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Testimony Wraps In RIAA Trial 132

Posted by kdawson from the no-grandstanding-allowed dept.
Eskimo Joe writes "A federal judge surprised observers in the Captiol v Thomas file-sharing trial yesterday by barring RIAA president Cary Sherman from testifying. 'After a brief recess this afternoon, plaintiffs' counsel Richard Gabriel and defendant's counsel David Toder made their cases before the judge as to the relevance of Sherman's testimony. Toder argued that Sherman's testimony was not relevant to the question at hand, the fact of whether Thomas was liable for copyright infringement. Gabriel said that Sherman would be able to tell the jury why this case was significant, and more importantly, describe the harm the RIAA believes piracy has caused to the music industry. "I don't want to turn this case into a soap box for the recording industry," Toder argued in response.' Testimony wrapped up today [Wednesday] with closing arguments expected Thursday morning." Ars has up a summary, filed a few hours earlier, of other testimony in the trial. The jury could come back with a verdict later today.
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Testimony Wraps In RIAA Trial More

Testimony Wraps In RIAA Trial

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  • ummmm Tasty... (Score:5, Interesting)

    by Churla ( 936633 ) on Thursday October 04, 2007 @08:54AM (#20850969)
    This whole seemingly systematic smackdown being applied by the judicial system to the RIAA on what looks like multiple fronts is really getting close to making me have faith in our judicial system again... almost.

    • Re:ummmm Tasty... (Score:5, Insightful)

      by omeomi ( 675045 ) on Thursday October 04, 2007 @09:04AM (#20851101) Homepage
      getting close to making me have faith in our judicial system again... almost.

      And they're finally starting to look into the Gitmo Habeas Corpus thing. It's almost like the courts are remembering it's their job to respect the rule of law...

      • Re: (Score:1)

        by Myopic ( 18616 )
        Yeah, it's too bad, but it's in line with the court's history. In America in times of war courts often drag their feet on issues for a while, letting the other two branches of government duke it out or try to reach a solution, before really coming in and giving an opinion. It's remarkable constraint, really. American legal history makes the courts the most powerful branch in theory, because for the most part everyone else follows court orders all the time. So the fact that courts don't jump in all over the
    • Maybe that's what they want you to think

    • Don't get too excited.

      Reading over the summary of testimony at Ars Technica, they have Jammie Thomas dead to rights. The fact is, she was downloading and sharing music over Kazaa, and unless the jury is made up of idiots, they're going to find for the RIAA.

      The RIAA aren't idiots, they deliberately chose this case because it was extremely low-risk. They're looking to get some momentum back in their sue-everyone campaign, and by winning this case, they may very well do it. Of course, the down side is t

      • Re: (Score:3, Insightful)

        by MindStalker ( 22827 )
        Actually no it appears she owns most of the music she was sharing. So she was ripping, and possibly sharing those rips on Kazaa. Of course the RIAA has always been more concerned with the sharers than the downloaders anyways. Just wanted to correct you on that point.
        • Actually no it appears she owns most of the music she was sharing.

          Most of it?? You don't really understand how the law works, do you?

          • I probably shouldn't have said most, either way she has a huge CD collection and apparently has ripped them all. Of course I can't say all as I'm not involved with the trial, but they don't seem to be able to show any evidence of downloading.
            • Small point.
              If you WERE in the trial you wouldn't even be allowed to read the article summary.
              So unless you are saying that you would make a very bad juror, it goes without saying that you aren't one.

            • Re: (Score:2, Interesting)

              by hgriggs ( 33207 )
              > either way she has a huge CD collection

              A couple hundred cds is not a huge CD collection. A couple thousand CDs is a big CD collection, 10,000 CDs is a huge CD collection. A couple hundred CDs is just a few songs.
      • Comment removed based on user account deletion

      • The fact is, she was downloading and sharing music over Kazaa
        Of course she was. The majority of the people that have been sued did, in all likelihood, download what the RIAA claims they did (or at the very least someone they allowed to use their internet connection was, such as their children).

      • Re: (Score:1, Troll)

        by anagama ( 611277 )
        Win or lose it is publicity for the RIAA, particularly the reports that Thomas has paid $60k in attorney fees so far. Even if she wins, people will hear how much it cost her to win. But, if the reports are to be believed, she ain't winning this one -- she put on no experts (couldn't afford them) nor did she offer anyr testimony to substantiate alternative reasons for how the files got shared if it wasn't her.

        I expect the jury to come back with a damage award of some kind -- probably not $750 per song bec
      • It's sad that the defense lawyer couldn't have invented a couple of half-way plausible scenarios where the person sharing the files was not her. $60,000 doesn't buy much legal representation it seems.

        Take note, those who would use the wireless defense:

        Evidence against Thomas included her internet protocol address matching the address where the files were shared, as well as her Charter Communications' cable modem MAC address. A wireless intrusion was also ruled out, because the private internet protocol addr

        • Re: (Score:3, Informative)

          by KingSkippus ( 799657 ) *

          This was one of the least of her worries.

          She used an e-mail address that is the same e-mail address that she used for her screen name on a bunch of other sites. (Even match.com, which had her profile that was shown in court.) She also had one and only one computer on her network, and it was password-protected with a password that only she knew. (No "someone else was using my computer" defense.) The songs that showed up on KaZaa were, lo and behold, the exact same songs that were on her computer.

          I me

    • Comment removed based on user account deletion

  • Uncertain either way (Score:5, Interesting)

    by radarjd ( 931774 ) on Thursday October 04, 2007 @09:03AM (#20851089)
    Ars has had really good coverage [arstechnica.com] on the whole trial -- one of their reporters has been there the whole time. I think there are a couple of things to keep in mind:

    1) We don't know how it's going to turn out. I think the RIAA has actually done the best job they could do to present their case. They have strong circumstantial evidence that this particular defendant uses the Kazaa user name in question, and that she was likely the only person using the computer. The standard in a civil case is proof by a preponderance of the evidence. That is to say, that it's more likely than not that she did what is claimed. It doesn't have to be lock solid, or beyond a reasonable doubt. On the flip side, the defense has also done an excellent job controlling who gets to testify, and appears to have argued for good jury instructions. The most important thing to come from this case may well be the "making available" jury instruction, as that will likely be a major issue for future cases.

    2) This is going to be appealed. If the defendant wins, the RIAA will appeal. They have to. If the RIAA wins, I imagine the defendant will appeal so long as she can afford it. As likely, both sides will have parts of the ruling that they're unhappy with, and they will cross-appeal. This decision won't end the case.

    It's a very interesting and important case. I look forward to more developments.

    • It's a very interesting and important case. I look forward to more developments.

      I really don't want this to be the case that the community rallys around, because she clearly (in my mind) did what is claimed. I think this is a slam-dunk for a civil trial and I'd say it would have a pretty good chance even for criminal (if that were the case).

      • Re: (Score:2)

        by radarjd ( 931774 )

        I really don't want this to be the case that the community rallys around, because she clearly (in my mind) did what is claimed. I think this is a slam-dunk for a civil trial and I'd say it would have a pretty good chance even for criminal (if that were the case).

        Yeah, I tend to agree from the evidence I've heard, but the jury instruction is what is really important to me. The best outcome might even be that the judge refuses to give the "making available" jury instruction. The RIAA wins the case, and then neither side appeals. That would let this defendant set an important president for the instruction, and keep it from being appealed. Just a thought...

      • Re: (Score:3, Interesting)

        by jedidiah ( 1196 )
        Not really.

        They've only established that they could personally commit an act of computer
        tresspass and take files off of her machine. They have not established that
        anyone else ever downloaded anything from her. They have not established that
        she pirated the music files that were in her possession.

        Infact, she was able to document a VERY robust music purchasing history at Best Buy.

        At worst, they could demonstrate that she's the sort of person that would spend money
        like a drunken sailor at Best Buy and then go h

        • They've only established that they could personally commit an act of computer tresspass and take files off of her machine.

          I don't think it would be considered trespassing if it's on a kazaa share. That sounds like people griping because you 'steal' info they've stuck in their /var/www/htdocs directory

          They have not established that she pirated the music files that were in her possession.

          True.

          At worst, they could demonstrate that she's the sort of person that would spend money like a drunken sailor a

        • http://arstechnica.com/news.ars/post/20071004-verdict-is-in.html [arstechnica.com]

          fter just four hours of deliberation and two days of testimony, a jury found that Jammie Thomas was liable for infringing the record labels' copyrights on all 24 the 24 recordings at issue in the case of Capitol Records v. Jammie Thomas. The jury awarded $9,250 in statutory damages per song, after finding that the infringement was "willful," out of a possible total of $150,000 per song. The grand total? $222,000 in damages.

      • Re: (Score:2)

        by Sancho ( 17056 )
        The thing is, most of the accused people have been doing this. Hate them all you want, but except for this case, when people have stuck to their guns and said, "I don't have any music on my computer," or "It was my roommate," or "I don't even have a computer," the RIAA has backed down.

        In fact, this case is exactly the kind that the RIAA should pursue because it's so obvious (from the facts presented in the Ars articles) that she did it. Even with this inevitable win for the RIAA, it's unlikely to matter.

    • Re:Uncertain either way (Score:5, Interesting)

      by neoform ( 551705 ) <djneoform@gmail.com> on Thursday October 04, 2007 @09:17AM (#20851279) Homepage
      Even if the RIAA wins, they will have to prove damages. That's another game entirely.

      • Re: (Score:3)

        by radarjd ( 931774 )

        Even if the RIAA wins, they will have to prove damages. That's another game entirely.

        I assume they would elect to take statutory damages [cornell.edu].

        • Re: (Score:2)

          by neoform ( 551705 )
          It would be an interesting precedent.. but..

          (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in it

          • She wasn't making any money from the sharing, and technically speaking, her leaving the p2p app open could be construed as "public broadcasting" of the music, since she didn't have any prejudice when it came to who she shared with.

            I'm not sure where we are on legal grounds here but broadcasting requires active effort. Sharing is a passive effort. They are completely different.

          • Re: (Score:3, Insightful)

            by cpt kangarooski ( 3773 )
            Ordinarily I just get annoyed with people who fail to read the definitions of words in the law, instead substituting their own fantasy definitions to make themselves feel unjustifiably good about themselves.

            You, I'm going to go a bit further and call you an idiot.

            You actually quoted this: a public broadcasting entity (as defined in subsection (g) of section 118) But you failed to actually look to see what the definition was. I can't let that pass.

            But let's now do the work you should have done before posting

    • Re:What are the limits on "making available"? (Score:4, Interesting)

      by ptbarnett ( 159784 ) on Thursday October 04, 2007 @09:41AM (#20851683)
      The most important thing to come from this case may well be the "making available" jury instruction, as that will likely be a major issue for future cases.

      If the defense doesn't succeed and "making available" becomes the standard for prosecution, I'm wondering what the limits will be.

      I have a USB memory key that fits into an MP3 player [everythingusb.com]. Back when MP3 players (and flash memory) were more expensive, I was able to buy the player for about $25 and use the 1GB memory key I already had.

      I ripped a few albums onto the memory key and would listen to them on the plane when I was traveling. At a relatively low bit-rate, the MP3s took up very little space, so I just left them there as I used the memory key for moving data files to and from the clients I was working with.

      At one point, I gave the memory key to a client to transfer a file. He took a long time to do it, so I checked back to see if something was wrong. I found him adding all my MP3's to his collection. I politely asked him to delete the files, and subsequently deleted the MP3's off my memory key.

      So, did I "make [those files] available" to him by giving him a memory key that happened to have the files on it?

      • So, did I "make [those files] available" to him by giving him a memory key that happened to have the files on it?

        Yes you did. We'll be contacting you soon.

        - The RIAA

      • You "politely asked him to delete the files?"

        I imagine he looked at you like you were from another planet, and politely told you where you could put that memory stick. Or at least, I hope he did. What harm does that do to you?

        • I imagine he looked at you like you were from another planet, and politely told you where you could put that memory stick. Or at least, I hope he did. What harm does that do to you?

          He copied those files without even asking my permission. If you don't understand why that's wrong, then I can't explain it to you -- because we are indeed from "different planets".

          • I understand it pissed you off. But really, anything on my flash drive (especially anything on a flash drive I intend to hand around at any point) that I consider in any way to be secret or private is encrypted. I doubt you're the copyright holder of the music files you copied to the flash drive either, and if I hand a drive with several songs on it to someone to copy a file off, I figure they'll probably copy any music they like while they're at it.

        • What harm does that do to you?

          Well, all my homemade pornography is labeled "Weezer - Buddy Holly music vid" etc. So my anti-piracy stance helps me yell at people who want to copy it.

          Also, yes, since I post on Slashdot, you may safely assume I am the only one appearing in my homemade porn.

  • How much harm exactly? (Score:4, Insightful)

    by Cryophallion ( 1129715 ) on Thursday October 04, 2007 @09:04AM (#20851097)

    Gabriel said that Sherman would be able to tell the jury why this case was significant, and more importantly, describe the harm the RIAA believes piracy has caused to the music industry.

    A. It is important to them because it may mean the end of them using shotgun tactics (hope to hit someone) to try and curb piracy.

    B. It is important to him because they pay what I assume is a substantial salary to him, and he will not look good to the media companies backing him if revenue drops even further because they don't have money coming in from lawsuit settlements

    C. They "believe" the piracy has caused harm. I've yet to see credible evidence that is has (at least using realistic numbers, instead of their inflated ones, plus I don't even really know if piracy is any worse than the tape swapping days). I believe that their methods have caused the Consumer and Taxpayers harm. Does that mean I can testify?

    The lawyer was exactly right, as was the judge. It was not relevant to the question at hand, it would have been emotional rather than factual, and it would make the case an even bigger circus and soapbox. Plus, I want it to be our soapbox where we expose the RIAA for the slimy weasels they are.

    Oh, and I don't like the RIAA, in case I hadn't made it clear yet.

    • Re: (Score:1)

      by J_Omega ( 709711 )
      I'll probably get modded down as a troll. I wish I had the time to look up the references here, but...

      B: The media companies don't have revenue coming in from settlements. I think that in this specific case, earlier testimony indicates that the lawsuits (usually settled out of court) haven't made or lost money. Lawyer's fees and such have offset the returns paid out.

      C: Do you really need to see credible evidence - yourself, outside of a court - that indicates piracy/copyright infr/sharing has incre

      • Re: (Score:2)

        by jedidiah ( 1196 )
        > C: Do you really need to see credible evidence - yourself, outside of a court -
        > that indicates piracy/copyright infr/sharing has increased since the CD came into popular use?

        HELL Yes.

        Music pirates are "buying for zero cost". So issues of "quality" aren't relevant.

        Yes, people pirated music with wanton abandon even before the CD. You do realize that
        blank audio cassettes were widely available during the "analog age". What do you think
        people did with those?

        What do you think people did with all of those

        • Re: (Score:2)

          by J_Omega ( 709711 )
          >> HELL Yes.

          My apologies. I thought it was rather apparent, esp. to the /. crowd, that piracy certainly has increased since the CD/MP3/P2P age. (In court, I want "proof" as well.)

          I think that quality certainly IS relevant - at least it is important to the music industry. They didn't push the tape-swap issue this (mp3) hard due to the degradation of each swap. It also seems relevant on the hardware side, since more DAP devices (iPod, Zune, etc.) are implementing lossless decoders.

          Not tha

          • Re: (Score:2)

            by jedidiah ( 1196 )
            No. I still think you're full of shit.

            You are attempting to conflate ubiquitous computer networking with the formats that music come in.

            People download plenty of crap that looks or sounds like shit already. The theoretical availability of "perfect digital copies" hasn't changed this. Lazy people will continue to do what seems easy and what doesn't cost any money. Many people have low standards/expectations (see McDonalds, Microsoft, Walmart & GM)

            Kazaa is the important element here, not the CD format.

            Som

            • Re: (Score:2)

              by J_Omega ( 709711 )
              Conflate? no. Point out the relationship between two independent technologies? Yes.

              Digital music & Digital devices. They already speak the same language. It is most assuredly easier to copy/trade/pirate music now. Simple. No "special device" (patch cable?) needed. No lengthy time required. Plop a CD into PC - open some app up - press "rip" - wait 5 mins - voila, done.

              Ignore my initial mentioning of bit-perfect copies if you need to. It was a side-note in my original response.

              >>K
      • I for one do not consider your post as a troll, as you try to use factual and well thought out arguments (I use the word try not to say you didn't succeed, but because you didn't have time to do proper research, which I didn't either, but which you attempt to present without having the backup I'm sure you'd normally want). I thought you therefore deserved a response:

        B. I wasn't sure if they made money directly or not, I did not have the chance to look up references either. I think in some way they benefit,

    • Re: (Score:1)

      by TALlama ( 462873 )

      It is important to [the RIAA] because it may mean the end of them using shotgun tactics

      Man, I thought people were just downloading stuff, but people are shooting at the RIAA, now?

    • Re: (Score:2)

      by Sancho ( 17056 )
      Of course, since copyright has been around in the US, proving harm has been almost irrelevant. Copyright is about control, not money.

      I'd be a lot happier with copyright (and the media cartel's tactics) if it was a lot shorter.

  • He shouldn't had to try. (Score:5, Insightful)

    by aadvancedGIR ( 959466 ) on Thursday October 04, 2007 @09:04AM (#20851105)
    The RIAA already had anti-pirating laws voted, so why would he have to testify that pirating is bad?
    Probable answer: because thet cannot prove the guilt of the defendant so they tried to move the trial away from the determination of the truth.

  • There's a place for such testimony (Score:3, Informative)

    by Anonymous Coward on Thursday October 04, 2007 @09:05AM (#20851111)
    It's called a victim impact statement. http://en.wikipedia.org/wiki/Victim_impact_statement [wikipedia.org] It gives victims of violent crime the opportunity to let the court know how they were affected by the crime. It is given at sentencing after the verdict has been reached.

    Letting the suit spout before the verdict is delivered (in a case that didn't involve violence) would be an abuse of process but hey this is the RIAA. The judge did the right thing. My guess is that if the testimony had been allowed, the resulting appeal would have been successful.

    • Re: (Score:3, Interesting)

      by DDX_2002 ( 592881 )
      You do realize this is a civil suit and not a criminal case? Victim impact statements are used in criminal cases and the laws that create them are intended to give the victim a chance to speak and be heard - which is important because they're not a party to the litigation and wouldn't otherwise have any right to be heard. It is not, after all, The Victim vs. The Accused in a criminal case, it's The People, or the State, or The Queen(depending on the jurisdiction) vs. The accused. Prosecutors fight cases and

  • WTF? (Score:4, Funny)

    by FredDC ( 1048502 ) on Thursday October 04, 2007 @09:09AM (#20851157)
    From TFA:

    When the first CD was done, she announced the time as 2:36.18. Gabriel immediately objected saying that they timed it at over four minutes. The apparently-amused judge said that the jurors could figure out the time for themselves. The second CD ripped in 2:17.71 according to the defendant's timing (I timed the second demonstration in 2:18.97). Gabriel again objected, saying that he had it at three-and-a-half minutes.


    My theory is that one lawyer is 'spinning' the truth alot faster than the other. Therefor resulting in the major difference in elapsed time.

    • Re: (Score:2)

      by Zocalo ( 252965 )
      Hey, the RIAA clearly has different concepts of enumerating CD drives and the value of copies of individual songs than everyone else, why should we expect them to have a grasp of time that is grounded in reality either? The discrepancy is about 1m20 in both cases, so it's likely to be something along the lines of the RIAA's lawyer was including the time taken to fetch each CD from the other side of the room and take it back again afterwards or something asinine like that.

    • Re: (Score:3, Interesting)

      by norminator ( 784674 )
      My favorite part about that was this exchange:

      "Is it still your testimony that the music on the defendant's computer was copied from a hard drive?" asked Toder. "Given new versions of software, you could rip this fast," conceded Jacobson.

      Would newer, more bloated ripping software have any chance of ripping faster? Are there any newer, enhanced "ripping technologies" that they didn't have in earlier versions of WMP, iTunes, etc.? I know the guy is A) talking out of his butt, and B) trying to pretend that maybe it wouldn't have been possible to rip that fast back when the "offense" occurred, but shouldn't the lawyer at least be required to admit that the evidence not only showed that it was

    • Re: (Score:3, Funny)

      by Herkum01 ( 592704 )

      The second CD ripped in 2:17.71 according to the defendant's timing (I timed the second demonstration in 2:18.97). Gabriel again objected, saying that he had it at three-and-a-half minutes.

      I would assume that Mr Gabriel is using the same clock that uses for billing his clients as that would account for the time differences.

  • Most casual users downloading music and video from p2p networks aren't looking for permanent copies they just want to listen to a track or watch a tv show so more and more people I know are now using websites for their music and video. youtube.com [youtube.com] has a ton of deals in place for legal content sharing and for music imeem.com [imeem.com] has advertising sharing deals with music industry titans like Sony, Warners and BMG. Why download when you can just go to a website, type in a band's name and instantly listen to their

  • Good for Cary Sherman (Score:4, Funny)

    by jonathan3003 ( 797920 ) on Thursday October 04, 2007 @09:36AM (#20851573)
    The judge probably saved him from perjury.

  • A (semi) Contrarian View (Score:2, Insightful)

    by R2.0 ( 532027 )
    While I loathe the recording industry and hope they lose this case, I believe it may have been a tactical error on the part of the defense to object to this particular witness. Once on the stand, and after spouting of about damages to the industry as a whole, etc., it would then be the defense's turn. And since the subject matter of the whole industry had been brought up by the plaintiffs, the defense would be free to ask about the industry as a whole - for instance, what is the industrywide average reven

    • Re: (Score:3, Insightful)

      by Zontar_Thing_From_Ve ( 949321 )
      And since the subject matter of the whole industry had been brought up by the plaintiffs, the defense would be free to ask about the industry as a whole - for instance, what is the industrywide average revenue earned by individual artists on a CD sale? What are the terms of the industry standard contract artists regarding copyrights? Did the industry not collude to fix CD prices, as evidenced by their conviction in Federal court?

      None of which have any relevance to the matter of the trial, which is whether

      • Re: (Score:2, Informative)

        by R2.0 ( 532027 )
        "None of which have any relevance to the matter of the trial, which is whether she did or did not install Kazaa and thus share music with others on the internet. All that would have to happen is that the RIAA attorney would argue that the questions are irrelevant and have the judge agree. The plantiff's attorney made the right call in arguing against the testimony of the RIAA guy."

        Ahh, but that is the point! If the plaintiff believes that wider issues are relevant, and they get to present them, then they a

        • Re: (Score:3, Informative)

          by Sancho ( 17056 )
          It would be a useful tactic if the jury knew about Jury Nullification. As it stands, it seems unlikely that they do. When they're told to go back and decide whether a law was broken, they're going to be told that they have to determine if the defendant broke the law. All the rigamarole about the industry as a whole is going to be pointless, unless they can understand that the current laws are unjust and that they are allowed to find in favor of the defendant despite the fact that she broke the law.
          • Is it permitted for the advocates (i.e the lawyers for the plaintiff(s) and the defendant(s)), in their proposed jury instructions, to remind the Jury that they have the right to nullify?

            • Re: (Score:2)

              by Sancho ( 17056 )
              I've heard that a judge can declare a mistrial if the lawyers do this, but I have nothing to back this up.
    • No, there would have been no useful testimony extracted by the defense. Sherman is not an expert in the accounting systems, financial records, or contractual agreements of the member corporations. None of that would be information he could be expected to know, or to provide in any detail under a cross examination.

      He would really only be qualified to answer questions about the organization and its projects in general forms. About the best you could do would be to get him to admit that he hasn't any data on t

      • Re: (Score:1)

        by R2.0 ( 532027 )
        "No, there would have been no useful testimony extracted by the defense. Sherman is not an expert in the accounting systems, financial records, or contractual agreements of the member corporations. None of that would be information he could be expected to know, or to provide in any detail under a cross examination."

        Which, I think, could act as a wedge to get that information is as written evidence, or rebutal witnesses.

        Defense Lawyer: "Could you tell me what percentage of industry profits goes to artist roy
  • Sadly, according to the update at the end of the Ars Technica article (see http://arstechnica.com/news.ars/post/20071004-debate-over-making-available-jury-instruction-as-capitol-v-thomas-wraps-up.html [arstechnica.com]), the "making available" argument will be provided to the jury.

    This is sad, because the "making available" argument has no basis in law except when a person is actively promoting infringement (see the Grokster case). There's no proof Jammie ever encouraged infringement.

    Here's hoping that Jammie prevails

    • Sadly, according to the update at the end of the Ars Technica article (see http://arstechnica.com/news.ars/post/20071004-debate-over-making-available-jury-instruction-as-capitol-v-thomas-wraps-up.html [arstechnica.com] [arstechnica.com]), the "making available" argument will be provided to the jury. This is sad, because the "making available" argument has no basis in law except when a person is actively promoting infringement (see the Grokster case). There's no proof Jammie ever encouraged infringement. Here's hoping that Jammie prevails!!! Regards, Art

      I guess that's why they wanted to go to war in Duluth. They knew they couldn't convince a Manhattan judge to buy into that nonsense, but hoped they might get a midwestern judge, with less copyright law experience, to fall for it. What a shame. And probably Ms. Thomas doesn't have the dough for an appeal.

      • Re: (Score:1)

        by Dr_Art ( 937436 )
        Is there a way we can contribute $$$ to help her with legal costs?

        Regards,
        Art

        • Re: (Score:3, Informative)

          by NewYorkCountryLawyer ( 912032 ) *
          Certainly. Send checks to her lawyers, earmarked for the Virgin v. Thomas case. Here is her lawyer's information:

          Toder, Brian N., Chestnut & Cambronne, P.A. 204 North Star Bank 4661 Highway 61 White Bear Lake, MN 55110
      • Excuse me sir, but isn't it possible that a certain midwestern judge might take that as a slight to his competence concerning matters of law? I must confess that I have not known many judges in my time but if I were a writer, for example, and someone obliquely suggested that I was a hack then I might be inclined to take it personally. Perhaps an Amicus Curiae brief to draw the attention of the judge to certain relevant copyright laws, commentaries, and precedents would be more appropriate?

    • Re: (Score:2)

      by HTH NE1 ( 675604 )
      Though it appears it became instruction number 15, not 14:

      JURY INSTRUCTION NO. 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.

      Why couldn't this have been left as an item for the jury to determine for themselves? It is a matter at the heart of the case that effectively predetermines t

      • Re: (Score:1)

        by Dr_Art ( 937436 )
        I think it will make great justification for an appeal, if the jury finds for the RIAA.

        It's also interesting if you think about MediaSentry and it's use of Kazaa to fish for people. As soon as they download the song, now they are making it available. Can you say "attractive nuisance"? :-)

        Regards,
        Art

  • Is it really better? (Score:4, Interesting)

    by Wylfing ( 144940 ) <brian&wylfing,net> on Thursday October 04, 2007 @10:09AM (#20852153) Homepage Journal

    I am split on whether it would be better or worse for the defense to have Mr. Sherman on the stand. I mean, my legal experience is more-or-less limited to doing Mock Trial in high school, but even I can think of ways to absolutely shred Mr. Sherman on cross. Surely during direct the counsel for plaintiff would simply open the door for him to preach and then get out of the way. Mr. Sherman's rant would probably include the old favorites, like "Internet piracy is to the music industry what the Boston Strangler is to women" etc.

    So on cross you take it all apart:

    • You base your claims of harm from piracy on empirical research, correct?
    • So surely you know that there have been many impartial studies that show piracy is not, in fact, harming the music industry?
    • (Sherman gets evasive. Will witness please answer the question, yes or no. He opts for what he sees as the lesser of two evils and says No.)
    • Oh, you don't know that? Given that your responsibilities as RIAA president involve making statements to the public that can affect the share price of RIAA member companies, wouldn't it be your job to be aware of all the available research?
    • (Sherman gets evasive again. Will witness please answer the question, yes or no. It doesn't matter which way he answers. If he says No, then we get to explore why he ignores scholarly research on the subject. If he says Yes, then we also get to explore why he ignores scholarly research on the subject.)

    At that point, you've got him by the balls and can play it any way you like. I suppose Mr. Toder may not feel up to the task of going head-to-head with Mr. Sherman. Or maybe there is some calculation of legal risk that I am not seeing, e.g., Mr. Toder already feels like his case is in great standing, but I don't perceive that as an outside observer. I would have preferred to see all the RIAA bull trotted out and slaughtered in front of the jury.

    • It's irrelevant. (Score:4, Insightful)

      by SatanicPuppy ( 611928 ) * <Satanicpuppy@gmai[ ]om ['l.c' in gap]> on Thursday October 04, 2007 @10:45AM (#20852799) Journal
      The question is not, "Should file sharing be ethical or legal" but "Did the defendant systematically violate the copyrights owned by the plaintiff?"

      The law states that file sharing is copyright infringement. If they can prove she did it, or very probably did it, she's liable. That's all there is to it. The RIAA has a bunch of IP address data, and some username stuff, but they habeus no corpus because of a conveniently dead hard drive. The defendant is claiming that their data collection methods are shoddy, that the IP data is inconclusive, and that there is, in effect, no proof of infringement.

      The whole trial (it being a civil trial) will come down to who the jury likes more.

      Arguing the constitutionality of copyrights applied to music, etc, would have to go to the Supremes, which would involve a case where someone actually admits to doing the filesharing, and argues that it's a constitutional right, and that the laws against it should be ruled unconstitutional. Since admitting to doing the sharing is silly since you're far more likely to get off by denying it, no one (to my knowledge) has yet tried this method.

      • Re: (Score:2)

        by jedidiah ( 1196 )
        > The law states that file sharing is copyright infringement.

        Yes. For that to be the case the file actually has to be shared.

        This isn't some pirate BBS we're talking about here where there
        is a Banner message that says "come one come all, take what you
        like and upload what you can". We can't tell Kazaa from the rest
        of the clutter that ends up on a normal person's PC.

        You put mp3 files where Windows shares files by default. Now you
        must pay me 10 gazdillion dollars.

    • I'm not a lawyer either, but I think all of those 'questions' you addressed would be objected to, and stricken, based on the fact they they're all hearsay (the various studies) or leading the witness.

      There's a reason lawyers don't play that game with expert witnesses - if you ask them 'does everyone in your field agree with you?' he will answer 'everyone who knows what they're doing.' If you want to counter Sherman's hypothetical testimony, you're going to have to bring in the expert parade - you can't ju

  • I have decided a long time ago not to buy any new music. This is a matter of principle. When I spend money on a product, I own it. Thats it! I will use it for my own uses.

    Unfortunately, the record industry wants me to buy and buy the same music over and over again. That is not right and in fact is a form of usury and extortion.

    Where is the scales of justice? Perhaps in someone's pocket.

    My only regret: I can't buy music from new talent. Everyone seems to lose here (i.e., record industry, fan

    • Vierpsyche, You're right, you do own it. In fact by law you have the right to make a backup copy of any disc you have purchased. The RIAA tried to sue my son (13 years old). I was able to prove that they had penetrated my firewall (fixed that exploit) and browse my network. 5 days after recieving notice from RIAA we filed countersuite claiming intentional unauthorized access to a private network. Boooooooooya...they dropped their claim against my son and I dropped mine. From that I learned the tactics the
      • In fact by law you have the right to make a backup copy of any disc you have purchased.

        That's not actually true.

        In fact, you don't have the right to make any copies of copyrighted works on a CD without permission, per 17 USC 106. There is an exception to this at section 107, but it does not always apply it depends on the circumstances and is very vague. There is another quasi-exception to this at section 1008, but it only works under very specific circumstances, though not vague ones, and virtually no one e

  • Suing your customers (Score:4, Insightful)

    by Xebikr ( 591462 ) on Thursday October 04, 2007 @10:47AM (#20852827)
    From a related article: http://arstechnica.com/news.ars/post/20071003-defendants-counsel-hammers-away-at-piracy-picture-painted-by-riaa.html [arstechnica.com]

    During his cross-examination of Geek Squad member Ryan Maki, Toder was able to use Best Buy's sales history of Toder to show that she was an avid music fan that bought a lot of music from the store, both before and after February 2005. "Best Buy's records show that she bought hundreds of CDs before February 2005, did she not?" asked Toder.

    "There are quite a few CDs and DVDs purchased," replied Maki. "She's a good customer."
    Way to drop the legal hammer on one of your best customers.

    • Re: (Score:2)

      by jedidiah ( 1196 )
      How does telling the jury "she probably rightfully owns
      every music file on her computer" "lay the legal hammer"
      on anyone?

      That establishes proper custody of the music that they are
      claiming she's "sharing". It takes the "download" part out
      of their claims that she downloaded and then uploaded music.

      • But has anyone ever been sued for "downloading" music? These cases typically hinge on distribution, or "making available." There is a big difference, because "downloading" a track means you, the defendant, downloaded an MP3 for free instead of paying 99 cents to iTMS (or wherever). The industry has lost, flatly, 99 cents. But if you "share" that track, you have suddenly made it available to God only knows how many other miscreants. In essence, you are distributing it -- and that is, rightly, a whole 'nother

        • Re: (Score:2)

          by jedidiah ( 1196 )
          That's not the point.

          They have made a claim in a court of law that has been rather effectively contradicted by testimony.

          The truth of claim B tends to be undermined by the fact they were full of shit when it came to claim A.

    • Re: (Score:2)

      by portnoy ( 16520 )
      Um, he's helping her, not dropping the hammer on her. The fact that she has bought hundreds of CDs from Best Buy corroborates her testimony that the files on her replacment disk drive are ripped from CDs she already owns, not pirated from the 'net.

      • Re: (Score:2)

        by Xebikr ( 591462 )
        To clarify, in the article, the testimony was from a defence witness. I didn't mean to imply that Best Buy was suing a good customer, but that the RIAA was.
    • It just makes the RIAA look like greedy "evil businessmen" and can sway the jury a bit. It would be one thing if she hadn't bought all kinds of CDs, but she did.

      Jury could well feel that "hey, they made their money off her already." Combined with their position that all copying is theft, they really look bad. None of this paints the RIAA in a favorable light as victims needing to be made whole, it makes them look like just flat out greedy evil bastards. Juries tend to hate greedy evil bastards.

  • More on the moronic plantiff's "expert" (Score:3, Interesting)

    by jgoemat ( 565882 ) on Thursday October 04, 2007 @01:52PM (#20855899)

    From an article [arstechnica.com]:

    Once cross-examination began, Toder started asking Jacobson about things such as MAC address spoofing, cracking, P2P pollution, and multipeer contamination, intimating that one of those things could have been in play when Media Sentry detected the shared folder at the IP address in question. He then questioned Jacobson about his assertion that the music currently on Thomas' computer had to have come from a hard drive and announced that he wanted to demonstrate to the jury that it was possible to rip CDs as quickly as the timestamps from the forensic examination showed (the timestamps were approximately 15-20 seconds apart with a longer 30- to 45-second gap between CDs).

    This would tend to prove that the CDs were ripped, and not copied from another hard drive. 15-20 seconds? If they are normal 128kbit MP3 quality, the files are around 5 megabytes. If your hard drive can only copy at 300 kilobytes per second, you need another hard drive. Also that wouldn't account for the extended gap between CDs. If she was copying files from another hard drive, there should be no extra gap. The expert said that speed of ripping wasn't possible, so the defense went on to demonstrate the ripping of a CD and timed it. They came up with 2:36.18, the plaintiff's attorney objected saying it was over 4 minutes. He ripped another coming up with 2:17.71 (the reporter timed this one too and got 2:18.97), and the plaintiff's attorney objected again saying it was over 3 and a half minutes. I hope the jury "got" this. If an "expert" f-ed up this badly, I would disregard everything he said on the stand as unreliable.

  • There are a lot of people saying she is guilty. I don't necessarily buy that from an objective point of view according to what I have read of the trial summaries.

    Starting from the beginning, the RIAA would have to prove:
    1) They own the copyright to the songs in question.
    2) Somebody besides MediaSentry downloaded the songs in question.

    Pretty basic. The RIAA case is as follows:
    1) The defendant had Kazaa installed
    2) She used the same username elsewhere so it had to be her
    3) Some sort of magical evidence stat
  • The jury found her liable for $220,000. $9250 each for 24 songs.
  • The Startribune is reporting the jury found the Jammie Thomas had willfully committed copyright infringement [startribune.com].

    Sucks to be her. I hope she appeals and doesn't get a jury of backwater hicks this time. I'm from MN and can say that :P.
  • And owes the RIAA $222,000. About $9000 a song. http://minnesota.publicradio.org/display/web/2007/10/04/downloadingday3/ [publicradio.org]
  • I read lots of articles about this trial but what are the facts, and most importantly, how did the RIAA obtain information on this citizen? How did they get access to her hard drive? What did she do to make herself vulnerable. Most of the literature about these sorts of cases write about how the defendant "downloaded" and that was their crime, but isn't the truth that the RIAA can only take action against people who make files available for download? If I download a file from an RIAA server, it might be
  • Regardless of the legal implication, the moral implication is that a greedy middle many who produces very little itself, has taken $220,000 from someone in a way I do not believe to be right. I shall no longer be purchasing any capitol records nor their parent company EMI.

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