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Jammie Thomas stands accused of sharing 1,705 songs in April 2005.  (Source: NewsMax.com)
Deemed to have nothing to say of relevance, Cary Sherman will have to wait for another day in court for a soap box

Judge Michael J. Davis barred Recording Industry Association of America President Cary Sherman from testifying in Capitol Records v. Jammie Thomas, the first RIAA lawsuit to go to jury trial. With Sherman struck from the witness list, testimony wrapped up Wednesday and a decision is expected today.
 
“I don’t want to turn this case into a soap box for the recording industry,” said Thomas’ counsel Brian Toder. RIAA lawyers argued that Sherman could provide valuable testimony to the jury over the case’s significance and the harm the RIAA has suffered due to piracy.
 
Even after Judge Davis rendered his motion to bar Sherman’s testimony, RIAA counsel Richard Gabriel continued to press on. Emphasizing the importance of Sherman’s testimony, Gabriel argued that Sherman is needed to help the jury see the “massive problem of file sharing,” and that the RIAA is not out to make money but “to prove a point.”
 
Judge Davis remained stalwart, refusing to reconsider.
 
Capitol Records v. Jammie Thomas is significant because it is the first case among the RIAA’s litany of more than 18,000 lawsuits to make it to jury trial. With most of the suits, the RIAA tends to push for a settlement to avoid costly litigation; defendants, facing overwhelming legal fees and the costs of going to court, usually settle for amounts that range from around $3,000 to $11,000.
 
Previous testimony in Capitol Records v. Jammie Thomas included witnesses from Sony BMG, Warner Bros., and EMI Records of North America. In one such testimony, Sony BMG’s head of litigation Jennifer Pariser equated Fair Use to stealing when she testified that if “an individual makes a copy of a song for himself, I suppose we can say he stole a song,” adding that making “a copy” is just “a nice way saying ‘steals just one copy.’”



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Not looking good
By Murst on 10/4/2007 5:21:31 PM , Rating: 2
The defense is not looking too hot in this trial. Earlier today the judge made a modification to jury instructions that the "act of making available for electronic distribution... violates the copyright owner's exclusive copyright." Previously, the instruction was that copyright infringment could only happen if an actual transfer took place.

I just don't see how the defense can win this w/o some sort of jury nullification. The RIAA doesn't even have to meet the reasonable doubt standard since this is a civil trial.




RE: Not looking good
By Phynaz on 10/4/2007 5:40:23 PM , Rating: 2
She lost the case.

Liable for $220,000 of damages.


RE: Not looking good
By codeThug on 10/4/2007 5:49:35 PM , Rating: 2
Nooooooooo....

How in the hell can the RIAA prove they LOST $220,000? In which fucking parallel Universe did this happen?


RE: Not looking good
By Murst on 10/4/2007 5:58:22 PM , Rating: 3
Why would the RIAA have to prove they lost anything? How did Stella prove she lost millions of dollars when she spilled coffee on herself at McDonalds? This is a civil trial. The jury can award pretty much whatever they want to.


RE: Not looking good
By Phynaz on 10/4/2007 5:59:47 PM , Rating: 2
It's a civil case, you don't have to prove anything.

There is no "beyond a reasonable doubt" in civil court.


RE: Not looking good
By bplewis24 on 10/4/2007 7:10:18 PM , Rating: 2
While you are correct that the burden of proof in civil cases is not "beyond a reasonable doubt" as it is in criminal cases, it's not the same as "not having to prove anything."

Technically, the burden of proof in civil cases is "beyond a preponderance of doubt." In all practicality, all you have to prove is that a person is "more than likely" guilty, which some people describe as the 51% rule. If you believe there is a 51% chance or more that he/she is guilty, than the burden of proof is met.

Having said that, don't confuse burden of proof in guilt vs innocence to proving damages. The burden in proving that the defendant was guilty in this case is still a relatively separate matter from proving just how much she should be paying in the way of damages. And that tends to get a bit more complicated.

Brandon


RE: Not looking good
By Phynaz on 10/4/2007 7:38:58 PM , Rating: 2
Actually it's preoponderence of evidence.

There's no such thing as "beyond a preponderance of doubt".


RE: Not looking good
By bplewis24 on 10/9/2007 3:26:27 PM , Rating: 2
Of course, you are right. Thanks for the correction...not sure what I was thinking.

Brandon


RE: Not looking good
By Polynikes on 10/4/07, Rating: 0
RE: Not looking good
By dluther on 10/4/2007 11:53:18 PM , Rating: 2
It's not a matter of proving they lost this amount, it's a matter of proving willful violation, and applying a penalty per occurrence.

That's how civil copyright and patent infringement works.


RE: Not looking good
By Christopher1 on 10/4/2007 7:00:52 PM , Rating: 2
You are kidding? At least I hope that you are.... if she lost this case, I would immediately file for a stay and appeal the decision to the higher courts.


RE: Not looking good
By walk2k on 10/4/2007 7:37:09 PM , Rating: 2
geez that's $129 per song.

you can probably buy most of those songs for .99 cents on iTunes.

what justification could they possibly have for the insane 1300% price increase??


RE: Not looking good
By Phynaz on 10/4/2007 7:42:04 PM , Rating: 3
Actually it's $9,250 per song.

Evidence was presented for only 24 songs.

The price increase is due to punative damages.


RE: Not looking good
By Ard on 10/4/2007 8:43:16 PM , Rating: 2
It's not punitive per se, though the impact is certainly similar. The jury reached that amount through statutory damages. It could've been far worse though as they labeled her a "willful infringer", meaning the upper ceiling is $150,000 per work infringed.


RE: Not looking good
By walk2k on 10/5/2007 12:50:05 AM , Rating: 2
the hell is that about. $150K????

one song is not worth 150K

you can buy a whole damn album for 10,000 times LESS than that.

you can't be fined for over 100,000 TIMES the value of what you stole.

if you shoplift a $10 DVD you get fined ONE MILLION DOLLARS?

idiots


RE: Not looking good
By Christopher1 on 10/5/2007 12:04:28 PM , Rating: 2
Well, here's the reasoning of the MPAA/RIAA (not that I agree with it): If you are filesharing, you are not only downloading the song or movie in question for yourself but are ALSO uploading to other people who then will not buy that song or movie.... THAT'S where they get the 150,000 dollars from..... though it is still excessive and unconstitutional!


RE: Not looking good
By walk2k on 10/5/2007 12:42:47 AM , Rating: 2
quote:
Jammie Thomas stands accused of sharing 1,705 songs in April 2005. (Source: NewsMax.com)
1705 songs.

don't be ridiculous, you can't be sued for 220k for only 24 measly songs


RE: Not looking good
By SirLucius on 10/5/2007 1:03:24 AM , Rating: 2
quote:
Of those 1,700 tracks, 24 were named – including music from popular artists such as AFI, Green Day, and Aerosmith – and for each one she was held liable for $9,250 worth of damages, coming to a grand total of $222,000.


From the latest DT article on this issue. While she was accused of sharing 1705 tracks, the RIAA only pursued 24 of them.


RE: Not looking good
By borismkv on 10/4/2007 8:07:17 PM , Rating: 3
So I take it we can add Jury Tampering to the RIAA's list of less than reputable litigation strong-arming tactics?


RE: Not looking good
By Phynaz on 10/4/2007 8:15:21 PM , Rating: 2
Did you even bother to read the testimony?


RE: Not looking good
By Parhel on 10/5/2007 8:22:14 PM , Rating: 2
quote:
The defense is not looking too hot in this trial.


Neither is the defendant!

Sorry, I couldn't help it.


hmm... reality
By xxsk8er101xx on 10/4/2007 7:40:01 PM , Rating: 2
interesting ...

Tell me, how is a single mom going to pay 220k dollars?

you can't make a stone bleed. You can only get what she has and if she's a single mom she likely doesn't have much. So in reality she didn't have anything to lose as she couldn't pay the settlement anyway. How do you make someone who has no money pay money? It doesn't happen and you can't throw people in jail for not having money.

This can get appealed because the jury had no knowledge in what they were being a jury for. It was a one sided case that completely favored the RIAA.

A good lawyer should stop up and fight for her rights and our rights for nothing. This is criminal regardless if what she did was right or wrong. Companies have no right to sue people for large amounts for alleged offenses and get away with it.

It would be like me suing you for 200k dollars because i said you hit me and i won. Even though the evidence isn't there besides a bruise.Which could have came from anywhere.

This is but a first step to a collapsed society when the wrong go unnoticed and the good people who can do something about it do nothing.




RE: hmm... reality
By imaheadcase on 10/4/2007 8:00:51 PM , Rating: 3
Even if she lost she still wins for other people. This case is another thorn in the side of RIAA even if she lost. Because of being an single mom it puts bad light on RIAA for going after her.

Just wait till the follow up when RIAA tries to collect, it can't collect. Because as stated many times the defendant can't pay and the judge knows this fact.

Its like O.J Simpson, he lost his case and is forced to pay the victims family so many millions, he can't pay it, so the family goes after every little thing they can. Like his Rolex they just got.

Now picture the RIAA in the limelight collecting money from this lady..


RE: hmm... reality
By SavagePotato on 10/4/2007 8:26:22 PM , Rating: 2
Actualy come to think of it, they no doubt spent a ton of money on their own high priced lawyers to take this to trial as well.

Much much more no doubt than they will ever collect out of this woman. Suits like this are a joke, someone I know sued over unpayed work for renovations, and won. Never collected one red cent. Can't collect blood from a stone as was mentioned. That was only $5000 much less 220k, and from someone a hell of a lot better funded than a single mother.

It's true, all they have done is spend alot of money to look very bad.


RE: hmm... reality
By Christopher1 on 10/5/2007 12:07:22 PM , Rating: 2
You hit the nail on the head. People have trouble getting less than 1000 dollars from other people, so how are the RIAA and MPAA going to get 220,000 dollars from this woman?

Like you said, they aren't and this case is an absolute joke, because she will just file for bankruptcy and never have to pay one red cent.


RE: hmm... reality
By SavagePotato on 10/4/2007 8:07:51 PM , Rating: 2
The public backlash of millionaires suing a single mother for 220k should be severe, at least I would hope.

In a world where you can run someone over and kill them while speeding, and get off scott free (recent case here). While someone gets fined 220k dollars for downloading 2 CD's worth of songs, Well it realy makes you wonder what exactly is wrong.


RE: hmm... reality
By dluther on 10/4/2007 11:56:21 PM , Rating: 2
quote:
Tell me, how is a single mom going to pay 220k dollars?


The record companies will garnish her paycheck up to 25% until the debt (with interest) is satisfied, or she dies. If she ever gets married, her spouse will share that burden as well. And if she dies, liens will be placed on any and all valuable possessions, the value of which will be determined while held in probate.


RE: hmm... reality
By vortmax on 10/5/2007 10:44:54 AM , Rating: 2
That stinks for her kid(s)...


RE: hmm... reality
By marvdmartian on 10/5/2007 10:45:14 AM , Rating: 1
Not to sound racist or anything, but that seems to me the very best excuse I've ever heard for a single mom to go on welfare & foodstamps! Go ahead, garnish her non-existant paycheck!! ;)

As far as anything of value, all she has to do is give it as a gift to her children before she dies. Perfectly legal, as I'm pretty sure that's how OJ has hidden money he'd otherwise have to pay to the Goldmans.

Truthfully, it wouldn't surprise me to see someone with a big wallet step up and anonymously pay this amount. It would be great if every music artist pitched in some money to pay it, as it would show the public (and future jurists) how the musicians think the RIAA is full of shit too! :)


Deemed to have nothing to say of relevance
By SirLucius on 10/4/2007 3:03:29 PM , Rating: 5
quote:
Deemed to have nothing to say of relevance


That quote brought a smile to my face.




By Master Kenobi (blog) on 10/4/2007 3:11:54 PM , Rating: 4
Wheres my photoshop, I want that shit engraved on his Tombstone!


By thejez on 10/4/2007 5:09:21 PM , Rating: 2
i think they should have let him speak so he could get up on the stand and explain to everyone how he was unable to buy his 2nd bently and 3rd ferarri because piracy is basically putting him in the poor house...

i know i feel horrible about how poor all those record executives and rock stars are...


By enlil242 on 10/4/2007 3:12:58 PM , Rating: 5
quote:
Sony BMG’s head of litigation Jennifer Pariser equated Fair Use to stealing when she testified that if “an individual makes a copy of a song for himself, I suppose we can say he stole a song,” adding that making “a copy” is just “a nice way saying ‘steals just one copy.’”


Hmmm, statements like that make me not give a damn about the RIAA or musicians...

I supposed I should turn myself in for all of those "compilation tapes" I made friends 20 years ago, which were in the hundreds ... who in turned purchased music from the bands they heard from said tapes... This arguement can go both ways, and the RIAA only states one side...

I bet I produced more customers for them "giving" away music back then ... and they had no way to track that. "file" sharing is not new, times and technology change and is more visible...




Lets see...
By Master Kenobi (blog) on 10/4/2007 3:01:59 PM , Rating: 2
Let's see what happens with this case. If she wins, it would be a landmark victory and might encourage other people to take it to trial as well. Once people can win in a jury trial and they know it the RIAA will have to back off and find a new avenue to terrorize with.




RE: Lets see...
By fk49 on 10/4/2007 6:52:38 PM , Rating: 2
Question
By crystal clear on 10/4/2007 4:15:52 PM , Rating: 2
quote:
Judge Michael J. Davis barred Recording Industry Association of America President Cary Sherman from testifying in Capitol Records v. Jammie Thomas,


Can this decision be applicable to other similar cases in other courts elsewhere in the USA ?




RE: Question
By Dianoda on 10/4/2007 5:32:49 PM , Rating: 2
The decision to bar the president of the RIAA from testifying?

No. That decision would have to occur on a case by case basis. But if Cary Sherman was never found to have anything relevant to say, it is likely that such testimony would continue to be barred. The court system is just that, it isn't a public forum. If Cary Sherman has a point to make, he can do it outside of the courtroom, where no one is required to listen.

Given the course of events that transpired, one might hope that such a decision (which prevented Cary Sherman from talking) was applicable not only in other cases in the USA, but outside of the courtroom as well, and also applicable to the whole of the RIAA, in which case we might never hear anything from them ever again. :p


Kind of laughed at this
By Bioniccrackmonk on 10/4/2007 4:20:58 PM , Rating: 2
quote:
and that the RIAA is not out to make money but “to prove a point.”


In reality I know they are trying to make sure people legally buy music but come on, their whole basis against pirating music is that they are losing potential income due to it.




RE: Kind of laughed at this
By 16nm on 10/4/2007 4:52:57 PM , Rating: 2
quote:
and that the RIAA is not out to make money but “to prove a point.”


The RIAA are not out to make money?! So they'll be happy if the jury fails to award them a single penny? I'm lost. What is the point to all of this again? I love these RIAA suits for their humor.


The point of all this...
By dluther on 10/4/07, Rating: 0
RE: The point of all this...
By NT78stonewobble on 10/5/2007 1:32:48 AM , Rating: 2
Ah but to actually steal something you would have to take something from the owner of said item.

You can't really say that the act of copying is stealing since nothing is missing.

Additionally the argument I personally have in favor of any music sharing is that people most often wouldn't have gotten the cd even if they couldn't download that song or 2 they liked of it.

But I do agree that people should pay for the music/movies/software they like and would like to own.

Which is why I still buy cd's and dvd's and actually have a quite large collection.

Personally I don't mind people sharing before eventually buying or not buying but do mind people owning 10.000 songs and 400 movies and not having bought a single one ever...


RE: The point of all this...
By Christopher1 on 10/5/2007 12:11:49 PM , Rating: 2
Personally, I would buy DVD's and CD's.... If they allowed me to download an ISO and burn the thing, even using a proprietary burning software, in my home!

I do NOT want to have to go out to a store and waste gasoline when I can just download the things that I want online with no problems (as long as they aren't full of DRM).


"Stealing just one copy"
By beckster02 on 10/8/2007 12:41:15 AM , Rating: 2
This argument is ridiculous. As a musician, I often make convenience copies of sheet music to facilitate page turns, among other things. This "convenience copying" falls under fair use for sheet music, so long as it is for the owner of the original copy and not for other individuals. I see no difference between this and making a copy of a CD so I can play the burned CD (which costs pennies) repeatedly in my car instead of the original disc that I bought (which might cost $15-$20 or more). I'd much rather keep burning copies when the CD gets scratched till it won't play anymore instead of buying an original every time...




Single MOM.. LOL
By hitman699 on 10/5/07, Rating: -1
"And boy have we patented it!" -- Steve Jobs, Macworld 2007

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