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RIAA's Request For Appeal Denied In Thomas Case 197

Posted by timothy
from the seeking-one-mulligan-too-many dept.
NewYorkCountryLawyer writes "The RIAA's request for permission to appeal from the decision setting aside its $222,000 jury verdict has been denied by District Court Judge Michael J. Davis. In a brief, 6-page decision (PDF) the Judge dismissed the RIAA's arguments that there is a 'substantial ground for a difference of opinion' on the question of law presented, whether the Judge had erred in accepting the RIAA's proposed jury instruction that merely 'making files available' could constitute an infringement of the plaintiffs' distribution rights. He likewise dismissed their argument that granting permission for the appeal would 'materially advance the ultimate termination of the litigation,' since (a) depending on the outcome of the trial, plaintiffs might not wish to appeal from the judgment, and (b) no matter how the appeals court rules on the 'making available' issue, the case will still have to continue in the lower court, since even if the RIAA wins on the 'making available' issue, the Court will still have to address the constitutionality of the large jury verdict, which may result in a new trial."
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RIAA's Request For Appeal Denied In Thomas Case

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  • by Adult film producer (866485) <van@i2pmail.org> on Saturday December 27, 2008 @10:52PM (#26246291)
    Fuck them. Will they not go away? I own 1800 cds collected over the last 15 or 20 years. I download the songs from the internet.. too lazy to rip em, so what? Fuck off already.
    • by b4dc0d3r (1268512) on Saturday December 27, 2008 @11:44PM (#26246519)

      Fuck them.
        -Adult film producer (866485)

      Parroting your industry standard reply I see.

  • Beware (Score:5, Insightful)

    by MacColossus (932054) on Saturday December 27, 2008 @10:53PM (#26246299) Journal
    This is very welcome news. However, we need to remember that a cornered wounded beast has nothing to lose and can therefore be very dangerous. This isn't over.
  • Judge's kids (Score:5, Insightful)

    by retech (1228598) on Saturday December 27, 2008 @10:56PM (#26246329)
    I cannot wait 'till the day the RIAA accidentally hits a judge's, congressman's, or senator's kids in a lawsuit. I wonder how long they'll be able to keep that lawsuit going.
    • Re: (Score:3, Insightful)

      by wmbetts (1306001)
      They don't need to worry about that. If they do then they silently drop the case and score points and maybe even a "friend" Washington.
    • Re: (Score:3, Insightful)

      by Blackhalo (572408)
      "I wonder how long they'll be able to keep that lawsuit going." About zero seconds. I am sure that as soon as it is clear that the RIAA minions have targeted anyone of notoriety or influence, the suit is dropped. These suits are just to keep the rabble in line and the settlements rolling in. The LAST thing they want is a public champion with the means to get good lawyers.
  • by Weaselmancer (533834) on Saturday December 27, 2008 @11:07PM (#26246373)

    And it seems to be better news than simply the RIAA getting smacked on their request to appeal.

    The RIAA claimed this: "there is a substantial ground for a difference of opinion on the question of law presented"

    Concerning: "whether the Judge had erred in accepting the RIAA's proposed jury instruction that merely 'making files available' could constitute an infringement of the plaintiffs' distribution rights"

    Now, I occasionally have a difficult time translating from Lawyer to English, but it sounds to me like the judge is not only saying "no you can't appeal" but "making available isn't copyright infringement, and there is no wiggle room to discuss the matter further because it's obvious that it's not."

    Do I have that right, NYCL? Because if I do it really sounds like bigger news than a trivial appeal request getting smacked down. Sounds like the Judge just dropped The Big One.

    • Re: (Score:3, Informative)

      by Zironic (1112127)

      As the Court fully explained in its September 24 Order, in National Car
      Rental System, Inc. v. Computer Associates International, Inc., the Eighth Circuit
      held that "[i]nfringement of [the distribution right] requires an actual
      dissemination of either copies or phonorecords."

      Basically they said that even though their earlier decision was appealed by another court that appeal is not binding so they'll stand by their earlier decision which I quoted above.

      IANAL but I think this just matters for this particular co

      • by sexybomber (740588) <boccilino@gma[ ]com ['il.' in gap]> on Saturday December 27, 2008 @11:47PM (#26246531)

        Disclaimer: IANYetAL, but I'm a law student.

        Usually you're right, the Eighth Circuit doesn't have to follow the Ninth Circuit's decisions (for example) and vice versa, but in this case, The Honorable Judge Davis does have to abide by that decision, since Minnesota's in the Eighth Circuit.

        What "actual dissemination" actually is, though... that's an open question, and I think that's what they're trying to figure out.

        I have no idea if I got that right, it's late and I'm on break. (And hence trying not to think about all things legal :-D )

        • by Paradise Pete (33184) on Saturday December 27, 2008 @11:55PM (#26246581) Journal

          The Honorable Judge Davis does have to abide by that decision

          When I see that written in a context like this it always seems that it's in order to distinguish this Judge Davis from some other less honorable Judge Davis. As in "No, this one was by the honorable Judge Davis."

        • by Zironic (1112127)

          Maybe I should have brought more context.

          Reading the PDF it basically says this:

          1) The court has at a prior point stated what I quoted above (That a copy has to be made for it to be copyright infringement, aka making available doesn't work.)
          2)However, that part of the judgement is not dictum (dictum means it's precedent)
          3) Irregardless of 2), Only that previous judgement, not any other judgement from any other court has any binding on this court, so it doesn't matter how many other courts the RIAA can convi

    • by NewYorkCountryLawyer (912032) * <rayNO@SPAMbeckermanlegal.com> on Sunday December 28, 2008 @08:25AM (#26248481) Homepage Journal

      Now, I occasionally have a difficult time translating from Lawyer to English, but it sounds to me like the judge is not only saying "no you can't appeal" but "making available isn't copyright infringement, and there is no wiggle room to discuss the matter further because it's obvious that it's not." Do I have that right, NYCL?

      Yes you have that right. But there's another biggy in the decision which is a little more subtly presented. The judge is also implying that even if the 'making available' issue were not on the table, he would probably be ordering a new trial because of the excessiveness of the size of the verdict.

  • by 3seas (184403) on Saturday December 27, 2008 @11:10PM (#26246389) Journal

    The RIAA shoudl just stop making the music available.

  • Too many ads (Score:5, Informative)

    by Animats (122034) on Saturday December 27, 2008 @11:21PM (#26246427) Homepage

    The "Recording Industry vs. the People" site has become incredibly ad-heavy. It now has layer ads that won't dismiss, a link farm, and regular Google ads. This thing has advertising from services I've never even heard of, like "shareasale.com". Amusingly, it has ads for RIAA-controlled music, and even for the iTunes store.

    Block "st.blogads.com" to make it at least tolerable.

    • Re:Too many ads (Score:5, Informative)

      by hostguy2004 (818334) on Sunday December 28, 2008 @12:03AM (#26246617)

      The "Recording Industry vs. the People" site has become incredibly ad-heavy. It now has layer ads that won't dismiss, a link farm, and regular Google ads. This thing has advertising from services I've never even heard of, like "shareasale.com". Amusingly, it has ads for RIAA-controlled music, and even for the iTunes store.

      Block "st.blogads.com" to make it at least tolerable.

      Before you get modded OT and NYCL will miss your post, I suggest that you politely email him.

      I enjoy his many submissions to Slashdot, so perhaps people should consider donating to his website, instead of criticizing his advertising.

      • I couldn't agree more.

        I, for one, love his advertising and hope people stop donating to his site.

        That way he'll add more glorius advertising for people, such as myself, to enjoy.

  • by carlzum (832868) on Saturday December 27, 2008 @11:32PM (#26246463)

    The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts. The myriad of copyright cases cited by Plaintiffs and the Government, in which courts upheld large statutory damages awards far above the minimum, have limited relevance in this case. All of the cited cases involve corporate or business defendants and seek to deter future illegal commercial conduct. The parties point to no case in which large statutory damages were applied to a party who did not infringe in search of commercial gain.

    The term "piracy" has been misused on individuals. An individual may be guilty of theft, like a shoplifter, but it's not piracy. Someone that takes an item without paying for it is very different than a rogue company selling unauthorized copies of another company's product. The RIAA treats individuals like profit-seeking organizations, and until now they've been successful. It's refreshing to see a judge recognize the distinction. I believe most critics of the RIAA would be a little more sympathetic to their position if they were pursuing misdemeanor charges for stealing $0.99 songs.

    • by poetmatt (793785) on Saturday December 27, 2008 @11:46PM (#26246523) Journal

      As it's been said in the courts,

      they're treating it like criminal matter but it's civil.

      The reason is that you can't subpoena people's addresses and stuff like that if it's civil. Also, unlike criminal court, you absolutely have to pay the fines if you lose. Since there is no proof of distribution, they'd have to pay for every single case.

    • Re: (Score:3, Insightful)

      by sexybomber (740588)

      I believe most critics of the RIAA would be a little more sympathetic to their position if they were pursuing misdemeanor charges for stealing $0.99 songs.

      I wouldn't be, for reasons I'll explain below.

      You seem to have fallen for the RIAA line that "ZOMG PIRACY IS THEFT". It isn't. In order for something to constitute theft, somebody has to be permanently deprived of property. Not profits, not the possibility of profits. When somebody's deprived of profits, that's not theft, that's copyright infringement.

      Theft is a criminal matter, punishable by possible jail time. Copyright infringement is a civil matter, punishable only by monetary damages. If you stea

      • by Dragonslicer (991472) on Sunday December 28, 2008 @12:12AM (#26246655)

        "ZOMG PIRACY IS THEFT". It isn't.

        Of course it is. It's also frequently murder. But it only really counts if you use a cutlass and wear an eye patch.

        In order for something to constitute theft, somebody has to be permanently deprived of property. Not profits, not the possibility of profits. When somebody's deprived of profits, that's not theft, that's copyright infringement.

        That's not necessarily true. Many, if not all, states have laws concerning theft of services. I'm not saying that copyright infringement is or is not theft, but I get really annoyed when people keep repeating the incorrect statement that theft must involve loss of physical property.

        • Re: (Score:3, Insightful)

          by Anonymous Coward

          Theft of services generally refers to failing to pay for a previously agreed upon service.

          If I hire someone to write a song for me and then fail to pay them, that is theft of services.

          If someone writes a song and I "steal" it, that is not theft of services. That is copyright infringement.

          The theft of services usually has to prevent the victim from providing the same service to someone who would pay for it (because it was provided to you instead) in much the same way that property theft prevents the victim

      • by carlzum (832868)
        When I say "more sympathetic" I don't mean I expect everyone to completely agree with the RIAA. I still have a problem with perpetual copyright for example. But what if their position was: "Hey, we produce songs and expect people to pay for it over the next few years. If you make copies for personal use and to share directly with friends, or resell the music you legally purchased, no problem. But downloading songs from distribution channels that fail to compensate our company is theft." That would be fair a
      • ...theft of service? It's quite real, yet quite intangible.

      • by DragonTHC (208439)

        That begs the questions of whether downloading music files is either theft or copyright infringement. It seems highly unlikely that downloading something that someone is offering to you for free and devoid of restrictions or licenses, could be theft. This is especially unlikely since creating another digital copy does nothing to the original. It's like lighting your candle from someone else's taper. Your flame does not diminish theirs. I can see how the idea of copyright can work to protect authors and

      • Facism? LOL. The distinction between civil and criminal law is an artifact of our legal system. There are many nations that do not make that distinction. Like France. Most would not consider the test of facism to be the existence of this type of legal system. If you want to be taken seriously you cannot include such errors in your argument.

        Then there is the little matter of copyright infringement and profits. The distinction you make is very specious. If I were to shoplift a CD this would clearly be theft.

    • by sowth (748135)

      I believe most critics of the RIAA would be a little more sympathetic to their position if they were pursuing misdemeanor charges for stealing $0.99 songs.

      Most critics of the RIAA probably wouldn't even be against file sharing lawsuits if the RIAA only went after actual copyright offenders. Instead they try to sue people who write communications ("P2P") software and spam the internet with bot produced (and often false) DMCA complaints, causing massive problems for just about anyone who wants to do anything

  • by Animats (122034) on Saturday December 27, 2008 @11:57PM (#26246587) Homepage

    This isn't a big deal either way. The judge denied an "interlocutory appeal", one made regarding some legal point before the decision in the case was final. Such appeals are rarely tried and even more rarely successful. The issue can still be appealed, just not until the current case is finished.

  • What's that mean in English?
  • Congratulations (Score:5, Interesting)

    by symbolset (646467) * on Sunday December 28, 2008 @03:03AM (#26247411) Journal

    If you can read this, you're now a criminal.

    L'ENVOI
    What is the moral? Who rides may read.
    When the night is thick and the tracks are blind
    A Friend at a a pinch is a friend indeed;
    but a fool to wait for the laggard behind;
    Down to Gehenna or up to the Throne,
    He travels fastest who travels alone.

    White hands cling to the tightened rein,
    Slipping the spur from the booted heel,
    Tenderest voices cry, "Turn again."
    Red lips tarnish the scabbarded steel.
    high hopes faint on a warm hearthstone --
    He travels fastest who travels alone.

    One may fall but he falls by himself --
    Falls by himself with himself to blame;
    One may attain and to him is pelf,
    Loot of the city in Gold or Fame:
    Plunder of earth shall be all his own
    Who travels the fastest and travels alone.

    Wherefore the more ye be holpen and stayed--
    Stayed by a friend in the hour of toil,
    Sing the heretical song I have made--
    His be the labor and yours be the spoil.
    Win by his aid and the aid disown--
    He travels the fastest who travels alone.
    - Rudyard Kipling, 1865-1936, from "The College Survey of English Literature", (c)1942, Harcourt, Brace and Company, Inc.

    Yes, the author's life plus 70 years has passed. Unfortunately I took this work from a compendium that owns the rights of reproduction that will persist well into the next century. This bit our our culture has been stolen from us by lawyers and sold legislators. Under current law there is no legal difference between you downloading Britney Spear's latest attempt at vocal rehab and your browser loading this poem written nearly a century ago on this page. That's wrong. That's very wrong.

    And now you're a dirty information property stealing criminal. You should be ashamed of yourself.

    • Re: (Score:3, Insightful)

      by iammani (1392285)

      If you can read this, you're now a criminal.

      Naa, you are a criminal (supposedly criminal) for posting it on a public website. If what you say were true, all the RIAA has to do is, get some loud speakers, play a copyrighted song, and sue everybody within the hearing radius (except the deaf of course).

    • On the contrary (Score:4, Interesting)

      by butlerm (3112) on Sunday December 28, 2008 @04:45AM (#26247765)

      Copyright does not protect portions of derived works that lack originality. That principle is the basis of the recent court decision Bridgeman Art Library vs. Corel Corp. [wikipedia.org]. Unless the publisher has made substantial changes to Kipling's work, I dare say we are not dirty rotten intellectual property stealing criminals after all.

  • No wonder the RIAA plans to abandon individual suits; because when individuals take it to trial instead of "settling" for a life of debt, the RIAA appears to be getting pounded.

  • for the longest run-on incomprehensible sentence I've ever read here or anywhere else.

    Any of you /.'ers actually ever had a class in grammar?

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