Board index General SciTech

suit against RIAA - one to watch....

Science & technology/gaming/home-theatre/computer discussion.

suit against RIAA - one to watch....

Postby TC on 10/06/09, 10:17:35

Ars wrote:Lawyers plan class-action to reclaim "$100M+" RIAA "stole"
Lawyers in this year's two highest-profile file-sharing cases have joined forces, and they plan to file a class-action lawsuit against the recording industry later this summer to claw back the "$100+ million" that the RIAA "stole."

The recording industry has spent (and continues to spend) millions of dollars on its litigation campaign against accused file-swappers, but if two lawyers have their way, the RIAA will have to pay all the money back. Not content simply to defend Jammie Thomas-Rasset in her high-profile retrial next week in Minnesota, lawyer Kiwi Camara is joining forces with Harvard Law professor Charles Nesson to file a class-action lawsuit against the recording industry later this summer.

The goal is nothing less than to force the industry to pay back the alleged "$100+ million" it has collected over the last few years. Perhaps the RIAA had good reason not to send those settlement letters to Harvard for so long.

Stopping the lawsuits
Ars spoke with Camara on Tuesday as he rode to the airport for the flight to Minneapolis, where he will defend Jammie Thomas-Rasset after only two weeks of preparation. But the time crunch has in no way restricted his vision; Camara says that he is intent on dismantling the entire RIAA litigation campaign by going after its legal underpinnings.

Camara's firm doesn't do easy cases, and even in pro bono cases, "we want to fix a problem for a lot of people, including our client."

That means doing more than getting Thomas-Rasset off without a guilty verdict, and it's why Camara has already gone after the two fundamental pieces of RIAA evidence in these cases.

First up was the evidence from hired investigator MediaSentry, which tracked down IP addresses of file-sharers and provided the only evidence of observed copyright infringement. Camara has argued that MediaSentry was not licensed as a private investigator in Minnesota, that it ran an illegal "pen register," and that its evidence should be barred. Such a move would essentially destroy the RIAA's main evidence of copyright infringement, and it's no surprise that the trade group has pushed back hard.

But Camara goes even further back in the evidence chain. To prove copyright infringement, the RIAA needs evidence of that infringement, of course, but it also needs to prove it owns the copyrights in question. If it can't establish that fact, the case also falls apart.

This sounds like a long shot—surely the record labels did something as basic as register their copyrights?—but Camara tells us that it's not so simple.

"They basically committed a technical screw-up," he says of the RIAA. That's because lawyers provided the court with "true and correct" copies of their copyright registrations (perhaps accurate but not "official), but these are not the "certified copies" required under federal rules of evidence.

The RIAA seemed taken aback by Camara's pretrial complaint and asked the judge in the case to simply take "judicial notice" of the validity of its forms. But, after a telephone conversation on Monday, the judge refused to do that.

He also rejected the RIAA argument that "hey, these forms were good enough for Thomas' first trial, so they're good enough now." The judge pointed out that "the Court's Order granting a new trial in this matter granted an entirely new trial on all issues. The fact that Defendant did not object to Plaintiffs' evidence of registration in the First Trial does not preclude Defendant from putting Plaintiffs to their burden of proof on this issue in the retrial."

The RIAA admitted that "it will be difficult and expensive to now attempt to obtain certified copies from the US Copyright Office in time for trial." Whoops.

Even if the RIAA comes up with the documents, though, Camara still has objections to their contents (or lack thereof). The registrations don't include the actual "specimen," for one thing (in this case the actual sound recording filed with the Copyright Office), so Camara says he has no way to know what was actually filed and whether it truly is identical with what Thomas-Rasset is accused of sharing.

He will also charge that the registrations are simply invalid, since they were all done in the names of the various record labels, not of the artists. But the "work for hire" law under which this was done has been improperly applied in these cases, he says, and the registrations are therefore defective.

Taken together, the two lines of attack on the RIAA's main evidence are an attempt to cripple the recording industry case before it even reaches the question of whether Thomas-Rasset actually "did it." Which is probably just as well, since there is some fairly compelling evidence against her, evidence good enough to secure a guilty verdict the first time around.

Getting the money back
But not even this sort of attack on the RIAA's methods goes far enough for Camara. He tells Ars that he and Harvard Law professor Charles Nesson will file a class-action lawsuit against the industry at some point after the conclusion of the Thomas-Rasset case in an effort to make the labels pay back all monies taken in from settlements with file-sharers.

Or, in Camara's words, he's going to "get the $100 million that they stole." (The RIAA tells Ars that the $100 million figure is inaccurate, and RIAA general counsel Steven Marks indicated in a recent Ars op-ed that the labels had lost money on the campaign.)

The idea behind the suit is that the RIAA has illegally threatened people, using void copyright registrations, and scared them into paying an average of $3,000 or $4,000 apiece to fend off the threat of federal litigation.

Big picture thinking
If all of these arguments weren't enough, the Nesson/Camara tag team have a couple more eyepoppers to make: P2P file-sharing of copyrighted material is fair use, and huge statutory damage awards against noncommercial users are unconstitutional.

Clearly, "thinking small" doesn't interest either man—Nesson has the nickname "Billion Dollar Charlie" for a reason, and it's not surprising to learn that Camara studied with Nesson at Harvard and calls him "the smartest person that I know." Camara, for his part, is a sharp lawyer who was the youngest person ever to enroll in Harvard Law.

As he prepares to fly up to Minnesota today, Camara says, "We're ready for trial." He also says that he plans to win.

wow. this is going to be fun. see the original article for links to more info....
User avatar
TC
Muad'Dib
Muad'Dib
 
Posts: 14627
Joined: 02/01/02, 23:08:48
Location: Sweetknuckle Junction

Re: suit against RIAA - one to watch....

Postby TC on 12/06/09, 08:23:42

Slashdot wrote:News: Judge OK's MediaSentry Evidence, Limits Defendant's Expert
NewYorkCountryLawyer wrote:In Capitol Records v. Thomas-Rasset, the judge has denied the defendant's motion to suppress the MediaSentry evidence for illegality, holding that MediaSentry's conduct did not violate any of the three laws cited by the defendant. The judge also dismissed most of the RIAA's objections to testimony by the defendant's expert, Prof. Yongdae Kim, but did sustain some of them. In his 27-page decision (PDF), Judge Davis ruled that Prof. Kim could testify about the 'possible scenarios,' but could not opine as to what he thinks 'probably' occurred. The court also ruled that, 'given the evidence that there is no wireless router involved in this case, the Court excludes Kim's opinion that it is possible that someone could have spoofed or hijacked Defendant's Internet account through an unprotected wireless access point. Similarly, because Kim explicitly testified that this case does not involve any "black IP space," or any "temporarily unused" IP space ...., he is not permitted to opine at trial that hijacking of black IP space or temporary unused IP is a possible explanation in this case.' Dr. Kim was also precluded from testifying as to whether song files were conspicuously placed in a shared files folder or were wilfully offered for distribution. The judge also precluded him from testifying about Kazaa's functioning, but it was unclear to me what the judge was precluding him from saying, because the offered testimony seemed to relate only to the question of whether the Kazaa-reported IP address precluded the possibility of the device having been run behind a NAT device.

click through for more links & info.
User avatar
TC
Muad'Dib
Muad'Dib
 
Posts: 14627
Joined: 02/01/02, 23:08:48
Location: Sweetknuckle Junction

Re: suit against RIAA - one to watch....

Postby TC on 16/06/09, 10:54:41

sigh, as it turns out this is apparently just going to rehash the same old shit.

Ars wrote:Sony lawyer: $150K damages per song "certainly" appropriate
The Jammie Thomas-Rasset retrial swung into high gear this afternoon as one of Sony Music Entertainment's top lawyers said that $150,000 per song certainly seemed appropriate to him. Thomas again insisted, though, that she didn't infringe any copyrights, and her lawyer calls her one of the music industry's "best customers."

How much cash do the record labels deserve for Jammie Thomas-Rasset's alleged copyright infringement? Defense lawyer Kiwi Camara pressed Sony Entertainment's Gary Leak on that point today, trying to force him to pick a number. Leak refused to be baited. It was "impossible to determine harm" in this case, he said, which is why the labels want statutory damages that can range from $750 to $150,000 per song.

Camara pressed again. "A message should be sent," Leak said. But Camara wanted numbers; what, in Leak's view, did Thomas-Rasset owe Sony?

"You can't tell the jury a number?" he asked aggressively. No, said Leak, it's up to them to decide; the law allows these damages, and we are asking only what's allowed under the law. The jury must pick the award.

Camara wouldn't give it up. He asked if, by Leak's logic, even the maximum $150,000 per song damage award would therefore be an appropriate amount?

Leak at last gave in. "Certainly!" he said in apparent exasperation, milliseconds before an objection from recording industry lawyers put an end to that line of questioning.

Bulldog on defense
Camara showed himself to be an aggressive litigator today as the trial kicked off in earnest—perhaps too aggressive. Leak was the day's first witness, and before his testimony was over, Camara had been reproved twice by Judge Michael Davis.

He had a habit of asking rapid-fire questions or mounting objections before a witness of opposing lawyer had finished speaking, and Davis quickly put a stop to that. "You cannot interrupt opposing counsel," he warned early on, turning the slow burn of his eyes on Camara. Minutes later, a second warning about talking over witnesses—"let's get this straight so we don't have any problems later on," said Davis.

Camara did give a strident opening statement in which he proclaimed Thomas-Rasset's complete innocence of the charges. "They have no evidence that Ms. Thomas did it," he said, pinning his hopes on the fact that the evidence only identifies a particular cable modem and not a particular user.

Thomas-Rasset has 200 CDs that she purchased, Camara said. "Ms. Thomas buys music, she doesn't steal it... She's one of the recording industry's best customers!"

As for the hard drive that was swapped out of her computer just a month after her alleged infringement was detected, Camara says that his client never received the notices about an investigation and replaced her hard drive for a simple reason: her 10-year old son got frustrated playing a game, hit the machine, and its hard drive broke. She took it to Best Buy and they replaced the drive. Situation clarified!

The recording industry case
But it's not, not completely, and the RIAA certainly doesn't buy it. For one thing, Thomas-Rasset was notified twice, first by instant message through KaZaA and once by FedEx package from her ISP Charter. (She claims that she never saw either notice.)

There's also the little matter of the tereastarr@KaZaA username that investigators MediaSentry discovered. Thomas-Rasset turns out to have used the "tereastarr" username for her Charter e-mail address and a host of other online accounts; if she never used KaZaA to download or distribute music, then why did her computer have a KaZaA install with her preferred username? And that hard drive swap-out... the timing is suspicious.

Tim Reynolds, the recording industry's chief litigator in the case, made these points during his own opening statement. "The infringement in this case was substantial—massive," he told the juror, pointing out that the tereastarr@KaZaA share folder contained more than 1,700 songs.

This, he said, is not "sharing like we teach our children."

The recording industry's case unfolded in expected fashion. MediaSentry presented its evidence of having caught the tereastarr@KaZaA user sharing files; the company downloaded complete copies of 11 songs from that user and grabbed the metadata on nearly 2,000 more.

Seeking to head off the argument that these were all just CD rips, MediaSentry's Chris Connelly pointed to metadata in numerous songs that suggested the material had itself been downloaded from the Internet. "Bleeding Edge Ripping Crew," said one. "Uploaded by 0ff$3+," said another.

A Charter representative helped connect the dots, explaining how the ISP could connect the IP address logged by MediaSentry to a particular user account—in this case, to Jammie Thomas-Rasset.

The evidence appears to be quite strong, though Camara is of course right that it cannot prove in some absolute sense that it was Thomas-Rasset behind the keyboard back in 2005. That may not matter; the standard of judgment is more lenient in civil cases, and this defense failed the first time around.

Did the jury follow everything being said? With hours of testimony about MAC addresses, IP addresses, KaZaA, instant messages, share folders, MP3s, metadata, and more, the evidence might well have been difficult to take in. Jurors took notes, of course, but several testified that they could not use computers without assistance, while most others appeared to be casual computer users at best.

Still, the recording industry did a fine job of connecting the threads, always coming back to the link between the IP address, Jammie Thomas-Rasset's cable modem, and her "tereastarr" username.

A repeat in the making?
Perhaps the biggest moment of the day went totally unnoticed by jurors. During Leak's testimony, the recording industry legal team moved to enter Sony's eight copyright registrations into evidence. Camara and his team have tried to question these, hoping to undercut the entire trial, but the RIAA managed to produce certified copies of the documents this morning and the judge ultimately accepted them into evidence.

Once that happened, Camara's big gambles failed to pay out: MediaSentry's evidence was in, the copyright registrations were in, and his proposed fair use defense was out. The case now looks like it will play out last it did last time, with Thomas-Rasset taking the stand to declare that she didn't do it.

And there was evening, and there was morning, the first day. Stay tuned for more reports from Minneapolis Tuesday, when Jammie Thomas is expected to take the stand.
User avatar
TC
Muad'Dib
Muad'Dib
 
Posts: 14627
Joined: 02/01/02, 23:08:48
Location: Sweetknuckle Junction

Re: suit against RIAA - one to watch....

Postby TC on 17/06/09, 09:45:45

Ars wrote:Jammie Thomas takes the stand, admits to major misstep
Jammie Thomas-Rasset took the stand this afternoon and pleaded total innocence. She didn't even know what KaZaA was before this case began! The record industry didn't buy it, in part because of a major problem during her previous under-oath testimony. Welcome to the "Tale of Two Hard Drives."

After the morning's excitement, Jammie Thomas-Rasset took the stand this afternoon during her retrial. She was clad in a black shirt and black pants, the sort of garb appropriate to a hanging. Her testimony wasn't quite a hanging, but it didn't go particularly well for her, either—recording industry lead counsel Tim Reynolds caught her in what appears to have been a fairly significant misstep just before he let her off the stand.

First came the geeks
But before Thomas-Rasset raised her right hand and swore to tell the truth, the whole truth, and nothing but the truth, the court heard from Ryyan Chang Maki, a Best Buy Geek Squad supervisor from the Duluth area. Maki struck a somewhat comic chord as he walked up to the witness box with his skinny black tie, Geek Squad pin, Geek Squad belt badge, and Geek Squad jacket, but his testimony was no joke.

Two weeks after MediaSentry noted the infringement of "tereastarr@KaZaA" (and notified the user via KaZaA instant message that he or she had been caught sharing files) back in February 2005, Thomas-Rasset hauled her Compaq Presario down to the local Best Buy. There was a problem with the hard drive, so Best Buy replaced it under warranty.

That might sound like no big deal until you realize that Thomas-Rasset later provided this new hard drive—and not the one in the machine during the alleged February infringement—to investigators and to her own expert witness. It becomes an even bigger deal when you realize that she swore under oath—twice—that she had replaced the hard drive in 2004 (a full year earlier) and that it had not been changed again since.

Defense lawyer Joe Sibley put the best face on the hard drive replacement, asking Maki to confirm that Best Buy would not have swapped out a hard drive under warranty without checking to see if it worked. Maki agreed that the hard drive had truly been dead when it came in; if Thomas was attempting to cover her tracks, she would have had to break the device herself.

Sibley was less successful when he went over a complete record of Thomas-Rasset's Best Buy purchases for early 2005. It showed many media purchases—every few weeks, Thomas-Rasset had purchased DVDs, video games, and soft drinks (seriously, there were lots of soft drinks on the list). Sibley pointed out what a good customer she was even during the period of her alleged infringement.

The subtext was clear: when someone is getting all their music for free, why would they keep going to Best Buy to purchase CDs?

Unfortunately for Thomas-Rasset, the list did not in fact show this. Between December 2004 and May 2005, your humble correspondent noted only one item on the list that appeared definitively to be a CD—and it was Guitar Hits of the 80s. If anything, the list looked like a buyer's log of someone who was in fact getting music for free but was still buying plenty of DVDs and video games.

An ex-expert
Next up was Eric Stanley, who had been hired by Thomas-Rasset before her first trial to examine the same hard drive that was turned over to recording industry investigators. Thomas-Rasset at first told Stanley that the drive had been replaced in 2004, well before the alleged infringement, so this evidence looked like it would be great for Thomas-Rasset... until recording industry lawyers deposed Stanley and Thomas-Rasset on the same day. At some point during that day, Stanley heard something that led him to examine the physical drive once more during a break. It was then he found the sticker with a manufacturing date—of early 2005.

Stanley realized he was looking at a drive that had likely not even been in the machine when the alleged infringement took place. (He was asked about but had not heard the Best Buy testimony, which would support the idea that the hard drive he examined did not find its way into Thomas-Rasset's machine until early March 2005 when the Best Buy Geek Squad did the drive replacement.)

Jammie speaks
Thomas-Rasset took the witness stand after this. She did not shrink before questioning, at several points telling Tim Reynolds that he was characterizing her earlier deposition remarks incorrectly. In every case, Reynolds opened up the deposition, read out the particular passage, and forced her to admit that yes, she had said those things already under oath.

Most of this sparring was insignificant, but crucial details did emerge. First, we learned that Thomas-Rasset had only the Compaq Presario, that she kept it her bedroom, and that her "tereastarr" Windows account was password protected. (She had another account for guests and for her children.) As for that "tereastarr" name, it has been her only online username for 16 years.

Thomas-Rasset even claimed to have never heard of KaZaA before this case began, despite the fact that the "tereastarr@KaZaA" account has clearly been linked to her cable modem and despite having written a paper on Napster in college—a paper in which she concluded that Napster's original incarnation was legal under US law.

After more than an hour of this, Reynolds pressed his advantage on the hard drive issue. He referred to Thomas-Rasset's two previous depositions, both made under oath, during which she had said that the hard drive replacement had taken place in 2004 and that the drive had not been swapped again since.

Reynolds finally came straight out and suggested that the hard drive that had been turned over to investigators was different from the one that had been in the machine during the alleged infringement.

"That's true," said Thomas-Rasset, and with that, her testimony was over.

The trial could wrap up as soon as tomorrow, said the lawyers for both sides, which means that Thomas-Rasset will likely be called by the defense and will hopefully try to fill in the gaps here. Why was her hard drive story so wrong? Why had the drive been swapped out in the first place? Was she trying to deceive the recording industry?

Why was Thomas-Rasset's password-protected computer running KaZaA in February 2005, and with the "tereastarr" name, if she had not set up the software? And since no one else had the password, and since her kids were young and had a computer account of their own anyway, who might possibly have used a machine in her bedroom to share thousands of songs without her knowledge?

But those are questions for tomorrow. After Thomas-Rasset makes her best case, expect the recording industry lawyers to really bore in on the inconsistencies in her testimony in a way they did not today.

The case against her certainly looks strong, but Thomas-Rasset remains defiant. When asked point-blank today if the KaZaA share folder seen by MediaSentry was hers, she said clearly, "It is not mine."

A matter of equity
Whatever the merits of the case, it was certainly pathetic to see this young woman's life dragged out and put on display in the harsh glare of a federal court. E-mail addresses, her phone number, a floor plan of her apartment, her Match.com account, her Best Buy purchase history, screenshots of her Windows PC—all of it displayed on flat-panel screens, blown up for and scrutinized by the jury—her ex-boyfriend on the witness stand, discussions about her education, career, and CD collection, experts sifting through her hard drive...

Did she do it? That's for the jury to decide. But the bigger question is whether the process itself—the threat of life-altering damage awards, the hundreds of thousands of dollars in legal fees, the time and exposure of a federal trial—is truly a proportional, equitable response to online copyright infringement?

Not even the judge who must preside over this case believes that the answer to that question is "yes." Writing an unusually pointed order granting Thomas-Rasset a new trial last year, Judge Michael Davis, Chief Justice of the Minnesota District Court, wrote these extraordinary words:
While the Court does not discount Plaintiffs’ claim that, cumulatively, illegal downloading has far‐reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs—the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000—more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent...

The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer‐ to‐peer network cases such as the one currently before this Court. The Court begins its analysis by recognizing the unique nature of this case. The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts... The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit...

Despite his opinion, Davis may well preside over another guilty verdict this week; if so, he won't be able to throw it out thanks to a "making available" jury instruction this time around—a fact that perhaps accounts for his perpetual grumpy frown during the trial.
User avatar
TC
Muad'Dib
Muad'Dib
 
Posts: 14627
Joined: 02/01/02, 23:08:48
Location: Sweetknuckle Junction

Re: suit against RIAA - one to watch....

Postby TC on 18/06/09, 12:50:11

Ars wrote:homas testimony ends with tears, anger, Swedish death metal
Jammie Thomas-Rasset took the stand for the final time today in a tearful piece of testimony in which she disparaged an opposing witness, attacked the record industry, claimed "extortion," and finally offered some alternative scenarios for what might really have happened.

The Jammie Thomas-Rasset file-sharing retrial wrapped up today ahead of schedule after the defense called only a single witness—Jammie Thomas-Rasset—and the jury finally heard some alternative scenarios for the facts in the case.

The jury was also treated to an extraordinary display as Thomas-Rasset said that a distinguished computer science professor was brought in to give "false testimony" against her (there were gasps in the courtroom and an immediate objection from the record companies at this), then broke down crying, detailed the "complete nightmare" the case has made of her life, and claimed that the labels initially "tried to extort $5,000 from me."

Her testimony, which also featured such memorable phrases as "I never downloaded Morbid Angel's 'World of Shit'" and "I didn't even know there was a Swedish death metal genre," was certainly spellbinding. But did it sway the jury?

What might have happened instead
Thomas-Rasset was the only witness called by the defense. Her direct examination was handled by defense lawyer Joe Sibley, who opened with a set of effective questions asking her about inconsistencies in the case.

Thomas-Rasset had said twice in depositions before trial that the hard drive in her computer had been replaced in 2004, long before the alleged infringement in February 2005. She had turned this hard drive over to experts, making clear that it was the drive in the machine at the time of the alleged infringement. That turned out to be false—the drive was replaced in March 2005, only weeks after MediaSentry detected sharing from tereastarr@KaZaA, and the experts therefore examined a clean drive that had little relevance to the infringement claim.

The recording industry is convinced it has caught Thomas-Rasset in a major deception, and lawyer Tim Reynolds yesterday forced her to concede that the drive she turned over was different from the one in her computer in February 2005.

Sibley opened by asking directly, "Are you lying about the hard drive?"

Thomas-Rasset said no. Her explanation? That she had consistently been off by a year during both depositions. No reason for this was given, but the implication was that it had been a mere mistake; the depositions had taken place two years after the alleged infringement, and memories can be fuzzy.

Why had she not corrected her sworn deposition testimony and interrogatories when she learned the truth? She thought deposition changes cost money, and she didn't know that interrogatory answers could later be altered, she said.

Thomas-Rasset also asked the jury why she would have hired her own forensic examiner to look at the drive if she was guilty? (To which the obvious rejoinder might be that since she handed over a completely different hard drive, she therefore had little to fear from an examination of its contents.)

What about the KaZaA instant message that RIAA investigators sent her in February 2005? She had never seen such a message. The fact that her hard drive broke two weeks later was mere coincidence; her oldest son, who was 10 at the time, got frustrated when a computer game locked up and he hit the tower. After that the computer wouldn't boot, and Best Buy techs verified that the drive was in fact dead before replacing it in early March 2005.

What about the letter from Charter in April 2005 telling her that it had received a subpoena related to her account—a letter sent by FedEx, not through the postal service. Thomas-Rasset said she had thrown it out without reading the contents, thinking it to be some updated privacy policy or terms of service document.

What about the letter received from the law firm of Shook, Hardy, and Bacon in August 2005? Thomas-Rasset did read that one, called the number, and was told that it would be $5,000 to settle. The operator helped her look for KaZaA on her machine, but Thomas-Rasset says that she couldn't find it. Of course she couldn't; the hard drive had been replaced in March 2005, but Thomas-Rasset never brought this up when speaking with the recording industry. Why not? Because she thought the letter from Shook, Hardy, and Bacon was referencing some recent event, she said, something from the last month or six weeks.

Then Sibley asked a key question: did Thomas-Rasset have any alternative explanations for what had happened on that night in February 2005? She did—the sharing might have been done by her kids (10 and 8 at the time) or her ex-partner Justin.

These suppositions were bolstered by Sibley's decision to walk through the long set of screenshots that MediaSentry grabbed from Thomas-Rasset's computer that night in February 2005. It contained more than 1,700 songs, but a good number of these were heavy metal and industrial tracks that Thomas-Rasset said she hates. Covenant, Morbid Angel, Wumpscut, Ministry, VNV Nation—she disliked their music, but noted that Justin had CDs from many of these bands and enjoyed the style.

Sibley also pointed out that many of the songs in that KaZaA share directory were songs that Thomas had on CD. But Thomas only ripped her music to the computer in WMA format, and these were all in MP3.

Her computer had a password-protected guest account that both Justin and the kids could access, however, and she knows that the kids used Yahoo Launchcast to play music. Launchcast rips by default into MP3, not WMA.

So perhaps Justin did it, or maybe one of the kids. Thomas-Rasset volunteered that her oldest son, 10 at the time, had been caught looking at a porn site with a friend at that time and had been using computers since he was four. Maybe he did it?

What about the damning "tereastarr@KaZaA" username; who else would have used that? Thomas-Rasset testified that "Terea Starr" was the name she had picked out when she was first pregnant, and it would have been her child's name if that child had been a girl. Though it has been her sole Internet username for 16 years, she said it was also well-known to her kids and to Justin.

Also, Justin has stayed in the home for a week at a time on several occasions when Thomas-Rasset had to travel. He watched the kids—maybe he did it then? (None of these dates overlapped with alleged infringement, though, but they came close.)

After offering all these alternative possibilities, Thomas-Rasset was given free rein to tell the jury how the case had affected her. That brought the tears and the accusations of false witness directed against Dr. Doug Jacobson—a shocking claim to make, given what actually happened, and one that the judge immediately ordered stricken from the record.

Thomas-Rasset's continued tearful testimony was brought to an end by a second record objection that she wasn't answering any questions as she proceeded into a disquisition about how the recording business sues children and tried to extort money from her.

Cross, in more ways than one
Tim Reynolds, lead counsel for the plaintiffs, cross-examined her next. Though genial throughout the trial, this time around there was an undercurrent of anger. He charged repeatedly that Thomas-Rasset was saying several of these things for the first time ever here in court and had never mentioned them over the last three years of the case.

He forced her back to previous deposition testimony and reminded her of her own words, though Thomas-Rasset did an effective job of sparring with him. She made it clear that plaintiffs had not in fact asked certain very narrow questions, such as whether there was a "possibility" that others had done this instead. Plaintiffs had asked her if she could accuse anyone else, but she had said no on multiple occasions since she didn't "know" if her kids or Justin had done it.

Reynolds also forced her to admit that she had never seen Justin playing music on her computer and that Justin had moved out of her apartment in mid-2004 (though he returned for the occasional week-long babysitting session).

And with that, the case ended. Certain questions remained—could Justin or the kids in fact have installed KaZaA using a non-administrative guest account, for instance?—but the Thomas-Rasset team has clearly decided on a simple strategy. All that stuff about challenging the copyright registrations has fallen by the wayside (the registrations were finally admitted without incident this morning). Fair use has been disqualified as a defense. Instead, Thomas-Rasset said repeatedly on the stand that even if she accepted all of the plaintiffs' evidence, and even if her computer was the one used to infringe copyrights, there remains no direct evidence that she was the one doing it.

Ars spoke to the defense team briefly after the trial, and they expressed confidence that the jury will not in fact return a guilty verdict based on the facts of the case. The standard of proof in civil cases is a mere preponderance of the evidence, so the key question from today was just how much doubt Thomas-Rasset was able to sow in the jury's mind.

We'll know Thursday, when closing arguments are made and the jury is packed off for deliberations. If this case proceeds like the last one, we may have a verdict by the end of the day.

morbid angel, eh? this is interesting, as i've heard people say that file sharing for metal is safe as no one gives a shit about death/black/etc metal. of course, this is useless without the complete list - maybe there was also madonna, who knows?
User avatar
TC
Muad'Dib
Muad'Dib
 
Posts: 14627
Joined: 02/01/02, 23:08:48
Location: Sweetknuckle Junction

Re: suit against RIAA - one to watch....

Postby TC on 19/06/09, 08:37:11

WHAT THE FUCK??

Ars wrote:Thomas verdict: willful infringement, $1.92 million penalty
Jammie Thomas-Rasset's federal retrial concluded today as a jury found her liable for willful copyright infringement, awarding the record labels nearly $2 million in damages.

A new lawyer, a new jury, and a new trial were not enough to save Jammie Thomas-Rasset. In a repeat of the verdict from her first federal trial, Thomas-Rasset was found liable for willfully infringing all 24 copyrights controlled by the four major record labels at issue in the case. The jury awarded the labels damages totaling a whopping $1.92 million. As the dollar amount was read in court, Thomas-Rasset gasped and her eyes widened.

Kiwi Camara, Thomas-Rasset's lead attorney, spoke briefly after the trial. He told reporters that when he first heard the $80,000 per song damage award, he was "angry about it" and said he had been convinced that any liability finding would have been for the minimum amount of $750 per song.

As for Thomas-Rasset, she appeared shaken by the verdict but didn't blame the jury. "They did their job," she said, "I'm not going to hold it against them." She added, though, that the recording industry would never collect the money. "Good luck trying to get it from me... it's like squeezing blood from a turnip."

The recording industry lawyers, though clearly pleased, had no desire to showboat this one. The massive damage award, which increased from $9,250 per song in the first trial to $80,000, might sounds like a "win," but will probably stoke grassroots anger against the industry's campaign... if the music business tries to collect. There are hints that it might not.

Spokesperson Cara Duckworth of the RIAA, who attended the trial, told reporters afterwards, "Since day one we have been willing to settle this case... and we remain willing to do so." The industry appears to be doing everything it can not to appear vindictive in these cases, though Duckworth refused to discuss any details of what a proposed settlement might look like.

Camara acknowledged the settlement offer and said that his side would certainly investigate it, but he made clear that he intends to file numerous motions if Thomas-Rasset wants to continue the fight. Motions on the constitutionality of such massive damages and other issues can still be filed with the judge, and then there's the entire matter of an appeal.

Thomas-Rasset sounds inclined to fight on. The case was "one for the RIAA, not the end of the war," she said.

As for Camara, he intends to press ahead with his class-action lawsuit against the recording industry, in which he will take up the daunting task of trying to claw back all the money that the recording industry has collected in the course of its legal campaign to date.
Not good enough

A vigorous defense from Kiwi Camara and Joe Sibley was not enough to sway the jury, which had only to find that a preponderance of the evidence pointed to Thomas-Rasset. The evidence clearly pointed to her machine, even correctly identifying the MAC address of both her cable modem and her computer's Ethernet port. When combined with the facts about her hard drive replacement (and her failure to disclose those facts to the investigators), her "tereastarr" username, and the new theories that she offered yesterday for the first time in more than three years, jurors clearly remained unconvinced by her protestations of innocence.

Camara suspects that the jury thought Thomas-Rasset was a liar and were "angry about it," thus leading to the $80,000 per-song damages.

The case is a reminder that in civil trials, simply raising some doubt about liability is not enough; lawyers need to raise lots of doubt to win the case, and Camara and Sibley were unable to do so here.

The jury found Thomas-Rasset's conduct to be willful, which means that statutory damages under the Copyright Act can range from $750 per infringement up to $150,000. In his closing statement, defense lawyer Joe Sibley made clear that even the minimum award would run $18,000 (24 songs x $750 = $18,000), an amount that he said was unfair and crippling to Thomas-Rasset. The jury decided that the per-song penalty would be $80,000, for a total damage award of $1.92 million, over $1.7 million more than the award in her first trial.

unbelievable. i mean, really. i know they had their requirements for this jury people that aren't really computer-strong, hoping to get them to relate to the defendant on a personal level, but that was clearly the wrong move. they need total geeks on the jury. i'm no lawyer, but you mean to tell me that this jury has no idea that just because you have the hardware address of the modem doesn't mean that there is only one computer that can ever connect to the internet through it. i am in total fucking awe of this and the obvious stupidity of the jury. who convinced them that $80k/song was reasonable?? what fucking planet is this?
User avatar
TC
Muad'Dib
Muad'Dib
 
Posts: 14627
Joined: 02/01/02, 23:08:48
Location: Sweetknuckle Junction

Re: suit against RIAA - one to watch....

Postby Draesk on 19/06/09, 09:46:52

A jury of actual human beings seriously decided that 24 songs are worth $1.9M? Seconding the line of thought that suggests this trial didn't take place on Earth, or any colony of.
User avatar
Draesk
Stilgar
Stilgar
 
Posts: 1887
Joined: 09/07/03, 14:57:38
Location: 11011000

Re: suit against RIAA - one to watch....

Postby darkness on 20/06/09, 10:36:34

I don't fault the jury. From a legal standpoint, this was the proper verdict. Trying to say more than one computer can connect through a modem doesn't fly, as it's still her house and her account. Unless she lets random strangers come in and use her internet, the buck stops with her. She did indeed break the law. What really needs to happen is the laws themselves need to change. Repealing the DMCA would be a good first start.
Just cut them up like regular chickens
User avatar
darkness
Øne øf Us
Øne øf Us
 
Posts: 5087
Joined: 27/02/02, 00:57:45
Location: In Heaven

Re: suit against RIAA - one to watch....

Postby TC on 24/06/09, 14:37:46

Ars wrote:Richard Marx (!) attacks RIAA after $1.92M Thomas verdict
Jammie Thomas-Rasset was held liable to sharing 24 songs, including one by pop crooner Richard Marx. But the lawsuit wasn't done in Marx's name—this week, he called out the recording industry's "greedy actions."

There was a time in my life during which I left Richard Marx's "Paid Vacation" album in my stereo system for weeks at a time. This was not because I felt a spiritual craving for the music so strong that only repeated listenings would satisfy. No, it was the single worst CD I could dredge up out of my music collection, and I thought it might be effective as alarm-clock music. Hearing it, would I not have to rise at once to shut the disc off?

Turns out that it was just too inoffensive, too polished, too saccharine to yank me from my slumbers, but Richard Marx this week has partially redeemed himself for the album's creation (and for the $11 I must have spent on it back in high school). Marx issued a strong statement against the "greedy actions of the major labels" after hearing about the $1.92 million Jammie Thomas-Rasset verdict.
Marx wrote:As a longtime professional songwriter, I have always objected to the practice of illegal downloading of music. I have also always, however, been sympathetic to the average music fan, who has been consistently financially abused by the greedy actions of major labels. These labels, until recently, were responsible for the distribution of the majority of recorded music, and instead of nurturing the industry and doing their best to provide the highest quality of music to the fans, they predominantly chose to ream the consumer and fill their pockets.

So now we have a "judgment" in a case of illegal downloading, and it seems to me, especially in these extremely volatile economic times, that holding Ms. Thomas-Rasset accountable for the continuing daily actions of hundreds of thousands of people is, at best, misguided and at worst, farcical. Her accountability itself is not in question, but this show of force posing as judicial come-uppance is clearly abusive. Ms. Thomas-Rasset, I think you got a raw deal, and I'm ashamed to have my name associated with this issue.

Richard Marx's opinion carries no legal weight, of course, though it's notable that his song "Now and Forever" was one of the 24 tracks for which Thomas-Rasset was ordered to pay. The track was actually played in court to verify that it was the same one retrieved from the tereastarr@KaZaA share folder—and one of the trial's few moments of levity came when the judge asked why the playback of such a terrific song had been cut short? (He was apparently serious, preferring Marx's smooth acoustic guitar to the No Doubt track that preceded it.)

Who needs to be liked?
In the wake of the RIAA win, the organization's legendarily poor public image somehow got even worse. Chicago Sun-Times music critic Jim DeRogatis called the Thomas-Rasset ruling "infamous as one of the most wrong-headed in the history of the American judicial system—not to mention that it will forever stand as the best evidence of the contempt of the old-school music industry toward the music lovers who once were its customers."

Columnist Robert X. Cringely, riffing on the Journey tracks that Thomas-Rasset now owes $80,000 apiece for, headlined a recent column, "Don't stop believing in the RIAA's capacity for evil." Clever.

How has the RIAA responded to the $1.92 million verdict? "Clinical detachment" is probably not the best response in the emotional aftermath of the case, but that's exactly what we got today from the RIAA's Joshua Friedlander, who compared the Thomas-Rasset jury to a really helpful focus group.

"Last week we got a chance to listen to one of these groups outside the usual circumstances," he wrote. "It wasn't a research project, and it wasn’t by sitting behind a two-way mirror... This group of 12 Minnesotans showed us that, despite the protestations of some pundits who suggest that the digital world should resemble some kind of new wild west, the majority understands and believes that the same laws and rules we follow every day apply online. Not just in theory, but in practice. Another group of 12 people presented with similar questions said the same thing two years ago. That makes a sample size of only 24, but it's certainly enough to learn from."
User avatar
TC
Muad'Dib
Muad'Dib
 
Posts: 14627
Joined: 02/01/02, 23:08:48
Location: Sweetknuckle Junction

Re: suit against RIAA - one to watch....

Postby TC on 29/06/09, 15:44:31

here comes the second volley....

Ars wrote:Play it again: Tenenbaum team tries to toss MediaSentry evidence
The year's second major P2P trial kicks off in one month, and Harvard Law professor Charles Nesson wants to mount some of the same attacks that failed in the first case. Nesson argues that all of the RIAA's MediaSentry investigative evidence must be banned from trial, as the company violated wiretap law and private detective licensing law.

It didn't work in the Jammie Thomas-Rasset file-sharing case, but the lawyers for accused seven-song-swapper Joel Tenenbaum are trying the same trick: asking for all investigative evidence from MediaSentry to be tossed.

Oh, and they're (again) accusing the RIAA lawyers of violating "the ethical rules governing our profession on an unprecedented scale."

We're not sure this is the best approach coming from Charlie Nesson, the Harvard Law professor who has already been accused of breaking the law by the federal judge overseeing the case, but if there's one thing we've learned from covering the case, it's that Nesson plays from his own rulebook... and call witnesses from his own family.

Attacking MediaSentry
Kiwi Camara, the lead lawyer defending Jammie Thomas-Rasset, is a former Nesson pupil who plans to file a class-action lawsuit against the RIAA later this summer. He has now joined his one-time mentor on the Tenenbaum case, which goes to trial at the end of the July.

This week, Camara and Nesson filed a joint brief asking for MediaSentry's evidence against their client to be tossed.

"MediaSentry collected this evidence in violation of federal and state criminal statutes that restrict wiretapping and require that private detectives be trained and licensed," they write.

Then, referencing the massive Thomas-Rasset judgment, they add, "In the first recording-industry prosecution to go to trial, the jury returned a verdict of $1.92M, or $80,000 per song for 24 songs. We submit that, with stakes this high, the federal courts should make clear to the world that the kind of gross abuse of federal process that we have seen in the last seven years will never again be permitted."

The reasons to dismiss the evidence are nearly identical to those presented by Camara in the Thomas-Rasset case—all of which were rejected by Minnesota federal judge Michael Davis.

Camara and Nesson claim that MediaSentry broke state and federal wiretap laws simply by recording IP packets (and the IP addresses on them) sent to their machines. This is, to say the least, a novel interpretation of "wiretapping," but the lawyers have anticipated the objection.

"And it is no defense to say that MediaSentry merely recorded data (TCP/IP packets) sent to it," they write. "Packets on arrival but before conversion to human-readable form are protected and may not be tapped, just like a tap in the receiver of a phone is no less objectionable than a tap on the main line."

This argument sounds about as likely to succeed as my attempt to build an iPhone in my garage out of spare parts from my lawnmower, but Camara and Nesson also charge that MediaSentry violated the Massachussetts private detective law by not registering as an investigator. This argument, also raised (and rejected) in the Thomas-Rasset case, may have more success this time; that's because Massachussetts has already gotten involved in the matter.

In 2008, the State Police Certification Unit contacted MediaSentry parent SafeNet and informed the company that it was "advertising and operating a Private Detective company" and that review of state records indicates that the company is "not licensed to conduct investigations" in the state. The company apparently continued to operate without a license even after receipt of the letter.

The state's letter was cited by Nesson and Camara in their brief this week.

Of course, this issue won't pass without a fight; if the evidence is thrown out, the main evidence in the case would be gone. Nesson and Camara say that if that happens, they will move for a directed judgment, and the case would probably be over. MediaSentry generally points out that it does not operate in the jurisdictions where it has been attacked, and it says it not conducting any functions that are reserved to private investigators; instead, it simply gathers publicly-available from the various P2P networks it monitors.

Putting family on the witness stand
If Nesson has had his fill of RIAA lawyers, the feeling appears to be mutual. After Nesson dragged his heels on filing proper expert witness disclosures for John Perry Barlow, EFF founder and former Grateful Dead lyricist, Nesson failed to get the proper paperwork in on time. What was submitted doesn't appear to be well-crafted, either.

Writing in a brief this week, recording industry lawyers said, "If allowed, Barlow claims he would testify that (a) the Internet and peer-to-peer technology 'allow us to do that which we, as humans, fundamentally need to do: share art,' (b) 'the music industry will never be endangered,' and (c) 'the recording industry must evolve.' His report, however, fails to offer any basis or reason for these opinions other than his 'personal experiences' and his 'position as a public intellectual,' fails to identify a single source of data or other information considered, and fails to list Barlow’s purported qualifications."

They want Barlow's testimony excluded—and they aren't pleased about other witnesses Nesson hopes to call. They object to "defendant's recent disclosure of a new proposed 'expert' witness in this case, Wayne Marshall, who appears to be the son-in-law of defense counsel."

The Wayne Marshall in question is the (former) Brandeis music professor and reggae enthusiast who is married to Nesson's daughter Rebecca. Marshall has been the Florence Levy Kay Fellow in Ethnomusicology at Brandeis University since 2007, a position that was not converted into a full professorship this year (a decision that led to the web-based "Save Wayne" campaign"). He moves on to an MIT fellowship position in the fall.

What might Marshall testify to? His research project proposal gives us a clue. Called "Brave New World Music: Making and Sharing Music in a Peer-to-Peer World," Marshall hopes to bring together "theories, methods, and data from music and sound studies, media and cultural studies, digital anthropology, sociology, and work across the 'digital humanities' more generally" in order to "reevaluate the question of 'world music' in light of the remarkable technological and discursive shifts represented by socially networked, online exchanges of music."

But it's very (very) late in the case to be submitting new witnesses, Marshall doesn't appear to be an expert on the actual issues here (copyright infringement, computer and network security, etc.), and the familial link between Nesson and Marshall has already caught the record labels' attention. We would be surprised to see Marshall get the chance to testify at trial.

The labels also want one more chance to question Joel Tenenbaum before trial "regarding his recently disclosed hard drive and CDs, as well as facts regarding the recent posting of sound recordings on Megauploads.com."

This last bit is in reference to the bizarre fact that someone from the Tenenbaum legal team uploaded the songs at issue in the case to a file-sharing service... and Nesson then posted that information publicly on his blog. Unfortunately for the labels, Tenenbaum will be on vacation in Venice until early July, so they have moved the deposition date back to accommodate the trip. At least Tenenbaum has something to look forward to the day after he returns home.

Can the case get any weirder? We've asked that before, and the answer has always been "yes," so we're quite sure that the trial itself won't be dull. But Judge Gertner has already told Nesson that her "indulgence it at an end," and she may start clamping down on the case's numerous irregularities. We should know how she rules on several of these motions early next week.

The trial begins on July 27.
User avatar
TC
Muad'Dib
Muad'Dib
 
Posts: 14627
Joined: 02/01/02, 23:08:48
Location: Sweetknuckle Junction

Re: suit against RIAA - one to watch....

Postby TC on 30/06/09, 22:32:44

46cfd5b5c1d229b500624f4aedd1a447.jpg
You do not have the required permissions to view the files attached to this post.
User avatar
TC
Muad'Dib
Muad'Dib
 
Posts: 14627
Joined: 02/01/02, 23:08:48
Location: Sweetknuckle Junction

Re: suit against RIAA - one to watch....

Postby TC on 28/07/09, 13:52:11

Ars wrote:Tenenbaum trial begins with "tortured" jury selection
The trial of accused file-swapper Joel Tenenbaum finally got underway today in Boston, a mere eight hours after the judge tossed Tenenbaum's proposed "fair use" defense. Not surprisingly, Harvard Law's Charles Nesson kept things interesting, asking prospective jurors what they thought of his turtleneck—and of decriminalizing pot.

The Joel Tenenbaum case opened today with a full, slogging day of jury selection, the defense reeling from Boston federal judge Nancy Gertner's last-minute decision to remove Tenenbaum's proposed fair use defense from the closely watched copyright case.

Tenenbaum's hopes of letting the jury determine whether his acts of alleged infringement constituted fair use under the Copyright Act were dashed by an order e-mailed to the parties this morning at 1:37 am, granting the record label plaintiffs' motion for partial summary judgment on the fair use defense. Judge Gertner’s order, handed down less than eight hours before trial got under way, said the fair use defense proposed by Tenenbaum failed because it would "shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment" and would "swallow the copyright protections that Congress has created."

The court's sound rejection of the fair use defense leaves Team Tenenbaum with an extremely steep uphill climb on the basic issue of whether he will be found liable for committing the acts of copyright infringement of which he stands accused, namely downloading and sharing thirty songs using the KaZaA peer-to-peer network.

Tenenbaum has repeatedly admitted, including under oath at his two days of deposition, that he used KaZaA to download and share songs, and the record labels have mountains of evidence to confirm what Tenenbaum admits: testimony and computer forensic evidence from MediaSentry (anti-piracy investigators retained by the plaintiffs), Cox Communications (Tenenbaum’s ISP on August 10, 2004, the date of the detected sharing), and their expert, Dr. Douglas Jacobson of Iowa State University. Indeed, given Tenenbaum’s own admissions, Judge Gertner questioned today whether the MediaSentry testimony was even needed for the plaintiffs to prove Tenenbaum’s infringement.

The real action will be in determining the amount of damages, which could range from a low of $750 per work all the way up to $150,000 per work—potentially $4.5 million—in the case of willful infringement. Judge Gertner said again today that, should the jury award statutory damages, she intends to hold a separate post-trial hearing to determine whether any such award is so excessive as to violate the US Constitution's guarantee of due process of the law.

Day of torture
Nearly the entire day was consumed with what Gertner termed "one very long, very tortured day of jury selection." It started with jurors filling out forms asking basic biographical information, as well as their, and their friends' and family members', experiences with the use of peer-to-peer software like KaZaA and Limewire to obtain and distribute music. After the attorneys had the chance to sift through the completed forms, the judge, attorneys, clerks, and spectators all moved to the adjacent courtroom, while the potential jurors waited in the original courtroom to be called next door for their seriatim grillings by each side, as well as by Judge Gertner herself.

The dragged-out process stood in stark contrast to that conducted by Minnesota federal judge Michael Davis, who presided over the recent retrial of Jammie Thomas-Rasset, conducted voir dire en masse, and wrapped the whole thing up in about an hour and a half.

The questions from label attorney Matt Oppenheim were conventional: "Do you have an opinion about record companies?" "Have you heard about the record companies' suits against individuals accused of copyright infringement?" "Do you believe they are justified in enforcing their rights against those who infringe their works on the Internet?"

The questions from Tenenbaum's lead counsel, Harvard Law School professor Charles Nesson, were, to no one's surprise... not so conventional. Nesson began his questioning of many of them by asking whether they were "offended" by his decision to wear a Steve Jobs-esque black turtleneck (with blazer) in lieu of a business suit. "I’m a teacher in my normal life," explained Nesson. "This is what I wear every day."

Nesson also questioned potential jurors about their views on marijuana decriminalization, even asking one woman how she would feel if she heard during the trial about Nesson's own (admitted) pot-smoking. She said she didn’t mind, though Judge Gertner quickly made clear that the trial would not delve into that subject.

The parties sparred repeatedly about whether the half-dozen or so potential jurors who admitted to using peer-to-peer networks to obtain music without paying for it should be excluded from the jury for cause. Judge Gertner repeatedly sided with the plaintiffs, who objected to the presence on the jury of those who essentially admitted to the same activity of which Tenenbaum, a 25-year-old Boston University graduate student, stands accused. Nesson complained that removing such p2p users from the juror pool deprived Tenenbaum of his constitutionally guaranteed right to a trial by a jury of his peers.

"By doing that, she excluded a whole generation," Nesson lamented in a post-voir dire interview. But, he added, "I think this is a jury I can talk to."

Also excluded from the jury was the labels' worst nightmare: a 40-ish woman who had done graduate studies in theology and library sciences and said she "definitely ha[s] a bias against record companies. Information should be free." Team Tenenbaum was also able to toss its least-favorite juror: a 60-ish man who proclaimed that "downloading music is almost like stealing," and added, "If you go on the Internet and get it, you should have to pay for it." Nesson accused him of "bias," and Judge Gertner—over the objection of plaintiffs' counsel, who argued that the man was stating nothing more than that people should obey the law—expressed concern about the "moral opprobrium" he was attaching to copyright infringement.

The process ultimately resulted in a jury of five men and five women, all drawn from Boston's suburbs. According to a list provided by the court (following a friendly in-chambers conference among Judge Gertner, counsel from both sides, and your humble correspondent), the jury consists of the following:

1. Certified nurse assistant; F; Somerset
2. Pet trainer/secretary; F; Plymouth
3. Physician; M; Wayland
4. Bank administrator; F; Quincy
5. Registered nurse; F; Westford
6. Plant quality assurance manager; F; Mansfield
7. Associate director; M; Milton
8. Salesman; M; Milton
9. Medicinal Chemist; M; Wakefield;
10. Business development manager; M; Tewksbury

Exploding Styrofoam and Necker Cubes
Opening statements begin Tuesday morning at 9:00 am. Plaintiffs asked for 20-30 minutes, Nesson for 40. Nesson gave a brief preview of his opening, at which he plans to use demonstratives, including a Styrofoam box that he said will be used "to show the difference between atoms and bits, which is central to our case."

"We will object to the exploding Styrofoam," deadpanned plaintiffs' attorney Tim Reynolds, though his plea was rejected by Judge Gertner, even as she cautioned Nesson that this was to be an opening statement, not an argument. Nesson also said he plans to display a poster of a “Necker Cube." Asked why, he would only say, "Tune in tomorrow."

And we shall, to hear opening statements and the plaintiffs' first three witnesses: Sony attorney Wade Leak (who famously testified at the Thomas-Rasset trial that an award of $150,000 in statutory damages per work was "absolutely" appropriate), Chris Connelly of MediaSentry, and Mark Matteo of Cox Communications.

Judge Gertner promised that the jury would get the case by Friday, though deliberations could potentially stretch into next week.
User avatar
TC
Muad'Dib
Muad'Dib
 
Posts: 14627
Joined: 02/01/02, 23:08:48
Location: Sweetknuckle Junction

Re: suit against RIAA - one to watch....

Postby TC on 29/07/09, 12:59:25

Ars wrote:Tenenbaum P2P trial features prophetic warnings of doom
True to his word, Harvard Law's Charles Nesson brought both Styrofoam and a "Necker Cube" diagram to court for his opening statement this morning, but the real drama was just beginning. The second day of the Joel Tenenbaum file-sharing trial featured Tenenbaum's own father taking the stand, recounting how he had warned his son about P2P use as far back as 2002.

Joel Tenenbaum downloaded and distributed thousands of songs without paying for them, and continued to do so for years after he was sued by the major record labels for this very activity, charged Tim Reynolds, the record labels’ lead attorney, as the trial of the 25-year old physics grad student got underway in earnest today in a Boston federal courtroom.

"We are here to ask you to hold the defendant responsible for his actions," said Reynolds, a partner in the Boulder, Colorado office of Holme, Robert & Owen. "Filesharing isn't like sharing that we teach our children. This isn't sharing with your friends."

But, countered his attorney, Harvard Law School professor Charles Nesson, Tenenbaum was no different from countless others in his generation who turned to the Internet for free music when Napster made it possible back in 1999. Nesson made no effort to deny that Tenenbaum had engaged in the activity of which he stands charged as the second file-sharing defendant ever to face trial: downloading and distributing 30 songs whose copyrights are owned by the four major record labels.

"Everyone could download [songs] for free. And millions and millions did. Joel was one of those millions," he told the five men and five women of the jury, the youngest of whom appears to be about 30. "In his way he's like every other kid. There's nothing that distinctive about Joel."

Nesson’s opening statement veered at times from “statement” (permissible) into "argument" (verboten), though it was always intriguing. Nesson crumbled a Styrofoam box into hundreds of bits to illustrate albums breaking into individual songs, then displayed a poster of the now-famous "Necker Cube" optical illusion, asking the jury to consider the case from two varying perspectives.

"The truth can very typically be seen from two different points of view," said Nesson.

Tenenbaum’s hopes of letting the jury determine whether his acts of infringement constituted fair use under the Copyright Act were dashed by a last-minute order from Judge Gertner, granting the plaintiffs' motion for partial summary judgment on the fair use defense. Her order, e-mailed to the parties at 1:37am on the morning of trial, said the fair use defense proposed by Tenenbaum would "shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment" and would "swallow the copyright protections that Congress has created."

Opening statements
Reynolds walked methodically through the evidence that, he says, proves Tenenbaum downloaded and shared the 30 songs on which the labels are seeking damages that could potentially reach $150,000 per work. Investigative firm MediaSentry detected KaZaA user "sublimeguy14@KaZaA" at the IP address 68.227.185.38 sharing 816 files at 12:49am on August 10, 2004. The ISP Cox Communications revealed through subpoena that 68.227.185.38 was assigned to a "J. Tenenbaum" in Providence, Rhode Island. And forensic examination of Tenenbaum's hard drive provided additional evidence that Tenenbaum used KaZaA and other peer-to-peer programs for years, even after he was served with the complaint in August 2007, said Reynolds.

But, he noted, the record labels hardly need all the forensics from MediaSentry and from Cox and from their expert, Iowa State University computer scientist Doug Jacobson, because they have something potentially better, and likely much more understandable to the jurors: Tenenbaum's own admissions at his two days of deposition that he used KaZaA to obtain music. Plaintiffs plan to call Tenenbaum to the stand, possibly as early as tomorrow.

Tenenbaum "tried to blame others for his conduct but continued to infringe long after he was caught, and even during the course of this lawsuit," said Reynolds, also the lead attorney in the recording industry’s $1.92 million victory over Jammie Thomas-Rasset in Minnesota last month. "He didn't take responsibility," and initially tried to pin blame on his friends, his sisters, a foster child living with his family, and even a "burglar."

And Tenenbaum's actions caused real harm, contended Reynolds. "The exact amount of harm is incapable of exact proof. But make no mistake about it: defendant's activities caused significant harm." Illegal downloading and distribution caused "significant lost sales, and reduced the labels’ ability to develop new artists," he said, emphasizing the impact on less-monied players in the music industry, including studio engineers and backup musicians.

Nesson's opening statement told a completely different story, of a digital generation that embraced peer-to-peer networks when they arrived on the scene and shouldn't be punished for sticking with them even as iTunes and numerous other legal, paid alternatives became available. "They listen to music with the technology available, and enjoy it with the technology available," he said of the "digital natives" studied by John Palfrey, the Harvard Law School professor whose proposed expert testimony Judge Gertner excluded as irrelevant.

And Tenenbaum doesn't bear responsibility for the music industry's problems of the past decade. “The Internet was not Joel’s fault. Joel did not make the Internet,” said Nesson. Referencing the sudden availability of "free bits" on the Internet, he said, "If you’re in the desert and it starts to rain, you need a new business."

First witnesses
The first witness called by the plaintiffs was Sony Music Entertainment Deputy General Counsel Wade Leak, who educated the jury on the basic functions of a record label, from A&R to connecting artists with producers to radio promotion to physical and digital sales. Leak also served as the vehicle for introduction of the copyright registrations of Sony's works, and identified the song "Pardon Me" by Incubus, which was played to the courtroom with no apparent reaction from the jury or Judge Gertner, whose musical tastes remain a mystery.

Leak also testified as to the harm allegedly caused by peer-to-peer use to his company, stating that the number of Sony Music employees has dropped by half since 2000, a body count he attributed in large part to piracy. (Plaintiffs plan to bolster their evidence of economic harm with testimony from University of Texas economist Stanley Liebowitz, an expert on the economic effects of copyright infringement. Tenenbaum has no economic expert, and Judge Gertner has barred his computer expert Dr. Johan Pouwelse from opining on economic and business issues.)

Nesson’s cross-examination of Leak was lengthy, and interrupted by frequent objections by plaintiffs' attorney Matthew Oppenheim, most of which were sustained. Indeed, on several occasions "sustained" escaped from Judge Gertner’s lips before Oppenheim even had the chance to object. Chiding Nesson on his frequently unorthodox questions, Judge Gertner at one point told the evidence professor, "I'm just trying to translate this into the Federal Rules of Evidence." And when Nesson, reacting to a sustained objection, explained what he was trying to "say," Gertner cut him off: "You're not supposed to be saying anything. You're supposed to be asking questions."

On substance, Nesson tried to get Leak to admit that Tenenbaum did not fit into the category of the worst of copyright infringers: he was not a criminal infringer and not a member of a "release group" who originally seeded the KaZaA network with unauthorized copies of songs. Instead, Tenenbaum was just "one more…bit of dust in the wind" whose KaZaA use had no significant effect on the availability of the songs at issue.

Nesson also tried, without success, to get Leak to say how much the plaintiffs were seeking in damages from Tenenbaum. "We are leaving that determination for the jury's discretion," said Leak, who testified at the Thomas-Rasset trial that an award of $150,000 in statutory damages per work was "absolutely" appropriate.

Mark Matteo of Cox Communications' security department testified about the process of linking the IP address identified by MediaSentry with the account held by "J. Tenenbaum" of Providence, RI. Nesson’s cross reminded the jury that the first initial "J" belongs to Judith Tenenbaum as well as Joel.

MediaSentry's staccato-talking anti-piracy cop Chris Connelly took the stand to describe how the company's automated software detected "sublimeguy14@KaZaA” at the IP address 68.227.185.38 sharing 816 files at 12:49am on August 10, 2004. The New Jerseyan confidently defended his company's accuracy: “There has been a zero error rate.”

But he acknowledged that MediaSentry cannot detect transfers from one peer to another, and thus does not have direct proof that 68.227.185.38 distributed files to any specific KaZaA users other than to MediaSentry itself, which downloaded five complete files from sublimeguy14@KaZaA for purposes of this litigation.

Plaintiffs briefly called to the stand Joel's high school friend James Chappel, whom Tenenbaum had previously identified as someone who had used his computer, possibly to download music. Chappel testified that he had used the computer in Joel's bedroom several times, but never to download music on KaZaA or otherwise.

Joel's father, psychiatrist Dr. Arthur Tenenbaum, was the last live witness of the day. He confirmed his son's musical tastes (they once listened together to the Fugees' "Killing me Softly," one of the 30 songs at issue in this case) and testified as to the computers at use in the family home. He recounted Joel demonstrating KaZaA for him at the bedroom computer. And, perhaps most damning, he testified that he called his son at college in 2002 to warn—quite prophetically—that Joel might get sued because of his p2p use. "You only get sued if you do it a lot," Joel responded.

The day concluded with a law firm associate reading deposition testimony from Joel's two sisters, Tova and Abigail. Joel testified during his deposition that both might have used KaZaA on the computer in his bedroom, but in their own subsequent depositions, both denied it.

Tomorrow will feature more denials from friends and acquaintances who Joel had suggested may have used his computer to download music. Other scheduled witnesses include label attorneys JoAn Cho of Universal and Silda Palerm of Warner, plaintiffs' computer forensics evidence Dr. Douglas Jacobson, and Joel Tenenbaum himself. Plaintiffs have indicated they hope to wrap up their case sometime Thursday morning, which will leave the defense little time for its own presentation if the jury is to receive the case by Friday, as per the schedule set by Judge Gertner.
User avatar
TC
Muad'Dib
Muad'Dib
 
Posts: 14627
Joined: 02/01/02, 23:08:48
Location: Sweetknuckle Junction

Re: suit against RIAA - one to watch....

Postby Draesk on 03/08/09, 17:38:09

http://www.theinquirer.net/inquirer/new ... pay-usd675

Le Inq wrote:A BOSTON JURY has ordered Joel Tenenbaum to pay a total of $675,000 for willfully infringing 30 songs by downloading and distributing them over the KaZaA peer-to-peer (P2P) filesharing network.

The figure of $22,500 per song is closer to the $222,000 award in the first Jammie Thomas-Rasset trial than the $1.92 million figure from her second trial, but of course they're all ridiculously high penalities.

The defendant's case was hamstrung from the start by the judge having ruled out the Fair Use defence to the RIAA firms' claims of copyright infringement and later having directed the jury that it could only return a guilty verdict because the defendant admitted liablity on the witness stand.

After three hours of deliberations the jury came up with the stonking fine, which was actually smaller than many had predicted might have been assessed.

Tenenbaum's attorney and Harvard Law School professor Charles Nesson told Ars Technica, "it's a bankrupting award." He also said things might have gone differently at trial had the defence been allowed to argue Fair Use.

Tenenbaum said that he doesn't have the ability to pay the judgment and that he'll be filing for bankruptcy if the award stands.

Of course the RIAA is happy. This is the second high profile case that has actually gone to court and it has proven that the way the law stands P2P users can end up paying thousands of times the cost of $1 track if they stick it on a P2P site.

Judge Gertner has previously said she will hold a post-trial proceeding to determine whether the size of the award violates the US Constitution. µ


--

Blow by blow from Ars: http://arstechnica.com/tech-policy/news ... r-song.ars

Ars Technica wrote:A Boston federal jury has ordered Joel Tenenbaum to pay a total of $675,000—$22,500 per song—to the major record labels for willfully infringing 30 songs by downloading and distributing them over the KaZaA peer-to-peer network. The figure is closer to the $222,000 award in the first Jammie Thomas-Rasset trial than the $1.92 million figure from the second trial.

The verdict came down at late Friday afternoon after a little more than three hours of deliberation.

When asked about the size verdict, Tenenbaum's attorney and Harvard Law School professor Charles Nesson told Ars that "it's a bankrupting award." He also felt things might have been different had they been allowed to argue Fair Use. "We were not allowed to speak to fairness," he told Ars. "I thought we had pretty damn good arguments on Fair Use."

"I'm disappointed, but not surprised, but I'm thankful that it wasn't much bigger, that it wasn't millions," Tenenbaum told Ars after the verdict was announced. We asked him if he regrets not settling earlier on in the process. "Ask me in a couple of months," Tenenbaum replied. He also told Ars that he doesn't have the ability to pay the judgment and said that he'd be filing for bankruptcy if the award stands. Although the jury found that he willfully infringed on the copyrights in question, Tenenbaum said he was "not displeased with the jury considering how the trial went."

What about the fact that the damages could have been much worse, as high as $4.5 million? "That to me sends a message that [the jury] considered [my] side legitimately," he replied. He was also evasive when asked if he regrets downloading music for free. "That's really a loaded question," he replied. "There are so many things that could have been different."

The RIAA was pleased with the verdict. "We are grateful for the jury’s service and their recognition of the impact of illegal downloading on the music community," the RIAA said in a statement. "We appreciate that Mr. Tenenbaum finally acknowledged that artists and music companies deserve to be paid for their work. From the beginning that’s what this case has been about. We only wish he had done so sooner rather than lie about his illegal behavior."

The trial was an almost entirely one-sided affair. Plaintiffs built their case with forensic evidence collected by MediaSentry, which showed that he was sharing over 800 songs from his computer on August 10, 2004. A subsequent examination of his computer showed that Tenenbaum had used a variety of different peer-to-peer programs, from Napster to KaZaA to AudioGalaxy to iMesh, to obtain music for free, starting in 1999. And he continued to infringe, even after his father warned him in 2002 that he would get sued, even after he received a harshly-worded letter from the plaintiffs’ law firm in 2005, even after he was sued in 2007, and all the way through part of 2008.

And when he took the stand on Thursday, Tenenbaum admitted it all, including the fact that he had “lied” in his written discovery responses and at his first deposition in September 2008.

Tenenbaum’s admissions were so clear-cut, and so damning, that Judge Gertner—who had recruited Nesson to represent the formerly lawyer-less 25-year-old—took the basic issue of infringement away from the jury, determining that no reasonable jury could find for Tenenbaum on that issue. The jury of five men and five women, all white and all from the Boston suburbs, were left only to determine the issue of willfulness and damages.

Tenenbaum is only the second of approximately 18,000 individuals targeted by the labels to have gone to trial, and the second to lose. In June of this year, a Minnesota jury ordered Jammie Thomas-Rasset to pay $80,000 for infringing each of 24 songs, totaling $1.92 million. Last December, the labels announced that they were no longer initiating new cases against individual peer-to-peer users. However, they said they would see through to the end those cases already in the litigation pipeline. According to the labels’ attorneys, there remain about 100 cases pending where the defendant has filed an answer, about a dozen of which are being actively litigated in the discovery stage.

The Tenenbaum litigation was dominated by the larger-than-life personality of Tenenbaum’s counsel, Harvard Law School professor, who infuriated the plaintiffs, and at times Judge Nancy Gertner, with his unusual litigation tactics. These included making audio recordings of the attorneys and the court, and then posting the results to his blog, and publicizing internal discussions with potential expert witnesses about legal strategy. A sanctions motion against Nesson for his recording practices remains pending.

Tenenbaum’s case was dismantled piece-by-piece by a series of adverse rulings over the past several months. Judge Gertner dismissed his abuse-of-process claims against the plaintiffs and the Recording Industry Association of America; excluded four of his proposed expert witnesses and limited the scope of a fifth; and, in a coup de grace delivered less than eight hours before the start of trial, barred him from arguing fair use to the jury.

Judge Gertner previously announced that she will hold a post-trial proceeding to determine whether the size of the award violates the US Constitution’s guarantee of due process of the law. While no federal court has ever invalidated an award of copyright statutory damages as constitutionally excessive, the record labels’ litigation campaign has spurred arguments that the Supreme Court cases imposing limits on punitive damages should be extended to statutory damages, which may contain a punitive element.

Tenenbaum filed a motion to dismiss the plaintiffs’ statutory damages claim on constitutional grounds, but Judge Gertner deferred ruling on the issue unless and until there was actually a damages award handed down by the jury.


--

And now for the twist!

http://news.bbc.co.uk/1/hi/technology/8177285.stm

The Beeb wrote:A US student ordered to pay $675,000 (£404,000) for sharing music online has refused help paying the fine.

Over the weekend supporters had begun to donate money to Boston University student Joel Tenenbaum who was found guilty of sharing 30 songs.

In a blog post Mr Tenenbaum said: "I ask no one to help me. And I ask for no one to cover what I signed up for."

He said any money raised so far would be used to pay expenses to his legal team, many of whom worked for free.

"I shared music. I was the one who wanted a say in court. This lawsuit was against me. This is my verdict," wrote Mr Tenenbaum.

Mr Tenenbaum was ordered to pay the money to four record labels.

Supporters had begin to donate money, he said, after news of his fine spread around the social networking site Twitter. Around $2000 had been raised before Mr Tenenbaum wrote his blog.

"We don't want the RIAA (Recording Industry Association of America) to be paid when I can't afford to do it, and this money could be more valuable elsewhere," the blog post said.

"From the money raised already, I would like to reimburse my legal team for the money they've spent out of their own pockets."

In a different post, he said that he would "declare bankruptcy" if his appeal against the fine was not successful.

The case is only the second of its kind to go to trial in the US.

In the first case, a woman in Minneapolis was ordered to pay $1.92m for sharing 24 songs.

On Friday, the jury ordered Mr Tenebaum to pay $22,500 for each infringement. The maximum that he could have been fined was $4.5m.

Mr Tenenbaum used a computer at his parents' home and at his college to download and distribute digital files.

Prosecutors working on behalf of the record labels focused on 30 shared songs from artists such as Nirvana and Green Day.

Under US law, the recording companies are entitled to $750 to $30,000 per infringement.

However, the jury can raise the amount to $150,000 per track if it finds the infringements were wilful.

In the Minnesota case, the jury awarded $80,000 per song.

On the stand, Mr Tenenbaum admitted that he had downloaded more than 800 songs since 1999.

"I used the computer. I uploaded, I downloaded music," he told the court under questioning from his own lawyer, Charles Nesson.

He said he had used Napster and then Kazaa to download the files.

"It was like this giant library in front of you," he said.

In opening remarks, Mr Tenenbaum's lawyer said he "was a kid who did what kids do and loved technology and loved music".

Recording companies had been slow to adapt to the internet, he added.

But prosecutors argued that file-sharers take a significant toll on the revenues for artists and others involved in music

The recording industry has recently changed its tactics in file-sharing cases, preferring to settle quickly for much smaller amounts.

However, cases such as those against Mr Tenenbaum, which were already filed, are proceeding to trial.

The four recording labels involved in the case are subsidiaries of Universal Music, Warner Music and Sony.

Kevin Cullen of the Boston Globe said Mr Tenenbaum had "got off easy" compared to the Minnesota case.


Interesting tactic.
User avatar
Draesk
Stilgar
Stilgar
 
Posts: 1887
Joined: 09/07/03, 14:57:38
Location: 11011000

Re: suit against RIAA - one to watch....

Postby TC on 28/09/09, 11:43:36

Ars wrote:
Ignoring RIAA lawsuits cheaper than going to trial

The same federal judge who oversaw the Joel Tenenbaum file-sharing trial earlier this year passed out default judgments this week against other file-swappers who never bothered to show up—and they now owe far less than Tenenbaum.

Jammie Thomas-Rasset and Joel Tenenbaum captured the nation's attention they were defendants in the RIAA's first two trials against accused online infringers. But here's the mind-warping reality: both defendants would have been far better off monetarily if they had simply ignored the complaint altogether and failed to show up in court.

That counterintuitive logic played out again this week in Massachusetts, where federal judge Nancy Gertner issued four default judgments against accused P2P file-swappers who never bothered to respond to the charges against them. Their failure to appear meant an automatic loss, and though the judge does have some discretion in setting penalties, judges often pick the minimum awards in such cases.

That was true in all four cases, where Gertner accepted the record labels' claims and awarded them the minimum statutory damages of $750 per song. The defendants were accused of downloading an average of ten songs, putting total awards in the $7,500 range, in addition to a few hundred more for court costs.

Having $7,500 in damages assessed against you by a federal court is no picnic, but it pales in comparison to the two twenty-somethings who actually showed up to court, got attorneys, went through a multiyear process, a nationally covered trial, and came out the other side owing far more money.

The chart below illustrates the point by graphing the various damage awards per song:

RIAA%20damage%20awards.001[1].png

When it comes to total damages, the disparities are even greater. Thomas-Rasset's retrial ended up with a $1.92 million award, while Tenenbaum faces $675,000 in damages. Those who didn't show up owe around $7,500.

In fact, this might well have been Tenenbaum's fate. He was actually included in a massive complaint consolidated into a single docket, and it was only when he showed up to a court hearing that Gertner stopped the default judgment proceeding against him and actually helped find him a lawyer—Harvard Law prof Charles Nesson. Now, Tenenbaum faces a life-altering damage award and the prospect of bankruptcy if not reduced or overturned on appeal.
You do not have the required permissions to view the files attached to this post.
User avatar
TC
Muad'Dib
Muad'Dib
 
Posts: 14627
Joined: 02/01/02, 23:08:48
Location: Sweetknuckle Junction

Re: suit against RIAA - one to watch....

Postby Draesk on 28/09/09, 12:04:11

Well that's an interesting precedent, and I don't mean legally. This could potentially see the RIAA raking in a lot of money from civilian lawsuits still. Piracy is the new black (snap), so very few eyebrows would be raised were the RIAA were to go on another suing spree in the not-too-distant future. I'm sure this point will be raised by a whole slew of news sources, so a lot of people will now see for sure that it's cheaper just to role over and pay out straight away than to fight. Of course, there will still be those who do, so they'll get their mega-buck settlements, but it could give them the freedom to rake in $750 per song alleged, with the flimsiest of evidence because they know the chances of a trial, much less a successful trial at all (they choose their battles well), are slim-to-none.

Also, I didn't realise that Ars was getting so bad as to have to print out a chart detailing a whole 4 comparative values for its readers.
User avatar
Draesk
Stilgar
Stilgar
 
Posts: 1887
Joined: 09/07/03, 14:57:38
Location: 11011000

Re: suit against RIAA - one to watch....

Postby TC on 28/09/09, 13:51:26

yeah, that's the thing with these rulings - i too think we'll see an uptick in the amount of suits. people have been sufficiently scared by the results of these suits that they will settle for whatever amount the riaa wants rather than risk being liable for $80k/song.

shakedown, anyone?
User avatar
TC
Muad'Dib
Muad'Dib
 
Posts: 14627
Joined: 02/01/02, 23:08:48
Location: Sweetknuckle Junction

Re: suit against RIAA - one to watch....

Postby TC on 29/01/10, 10:03:28

it's deja vu all over again....

Ars wrote:Thomas-Rasset vows to pay nothing, so third trial inevitable

Mules, long noted for stubbornness, would seem to have nothing on either the music labels or Jammie Thomas-Rasset. Both sides have dug in deep and are prepared, almost unbelievably, to have a third trial on the question of whether Thomas-Rasset was a dirty P2P pirate... and of what she should pay if she was.

Thomas-Rasset was the first US defendant of the RIAA lawsuit campaign to take her case all the way to trial. That first trial in 2007 found her liable for copyright infringement and fined her $222,000. She was then granted a retrial by the judge on the grounds that he had been misled on one particular jury instruction that described simply "making available" a copyrighted file as copyright infringement. Citing Eight Circuit precedent, the judge decided that this wasn't good enough and that only actual proof of a file transfer could be counted.

At the second trial, in 2009, Thomas-Rasset was again found liable, but the jury this time fined her $1.92 million. Last week, federal judge Michael Davis decided that this was "monstrous" in its disproportionality and slashed the damages to $54,000. The recording industry could either accept his decision or request a third trial.

The RIAA then sent a letter to Thomas-Rasset's lawyers with an alternate offer. Thomas-Rasset could settle for only $25,000 ("We are willing to negotiate a payment schedule for this sum," said a copy of the letter seen by Ars), and she wouldn't even need to pay the labels—all cash could go to a charity benefiting musicians. The entire settlement would be conditioned on the judge vacating his recent remittitur order.

"We do not believe embarking on a third trial is in anyone's interest," said the letter. "Continuing to use scarce judicial resources as well as spend our respective clients' time and money strikes as unwise and pointless."

It does not strike Thomas-Rasset that way. While the RIAA asked for an answer by Friday, January 29, Thomas-Rasset's lawyers have already responded: no deal.

I checked in with Kiwi Camara, one of Thomas-Rasset's lawyers. who confirmed that the settlement was ruled out. He added that Thomas-Rasset would likewise rule out any settlement asking her to pay damages, and that the Camara & Sibley law firm was ready to represent her pro bono once more.

Third time's the charm?
It's hard to see how this will play out, but a few things are clear: Judge Davis, despite strong criticism of the damage award, had no kind words for Thomas-Rasset. He noted that "Thomas‐Rasset’s refusal to accept responsibility for her actions and her decision to concoct a new theory of the infringement casting possible blame on her children and ex‐boyfriend for her actions demonstrate a refusal to accept responsibility and raise the need for strong deterrence." The judge even concluded that she "lied on the witness stand by denying responsibility for her infringing acts and, instead, blamed others, including her children, for her actions."

Given the facts in the case, which after two trials don't appear to be in dispute, it's hard to see how Thomas-Rasset hopes to prevail without paying a dime, but that appears to be the plan. If she had been willing to pay something, she would have done so long ago, when the RIAA offered her a settlement of a few thousand dollars. Instead, Thomas-Rasset has spent years of her life working with two law firms on two federal trials, and she's willing to risk a third.

The stubbornness isn't just on one side of the aisle, however. The RIAA is completely unwilling to abide Judge Davis' ruling that the jury's damage award was excessive. Accepting the ruling would set an unacceptable precedent for judges to alter jury awards in copyright cases at their whim. It's not the amount, but the principle—something shown by the fact that the trade group is willing to drop roughly a bazillion dollars more on the Denver law firm that has been prosecuting the case in order to do it all again. In addition, conversations with industry lawyers and executives over the years have also revealed a strong sense that Thomas-Rasset needs to take responsibility and pay something; there's a very real sense that, apart from issue of statutory damage law, Thomas-Rasset is thumbing her nose at the industry and hoping to get away with no penalty.

Thus—a third trial. "It is a shame that Ms. Thomas-Rasset continues to deny any responsibility for her actions rather than accept a reasonable settlement offer and put this case behind her," RIAA spokesperson Cara Duckworth told Ars. "Given this, we will begin preparing for a new trial."

Camara & Sibley are also ready to go, so it looks like everyone will trek back to Minnesota to rehash the same issues for a third time. Judge Davis' patience with the entire proceeding seems thin; he has already trashed two jury verdicts and called publicly on Congress to change the law, but he has also made clear that Thomas-Rasset should take responsibility. The judge must be about as thrilled as we are to see the case take up another full week on his docket.

Class-action suit against labels still coming
Much more interesting, however, would be a major class-action lawsuit against the recording industry. Such a lawsuit would get even more intriguing if the prosecuting lawyers said that they plan to "get the $100 million that [the RIAA] stole" by suing people and collecting settlements. (The RIAA says it has not earned $100 million from the campaign, and that it actually lost money after paying all the lawyers.)

That's exactly what Camara plans to do. He told us about it last year but indicated that the case would be coming by the end of summer 2009. Is the case still in the works? Camara tells us today that it is.
User avatar
TC
Muad'Dib
Muad'Dib
 
Posts: 14627
Joined: 02/01/02, 23:08:48
Location: Sweetknuckle Junction

Re: suit against RIAA - one to watch....

Postby TC on 09/12/10, 14:17:22

Ars wrote:No harm, no foul? P2P user says $1.5M award should be zeroed out

Jammie Thomas-Rasset, the first US citizen to take her file-sharing lawsuit all the way to a verdict, has been hit with three separate damage awards: $222,000, $1.92 million, and recently $1.5 million. The judge has made clear that these figures are absurd; after the second trial, he declared $54,000 the most that he could possibly allow.

But what does Thomas-Rasset think she owes? Nothing.

In a filing this week, her lawyers asked the judge to reduce the damage award to zero:

"This award violates the Due Process Clause because it bears no reasonable relationship to the actual damages that the defendant caused. While the plaintiffs offered evidence of the harm caused by file sharing in general, they were unable to present evidence of any harm caused by this defendant in particular...

The statutory damages assessed in this case bear no relation to the actual injury that this defendant caused. The plaintiffs complain that this is because the injury they suffered due to distribution of free music on KaZaA cannot be traced to any particular defendant. That may be true, but it does not follow that one defendant can be punished for the harm that KaZaA itself—that file-sharing technology itself—caused. The testimony was clear that the plaintiffs cannot trace and, indeed, made no attempt to trace, the particular injury that this defendant caused. If this Court agrees that the Constitution requires some proportionality between actual damages and statutory damages imposed to punish and deter, then the complete dearth of evidence of actual damages that the plaintiffs presented in this case requires a take-nothing verdict."

As for the RIAA, they want the verdict to stand, but most of their motion this week was about the crucial importance of issuing a permanent injunction against Thomas-Rasset so that she never violates their copyrights again.

Reply motions are due early next year, and it could take a couple months more for the judge to issue a final ruling.

regardless of where you stand on the morality of this issue, the lawyers have a damn fine point there.
User avatar
TC
Muad'Dib
Muad'Dib
 
Posts: 14627
Joined: 02/01/02, 23:08:48
Location: Sweetknuckle Junction

Re: suit against RIAA - one to watch....

Postby Draesk on 09/12/10, 14:34:11

haha, bet they wish they'd gone punitive now.
User avatar
Draesk
Stilgar
Stilgar
 
Posts: 1887
Joined: 09/07/03, 14:57:38
Location: 11011000

Next

Post a reply

 

Board index General SciTech


Users browsing this forum: No registered users and 2 guests

cron