Juror From RIAA Trial Speaks

Damon Tog notes a Wired blog posting featuring quotes from a juror who took part in the recent RIAA trial. Some excerpts: "She should have settled out of court for a few thousand dollars... Spoofing? We're thinking, "Oh my God, you got to be kidding."... She lied. There was no defense. Her defense sucked... I think she thought a jury from Duluth would be naive. We're not that stupid up here. I don't know what the f**k she was thinking, to tell you the truth."

Jury Instructions...

[Mongoose Disciple]

For what it's worth, I was recently picked to be on a jury in a (totally unrelated) criminal case, and the judge's instructions to us were very specific that it was our job as jury to decide what the facts of the case were, but that it was not our job to decide what the law said or whether the law was fair or not. I'd guess this jury received some similar instructions.

(I know that, historically, some juries have refused to find a defendant guilty when they thought the punishment excessive for the crime or didn't agree with the law. I'm just throwing this out there because I suspect it'll be relevant to some of the posts to follow.)

Re:Jury Instructions...

[Anonymous Coward]

I know that, historically, some juries have refused to find a defendant guilty when they thought the punishment excessive for the crime or didn't agree with the law.

For the record, this is called jury nullification [wikipedia.org] and is a traditional right of juries going back a very long time. For reasons which should be obvious, judges don't generally appreciate that right and will not make any mention of it. Juries will always be instructed on the law and that their role is to decide whether the law was broken, not whether the law is just, but a sufficiently independent-minded jury has every right to do what they believe is right rather than following these instructions.

Re:Jury Instructions...

[techno-vampire]

I know that, historically, some juries have refused to find a defendant guilty when they thought the punishment excessive for the crime or didn't agree with the law.

That's called "jury nullification" and judges hate it because there's not a damned thing they can do about it. In fact, attorneys are forbidden to mention the concept in their arguments. If the jury in this case had decided to do that, the RIAA would have had no grounds for appeal, because the jury is the *only* arbiter of fact. You can appeal decisions of the judge, but not the actual jury decision. IANAL and all that, but that's how I understand it.

Re:So did the jury ...

[lavalyn]

No, the jury's job is to determine if she broke the law, *and* determine if the law makes sense. There's this notion called Jury Nullification [wikipedia.org] that provides for juries to not convict despite violation of law.

Re:So did the jury ...

[dgatwood]

But in this case, as I understand things, there was a deliberate effort by the prosecution to mislead the judge and jury about the outcome of another critically relevant case in which it was decided that making available != distributing. Therefore, the finding of facts in this case may have been based on a fundamentally incorrect understanding of the law, and thus completely invalid.

Re:So did the jury ...

[MistaE]

Sorry, but Jury Nullification, while having deeply entrenched common law roots, is not as cut and dry as you may think it is. Many court cases, including some from notable power courts such as the Supreme Court of California have held that Jury Nullification is "contrary to [the court's] ideal of justice of equal justice for all and permits both the prosecution's case and the defendant's fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law." People v. Williams (2001) 25 Cal.4th 441, 463

Also, just from browsing the Wiki article you linked there are many examples of court cases in which Jury Nullification has either been criticized or not been held to be a viable option for juries. See U.S. v. Krzyske 836 F.2d 1013, 1021 (Upholding on appeal a judge's answer to a juror that jury nullification "didn't exist") and U.S. v. Thomas 116 F.3d 606 (2d Cir. 1997) (holding that jurors can be removed if there is evidence that they are planning on utilizing jury nullification)

Now, I'm in no way advocating the removal of the concept of jury nullification from our system, but I'm simply stating that to just throw out such a blanket action as the answer to this question doesn't help much because the action itself is under attack by significant powers in the legal realm. At least IMO, it seems like it would make much more sense to focus on electing a decent legislative body to reject these rules, rather than holding out for jury nullification that really only works as a one shot deal to begin with.

Re:So did the jury ...

[earthforce_1]

No, the jury is free to vote with its conscience. The juror's conscience is the final line of defense against an immoral and unjust law. The beginning of the end of Canada's old abortion laws came when juries repeatedly refused to convict a doctor of providing abortion services, which finally clued in the politicians to the fact that the winds of public opinion were turning against the law.

If you are on a jury and feel that the law was unjustly applied, nobody can stop you from putting your foot down and refusing to convict.

"But the evidence must be present"

[SpaceLifeForm]

Not according to the judge in this case.

Link [eff.org]

Jury Instruction #15: The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown.

Re:the fine didn't fit the crime

[the eric conspiracy]

Bankruptcy doesn't take your retirement savings or home unless you have used the home to secure a loan that you are in default on, and even then you can often work out a way to keep the home. You are also often allowed to keep a cheap car and tools that you need for your job. The idea is that the bankruptcy process should not leave you as a ward of the state, rather it is a way of keeping creditors off your back so you can repay at least some of the money.

That quote, that quote!

[philonoist]

Uh-oh... right there on the index page, you allowed the f-bomb to drop and detonate.

My employer had disallowed this site from my workplace because it was a forum, and I fought and appealed for about a month to show that /. was wayyy above the typical forum that slandered, flamed, and he-said-she-saided. That the quote was left intact without asterisks will endanger that status.

I'm against censorship as much as the next guy... but, please! Shift-8 after the letter "f" please!

Explanation

[magamiako1]

This case brings up more questions than it does answers, unfortunately. For one, it brings up long standing technical questions. First and foremost: Any computer security expert in the IT field knows not to trust IP addresses as a valid form of authentication. However, it is used in a lot of cases such as: Forum security, IRC security, and so forth. But this doesn't exclude the fact that when you accept a VPN connection you just don't automatically assume it's from who they say they are. So reasonably speaking in the IT field this is not a valid form of identification. We've built entire infrastructures around security and most of them aren't based on IP. However, on a fully controlled environment an IP address is a valid way to identify a person. That is, if you work as an IT administrator and you're seeing gay porn downloaded to a computer used by an executive, it's reasonable to assume that it's him who's doing it. The big question is: Should it have been let to slide because of this? True security experts know that you need more layers than just an IP address, but at the same time those of us who have used the internet for a long time can reasonably assume when a person is a person? In this case, it's unreasonable to assume that someone was "spoofing" her IP. She could have been part of a botnet, but this makes things more hairy. My solution to this: Release a bot to the internet that connections to p2p networks and distributes files. Make it a huge worm. Such cases like this could never go to trial and would grind the RIAA's arguments in the dust. Oh, and the reason why they were able to extort so much money--the RIAA approached it from a distribution end, not from a downloader end. If they approached it as saying she just "downloaded" the music, it's reasonable to assume the jury would have come up with a more realistic figure. But since it was approached from a standpoint that she was a distributor and not just a downloader, it becomes more expensive.

Re:Not the question of guilt, but of quantity

[tiananmen tank man]

She also had the hard drive wiped by the geek squad and they testified that it was due to a legit windows problem. The geek squad guy was also asked of the defendants music buying habbits at bestbuy. The defendant was a huge purchaser of music cds.

Re:We're not stupid up here

[Yartrebo]

Those stolen CDs would be legally authorized copies. While it would be petty theft (or whatever theft of $1,000 is) and selling stolen goods, it would be perfectly okay from a copyright perspective.

Would you consider Key Lay a counterfeiter because he stole money from people?

Re:the fine didn't fit the crime

[pla]

The jury had the option of fixing penalties at $750 per song. They opted for more than 10x that.

On that, I have to agree with you. Though I have to admit, it doesn't do much for my personal opinion of the naivete of Duluthites.



Says who?

Says anyone who understands why we have juries of our peers rather than juries of government-appointed experts, when the latter could incontrovertibly do a much better job of deciding the facts of the case.



Jury nullification, not the USSC or the presidential pardon, represents the final and most effective of the "checks and balances" on government abuse of power.

Re:So did the jury ...

[tomhudson]

You can name the guy. Dr. Henry Morgentaler [wikipedia.org]. Over and above the caes cited in the previous link, he was also tried 3 times for running abortion clinics, and 3 times, jurors refused to convict. This was around the same time that Jean-guy Trmblay tried to prevent his girlfriend (Chantale Daigle) from getting an abortion [wikipedia.org]. Turns out the creep was a control freak, and liked using his fists. Here's what happened 10 years later.

n 2000, Jean-Guy Tremblay was convicted of two counts of assault in the violent beating of his former girlfriend and her close friend which had taken place the year before in Calgary. He was sentenced to five years in prison plus a ten-year supervision order. Tremblay took his fight against the supervision order to the Supreme Court, but the Court decided against hearing his appeal in 2005. At the time it was revealed that he had been convicted of 14 attacks on women, most of whom were his former girlfriends.

Do I dare say "typical right-to-life control freak"? Well, maybe not typical, but certainly in retrospect his motivations had more to do with control and getting back at someone who had the "audacity" to dump the creep than with any concern for any potential offspring.

Re:the fine didn't fit the crime

[nsayer]

Damn, it's disturbing that we need to make this correction so often.

I think she was probably informed by the prosecution that she had broken the law. But I could be wrong.

You certainly are. You meant to say, "I think she was probably informed by the plaintiff that she had committed a tort.

civil case != criminal case.

Re:the fine didn't fit the crime

[Anonymous Coward]

You think someone should have to pay the RIAA over two hundred thousand dollars? You think she deserves that? I think you should probably kill yourself, because you're a piece of shit.

Re:"But the evidence must be present"

[PixelScuba]

Wasn't this the same instruction that had previously been overturned [slashdot.org] in another pending case... that the RIAA kindly forgot to mention to the court in this particular case?

Re:the fine didn't fit the crime

[Russ Nelson]

Even if you had a right to jury nullification (which you don't)

Actually, you do, and this is well established in English jurisprudence. William Penn was on trial for preaching Quakerism in the streets. The jury was instructed to convict because he was indeed preaching and it was indeed against the law. The jury refused to convict. The judge sent them back. They still refused. He threw them in jail. They still refused. He put them on bread and water rations. They still refused. Finally he gave up and accepted their acquittal. And ever since then juries have been able to vote according to their conscience rather than the law.

It's also equally well established that you can't tell people about it in the context of a court case (except during jury deliberations). Otherwise you would ALWAYS have lawyers attempting to get the jury to nullify.

How did the prove

[kilodelta]

a) That it was a different hard drive. Maybe the shared folder didn't exist on the drive she turned over? But wouldn't her assertion that she was spoofed have made any dent in the credibility of the so called expert witnesses presented by the RIAA?

b) There are enough loopholes that you could prove that she didn't have the monitored IP address since almost all broadband ISP's do two things. First your IP address cycles regularly. Second the logs only go back for so many days. So the proof is hard to come by.

c) The number of open wireless networks near me is astounding. Were I to share files I'd most definitely be using someone elses network and not mine. Therefore spoofing made easy.

Attorneys aren't the brightest bulbs to begin with. In RI Attorney Brian Cuynha cannot sue the foam manufacturers in re the Station Fire because he forgot to notify them that he was filing suit against them. There is an electronic filing system and he doesn't know how to use it.

And jurors, were I to be dragged into court on an RIAA charge I'd want a true jury of my peers. My peers being I.T. people who know the difference.

Re:We're not stupid up here

[Maxo-Texas]

Used to think this.

But after being picked twice now, I would say it depends on the case. I talked to the defense lawyers that picked me after the cases (not guilty) and they wanted a logical person. The other time, everyone ahead of me was clearly being disqualified is why it got to me.

Re:the fine didn't fit the crime

[Keeper Of Keys]

And the RIAA is working on adding another 2,000,000 to the list.

There, fixed that for ya.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:Distribution is irrellevant.

[bentcd]

Copyright governs copying, not distribution.

I'll start with giving you the benefit of the doubt: you may be living in a very exotic country.

For the rest of us, however, copyright legislation contains more than just the one word "copyright". For the most part, it contains numerous paragraphs with restrictions on copying, distributing and performing the work in question as well as many other restrictions around use of the work.

Re:alas no

[Mathinker]

> probability states that it would be worthwhile putting one of a thousand guns to your head,
> where only one was loaded, and pulling the trigger if the reward was a million dollers upon survival.

Uh, no. Probability and expectation theory only deals in uniform ideal units. Your example contains two different units: "death" and "dollar". You're confusing probability theory with utility [wikipedia.org] theory here. Or with a combination of probability and utility theory.

E.g., if the person pulling the trigger knows he is sick and most likely will die in great pain within several weeks, I wouldn't think it at all extraordinary for him to take this wager. In his case the utility of death vs. money is different than for others (you, for example, it seems).

And in the downloader's case, in many cases the downloaded product has a higher utility (e.g., no DRM) than the product he can attain legally. And what the relative utility of being sued by RIAA is for him is dependent on what he thinks, not what you think.

Re:the fine didn't fit the crime

[BLKMGK]

I'd point out that her hard drive was confirmed as damaged, Toast I think was the word used, by a Geek Squad employee. I'd also point out that this occurred PRIOR to her being informed that she was under any sort of investigation. To penalize her for this, as apparently occurred, seems wrong to me. The jurors comments about her benig stupid for not accepting a deal for a few K also appear to show some prejudice, I look at it as she could've gotten off cheap but fought instead which to me shows a tendency to believe that she might have been innocent not to think her stupid. Lastly, the woman was also an avid music purchaser according to her BestBuy purchase records. Someone who has the mentality to purchase that much music (hundreds of CDs was it?) was downloading and sharing freely? I wonder if that's really so likely. I find it interesting too that they claim to have some sort of fingerprint from her cable modem, what might that be? Surely not a MAC address unless it was provided by the cable company and I'd bet that their record keeping deserves a good looking over - particularly if they're a small one. I'd like to read over the transcripts of this, I'm not convinced, yet, that it's really so cut and dry based on at least some of the evidence quoted in a previous /. story.

Most damning IMO was the userID etc. that was being used. Certainly if anything this would seem to teach that it's best to use someone ELSE'S handle when using a service like Kazaa

Re:the fine didn't fit the crime

[Viv]

A right is something granted to you by some entity. Nowhere are you given explicit permission to nullify the law.

And that, my friend, is the beauty of the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

In the USA, at least, the lack of enumeration of a right does not imply that the right is non-existant.

If you go back and read some history, you'll find that a goodly chunk of the first Americans thought jury nullification is a right. I could quote a bunch of famous people, or give you the long history of Bushel's case, Zenger's case. I encourage you to educate yourself and look at both cases, in which jury nullification was upheld as a juror's right in the English common law (which, by the way, where do you think the rights protected by the 9th Amendment are most likely to spring from?).

No, I will quote only one authority:

"It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision... you [juries] have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy"

-- John Jay, First Chief Justice of the United States Supreme Court, State Of Georgia v. Brailsford, 3 U.S. 1,4 (1794).

Re:alas no

[1u3hr]

I expect a bittorrent user to be hauled over the coals in the near future.

Happened in Hong Kong a couple of years ago. http://news.bbc.co.uk/1/hi/technology/4374222.stm [bbc.co.uk] The uploader actually went to jail.

Re:the fine didn't fit the crime

[terrymr]

Then she can file bankruptcy - all of that is protected.

"Debts arising from copyright infringement judgments are generally dischargeable
in personal bankruptcy proceedings unless the creditor (i.e., the copyright owner) can
prove that the judgment constitutes a debt for a "willful and malicious injury" within the
meaning of 11 U.S.C. 523(a)(6). Moreover, because the legal standards for "willful and
malicious injury" differ from those governing "willful infringement" under the Copyright
Act, even a willful infringement judgment may be dischargeable in bankruptcy"

See : http://www.eff.org/IP/P2P/RIAA_v_ThePeople/P2P_bktcy_memo.pdf [eff.org] for the complete argument.