frustrated if a particular jury happened to think along these lines, or put themselves in the position mentally of having one of their kids download enough to bankrupt the family without their knowledge, but I suppose they might have been overloaded by the technical nature of the subject and claims of billions of dollars of losses due to piracy, etc.

Here's a tip...don't take the stand

[mshurpik]

Let's take a look at the case:

http://arstechnica.com/news.ars/post/20071003-judge-bars-riaa-president-from-testifying-in-capitol-records-v-thomas.html [arstechnica.com]

This afternoon also marked the appearance of Jammie Thomas [defendant] on the stand. She was called by the plaintiffs immediately after lunch, who started by questioning her about her experience with computers.

NEVER let the defendant testify, especially in first trial! Or is this a civil case where you have no 5th amendment rights? Anyway...

The questioning then turned to her CD-ripping habits. In her deposition, Thomas said that she ripped no more than six or seven CDs per day, but on the stand today, she said she could have ripped over 2,000 songs in a little over two days.

Wow. Then,

She originally had said that she bought the PC from Best Buy in 2003 and that the hard drive was replaced in January or February of 2004. After her forensic expert inspected the hard drive and found that it wasn't manufactured until January 2005, she then said that she bought the PC in 2004 and that the hard drive was replaced in March 2005. "I was a year off on everything in my deposition," she said.

Lying on the stand isn't good either.

Finally,

"He also said that the 'jury could do the math' on whether it was possible for her to rip 2,000 or so tracks over a two-day period given the demonstration earlier in the day."

Well, I'm a bit surprised too...but...this is the best defense?

Silly me, I thought the RIAA spoofed her computer and faked the whole thing.

Re:MY GOD!

[queequeg1]

Most likely not in this instance. We're talking about legal theory, not evidence. It is a violation of any number of rules of professional conduct and statutes to withhold evidence.

In this particular situation, the local ethics rules would determine how close to the line the RIAA came. Citing cases that an attorney knows have been overturned is generally a no-no. It would not per se result in a loss for that attorneys side (it is really just an ethical breach). However, it would cast a huge shadow over the attorney's argument. In this case, it sounds like the case was not overturned when the RIAA cited it (I could be wrong because, of course, I haven't read the actual article). Even if they didn't actually cross the line, many judges would fly off the handle if a party cited a case of particular importance for a keystone point and failed to alert them that it had been overturned if the citing party knew it had been overturned (such as if the citing party were a party to the overturned case).

Re:How does this affect closed cases

[NewYorkCountryLawyer]

I think you will see a lot of people coming to her aid at this point.