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RIAA Counsel Richard Gabriel Addresses The Court  (Source: Wired Threat Level)

The Jury Found Jammie Thomas Guilty and Awarded $222,000 in Damages  (Source: Wired Threat Level)
The RIAA adds a notch to its belt of legal victories

“This is what can happen if you don’t settle,” said RIAA attorney Richard Gabriels, speaking to reporters just outside the Duluth, Minnesota Courthouse, minutes after Jammie Thomas was found liable for copyright infringement to the tune of $222,000.
 
Thomas, a single mom with two kids, left the courthouse without comment and did not speak with reporters.
 
Under the username “Tereastarr,” Thomas was found sharing just over 1,700 files via the Kazaa network on February 21, 2005. 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.
 
Brian Toder, Thomas’ defense attorney, maintained that there existed no proof that Thomas was the person behind the keyboard, noting that Thomas or her computer may have been the victim of zombie botnet, spoofing attacks, or malicious crackers. “All we know is that Jammie Thomas didn’t do it,” said Toder, adding that Thomas was “not the person marauding as Tereastarr.”
 
This defense did not appear to hold up as it was found that Thomas used “Tereastarr” all around the internet, including online shopping, chat services, e-mail, and even dating services. The offending songs were linked to her cable modem’s MAC address, as well as her home IP address.
 
Gabriels called Thomas’ defense “misdirection, red herrings, and smoke and mirrors.”
 
Complicating Thomas’ defense was testimony from an ex-boyfriend saying while he had never seen her actively downloading music, she did have her hard drive replaced a month after her computer was picked up in the RIAA’s dragnets. Toder said that this was due to hard drive problems – something Thomas’ ex-boyfriend remembered her complaining about beforehand – but the RIAA argued that she had it changed to cover her tracks.
 
Forensic scientists could not find any evidence of file sharing on her new hard drive, and her old hard drive was not admitted as evidence.
 
Capitol Records v. Jammie Thomas, as Thomas’ loss is more formally known, was the first lawsuit of its kind to proceed before a jury as well as a landmark case that set precedent heavily favoring the RIAA in future legal battles. U.S. District Judge Michael Davis ruled that one could be guilty of copyright infringement merely by the act of making copyrighted songs available for download; as a result the RIAA did not need to establish that Thomas at her computer at the time her was accessed by investigators, nor did they need to prove that anyone actually downloaded the music she offered.
 
While the RIAA no longer publishes the number of lawsuits it’s filed in its four-years-and-counting legal campaign against file sharers, many publications speculate that that number stands anywhere between 18,000 and 36,000 lawsuits, with untold more settling long before the actual trial.


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What a mess
By InternetGeek on 10/4/2007 9:05:53 PM , Rating: 3
So basically if you install a P2P client, and share your music library you are breaking copyright laws.

How does this affect Fair User? Am I still able to copy my original CDs and use them in my car without fearing getting arrested? Or do I have to haul them on me all the time?. Sounds like I'm being forced into buying a Digital Music Player and, thus, accepting DRM.

I think the Defense lawyer didn't have much to grapple in order to defend her. And she broought it upon herself by using the same alias for all her digital activities. You coudl think the defense lawyer is into RIAA's payro;; by accepting not to settle such a flaky case giving them precedence from now on. As it stands all RIAA needs to do is prove that you were sharing your music collection... whether you know it or not.




RE: What a mess
By Xavian on 10/4/2007 9:11:16 PM , Rating: 4
According to the RIAA, copying music CD's in any way shape or form is copyright infringement.

Just another example of twisted logic from a conglomerate consisting of greedy fatcats.


RE: What a mess
By BladeVenom on 10/4/2007 9:16:00 PM , Rating: 5
The best thing to do is to make sure your music collection doesn't have any RIAA albums. http://www.riaaradar.com/


RE: What a mess
By Missing Ghost on 10/4/2007 10:14:48 PM , Rating: 3
Are you sure this actually work? I have like 6000 songs and that site says 99% of them are not RIAA albums.


RE: What a mess
By Alexstarfire on 10/5/2007 1:14:29 AM , Rating: 2
Well, it's saying that absolutely every song I've ever had on this computer, all the American ones at least, are published/released from an RIAA related company. I think it's safe to say that it's fairly accurate. If you have tons of older songs, and with 6000 I'd say that a lot of them are over 5 years old, that they may not have EVERYTHING in there. I'm sure they have all the newer stuff, like the last 15 years perhaps, and are working backwards or something.


RE: What a mess
By Alexstarfire on 10/5/2007 1:17:45 AM , Rating: 2
Also, did you search by song title or artist? I found that searching by song title doesn't work. I just searched by artist. If the artist is there then it's probably RIAA unless the band has been around a long time and you have an old song of theirs.


RE: What a mess
By BladeVenom on 10/5/2007 1:57:18 AM , Rating: 2
I check by artist to make sure albums I plan on purchasing aren't with an RIAA label. I don't want to support them.

Sometimes a band with an indie label will get picked up by a bigger RIAA label and then their older formerly non-RIAA albums will be re re-released by an RIAA label. Other times older artists will be dropped and their old stuff gets re-released by an non RIAA label. Just to let you know the status can change.


RE: What a mess
By Missing Ghost on 10/6/2007 9:34:02 PM , Rating: 2
No I did search by artist name. In fact I just tried again, it's still the same. It shows me a lot of album with a green "safe" icon. Some are "unknown". I get a "warning" for very few albums, like 1%. All my music is from 1980 to today with a lot of stuff from the 90s. Is it possible that RIAA only has artists from particular music styles? I have a lot of metal in my library.


RE: What a mess
By enlil242 on 10/4/2007 9:21:21 PM , Rating: 2
This was a quote listed on a DailyTech blog earlier today which I found astounding...

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.’”


RE: What a mess
By wordsworm on 10/4/07, Rating: 0
RE: What a mess
By alifbaa on 10/4/2007 10:42:47 PM , Rating: 5
You're right, no one would feel sympathy for a pedophile.

Your argument is what is called a "straw man." You set up a comparison between two unrelated things, one of which is inflammatory, and create a supposed connection between the two. I'm sorry, but sharing music online has nothing to do with the distribution of child porn.

Tell me, in what universe is it fair or correct that this woman would have to pay over $9k for sharing a song without any evidence that she actually did it? To use your phony argument, would you suggest that a person be sent to jail without the police ever connecting that person directly to the material he was distributing?

I understand that the burden of proof is much lower in a civil proceeding, but do you really think that this judgment is in any way proportional to the actual damages, even if she were proven to have done what she is accused of? If she is smart, she will appeal and this judgment will almost undoubtedly be reduced dramatically.


RE: What a mess
By wordsworm on 10/4/07, Rating: 0
RE: What a mess
By NullSubroutine on 10/5/2007 12:30:49 AM , Rating: 2
I am going to limit a reply due to the nature of the topic being discussed. But your link between CP and copyright infringement does not hold water.

There exists an inherent danger to children because of CP, the only danger that exists from "stealing music" is that record label executives get only 10 Mercedes this year, not 15.


RE: What a mess
By wordsworm on 10/5/07, Rating: 0
RE: What a mess
By clovell on 10/5/2007 1:30:40 PM , Rating: 2
No. The burden of proof is always on the prosecution - just in verying degrees. And distribution of CP is dangerous as it enables and fosters psychopaths. See: Ted Bundy.


RE: What a mess
By bhieb on 10/5/2007 9:28:20 AM , Rating: 2
quote:
the only danger that exists from "stealing music" is that record label executives get only 10 Mercedes this year, not 15


So theft is ok if it is small enought that the victim does not take a noticable decrease in standard of living? I was with you up until this part. It is hard to contridict a bad analogy with an equal inaccurate one.


RE: What a mess
By porkpie on 10/4/2007 11:37:48 PM , Rating: 1
quote:
would have to pay over $9k for sharing a song without any evidence that she actually did it?
Stop being silly. Of course there's evidence she did it. Maybe you don't agree with the evidence, but it exists.


RE: What a mess
By masher2 (blog) on 10/5/2007 4:21:19 PM , Rating: 2
Yes, the evidence was pretty much overwhelming in fact.

a) The activity all occurred from her IP address and MAC address.
b) It all occurred using a screen name she admitted to using for many other purposes.
c) All the specific songs traded were ones she admitted to listening to on a regular basis.
d) She claimed to have no knowledge of file-trading/P2P networks, yet had done a lengthy research paper on them in college.

There were a few other factors, but suffice it to say, the case against her was pretty much airtight.


RE: What a mess
By borowki on 10/5/2007 6:43:56 PM , Rating: 2
Finally, someone from DT making sense.


RE: What a mess
By Oregonian2 on 10/5/2007 9:35:15 PM , Rating: 2
What I thought chilling is the judge's proclamation that making a song available for copy access was sufficient to be a copyright violation, that an actual upload wasn't necessary to happen (so they didn't have to prove that).

If one has a store-bought CD and purposefully puts it in one's car and then parks the car in public with the window open (with the CD in plain sight) then can one be charged those huge numbers per song on that CD because the music was made available for someone to come by with a ripping software loaded laptop who could copy it (even if nobody actually does it)? What was the per-song charge for purposefully making it available for copying? $150K/song? This seems dumb and silly but I don't understand why the judge's directive wouldn't apply. I understand if it were the downloading of them, but I understand she was "gotten" just for making those songs available for copying even if they weren't.


RE: What a mess
By Oregonian2 on 10/5/2007 9:37:28 PM , Rating: 2
P.S. - I ask this because I've CD's in my car and upon occasion I leave the car unlocked unintentionally. I'd just as soon not get sued for a million dollars just because I left my car unlocked!


RE: What a mess
By Axbattler on 10/6/2007 10:52:21 PM , Rating: 2
I think that the jury is more likely to believe that your scenario is is accidental and unintentional. Whereas the use of P2P can easily shake the likelihood that she did not intentionally share the files. Still, if you frequently leave your car unlocked, you can't be surprised if it suddenly disappears one day, and end up with a poor history with the insurance company (I think that reason alone is sufficient to suggest that it was unintentional).


RE: What a mess
By Oregonian2 on 10/8/2007 3:52:57 PM , Rating: 2
Even when declared unintentional they still could get me for $15,000 for each song on that CD left in the car (actually I've ten or so in my minivan where Chrysler has a built-in CD holder). Her $220,000 was for unintentionally making songs available for snatching. With my ten CD's I'd be vulnerable for over a million dollars if I forget to lock my car. I wonder if my auto insurance would cover this million? Maybe I should ask my insurance company?

Not only that, I usually have the day's newspaper sitting on the passenger side (I read it during lunch). If I forget to lock the car someone may be able to copy it too. In fact even locked someone could put a digital camera to the window and at least copy the top of the front page. A hundred people could walk by my car and snap a photo of that newspaper! And their copy will be a digital copy! I will have provided means to digital-copy copyright theft. Hope the newspapers don't pay attention to the RIAA and see this way out of their financial problems!


RE: What a mess
By bhieb on 10/5/2007 9:24:52 AM , Rating: 2
quote:
Tell me, in what universe is it fair or correct that this woman would have to pay over $9k for sharing a song without any evidence that she actually did it?


Unfortunately this one. After all this was a jury trial, and what (ideally) would be a fair representation of her peers thinks she did it. So your "without any evidence" comment seems pretty lame. I don't think a jury would convict without ANY evidence. There must have been enough to convice 9 normal people to find her guilty.

Now don't get me wrong the fine is ridiculous, but so is your conclusion that she is somehow innocent.


RE: What a mess
By christojojo on 10/5/2007 3:52:03 PM , Rating: 2
I agree the pedophile stuff is a huge stretch. The more appropriate analogies would be speeding tickets and embezzlement.

The price for doing what was thought of as a small time crime is a crime. They are punishing for effect ala Nazis killing a village full of people in punishment for a small act of espionage.

The embezzlement could liken the fact that a person could steal millions/ billions of poor peoples hard earned money and receive a virtual slap on the wrist.

I am not sure why anyone would use such a hard lined analogy of a pedo equals file sharing. I do know in the golden olden days the saying "Beware of the squeaky clean, for they have many more skeletons in the closet."


RE: What a mess
By chrispyski on 10/4/2007 10:14:41 PM , Rating: 3
Thats pretty funny, because my Sony walkman phone came with Disc2Phone software, so they have nobody to blame for this theft than themselves.


RE: What a mess
By walk2k on 10/5/2007 11:54:48 AM , Rating: 2
Yeah really. If I buy a Sony(tm) brand computer, and a Sony(tm) CD burner, and some Sony(tm) brand blank CDs, then make a copy of my friend's (who paid for it) Sony Music(tm) brand CD.... suddenly I'm stealing over $200,000 from Sony?

The hell?


RE: What a mess
By Xerstead on 10/7/2007 7:33:52 AM , Rating: 2
And he will also be guilty for stealing $200,000 from Sony for making the Sony Music(tm) brand CD available for copying.
We were told the prices of CD's were high because of production/distribution costs. Now with digital distribution none of that is relevant, but we are still charged £15 for an album.
Sales of CD's are slipping as are the profits from them. This seems a great way to improve their business plan. $200,000 for a CD without paying any of the production costs for making that copy.


RE: What a mess
By scrapsma54 on 10/4/07, Rating: -1
RE: What a mess
By SirLucius on 10/4/2007 10:57:39 PM , Rating: 5
You clearly A.) Aren't a musician yourself, B.) Don't know any musicians, and C.) Have very little understanding of what goes into producing a whole album, let alone one song.

While the bare bones of a song may be written in one day, I've never known any musician that writes an album ready song in a day. Most songs take around 3 to 4 weeks minimum to get to an acceptable standard. And yes, while generic pop music might be more easily made than other genres, it still takes time to produce. The average time between album releases for most bands I listen to is around 2 years. That not only includes working in the studio, but multiple tours and promotions. I'm sure you've never sat down and tried to mix and master a track either. That process alone can take forever to get done right.

I'm not a fan of the RIAA/music industry, but to completely ignore the time and effort that goes into producing an album is just ignorant. Yeah, game developers and movie producers deserve our credit, but just because a song might be over in 4:30 minutes doesn't mean that it didn't take several months to get written, recorded, and edited to meet certain standards.


RE: What a mess
By duzytata on 10/5/2007 1:23:58 AM , Rating: 2
Just addressing the never part. Neil Young wrote and recorded a 10 song album in 9 days. "Living with War"

quote:
Written and recorded over the course of only nine days in March and April 2006,[1][3] its lyrics are in line with the early 1960s albums of folk artists such as Phil Ochs and Bob Dylan, though it is set to what Young calls "metal folk protest music"[4] courtesy of Young, bassist Rick Rosas, drummer Chad Cromwell and trumpet player Tommy Bray.
- http://en.wikipedia.org/wiki/Living_with_War


RE: What a mess
By SirLucius on 10/5/2007 1:41:05 AM , Rating: 3
Wow, that's pretty damn impressive. I'd never heard of anyone recording that fast. I've known some artists to write very quickly, but they spend a lot of time in the studio working on tones, the mix, etc. I guess what they say is true...never say never. :/


RE: What a mess
By wordsworm on 10/5/2007 6:50:04 AM , Rating: 2
Even faster would be Bob Dylan's album "Bob Dylan" in 2 days. But, he was a freak of nature - a genius among geniuses. But, as you know, it was a raw album without much tweaking. Your point is valid: most of what comes out can take a lot of time and money to complete.


RE: What a mess
By Oregonian2 on 10/5/2007 9:41:23 PM , Rating: 1
And those which are "live in Carnegie Hall Sept 19, 1923" (or whatever) probably took an hour or two for the recording itself. :-)


RE: What a mess
By lazygeisha on 10/4/2007 10:56:35 PM , Rating: 2
Some other articles I've reviewed seem to indicate that these precise instructions by the judge to the jury, "that all the RIAA had to prove was that the defendant shared her music library, not that anyone actually downloaded any files" are solid grounds for an appeal. It goes against years of case law and legal opinion, and I really hope she does appeal this finding of responsibility.

From what's been reported, it doesn't appear that the defendant's legal team really presented a solid defense to this case. What this woman needed were lawyers who have a much better grasp on these issues. The "We don't know what happened" defense is usually not the best plan.

I'm really surprised that the EFF didn't jump all over this case on her behalf.


RE: What a mess
By borismkv on 10/4/2007 11:16:58 PM , Rating: 2
I really do think her legal team dropped the ball on this case. The tack they took was entirely wrong for a civil defense case. Were this a criminal proceeding, RIAA would have been laughed out of court, but RIAA will never ever go that far, because they know they can't. What *should* have been done, in this case, is to go through the RIAA's legal proceedings and pick out every single case that they have *lost* because of innocence. The lawsuit against a dead person is the perfect example. RIAA supposedly had *proof* that this dead person was sharing files illegally. What does that kind of statement say about the *proof* they had to show in this trial. The defense clearly decided against attacking the RIAA, which, given the RIAA's soapbox testimony, would have worked *extremely* well at convincing a jury that this was a witch-hunt.


RE: What a mess
By FNG on 10/4/2007 11:46:16 PM , Rating: 2
I think they tried that and the judge had it struck from the record.


RE: What a mess
By walk2k on 10/5/2007 12:35:30 PM , Rating: 2
By that definition every library in the world is guilty of infringment.

If I borrow a book from the library and make a copy of it, the library can be sued for $200,000?

No of course not, that's ridiculous.


Wait a minute....
By Xavian on 10/4/2007 9:02:23 PM , Rating: 2
quote:
Forensic scientists could not find any evidence of file sharing on her new hard drive, and her old hard drive was not admitted as evidence.


So if there was no evidence on the PC, how could she be proved guilty beyond all reasonable doubt?

All this evidence seems more circumstantial then anything.




RE: Wait a minute....
By KristopherKubicki (blog) on 10/4/2007 9:06:15 PM , Rating: 3
quote:
So if there was no evidence on the PC, how could she be proved guilty beyond all reasonable doubt?

The burden of proof is considerably lower for civil cases.


RE: Wait a minute....
By BladeVenom on 10/4/2007 9:26:13 PM , Rating: 3
Maybe they should have gone ahead and sued that dead person that they were so sure was file sharing, with our court system they might have won.
http://www.afterdawn.com/news/archive/6038.cfm


RE: Wait a minute....
By darkpaw on 10/4/2007 9:57:00 PM , Rating: 2
This here is the key, its a civil case the RIAA only had to have a preponderance of the evidence (51%). Based on the evidence I've read from the case, the RIAA (as much as I personally dislike their tactics) proved their case better then the defense. I'm not a lawyer, I just took a bit of business law while working on my masters. Business law is mostly civil issues so we spent quite a bit of time on this sort of thing.

This really sucks for the lady and it just shows the RIAA's mafia tactics work. I bet most of the people they get are probably guility, but it is easy enough to fake information on the Internet that innocent people are getting screwed as well. For this lady, she probably should have settled cause she didn't seem to have any evidence at all.


RE: Wait a minute....
By TheTerl on 10/4/2007 10:26:09 PM , Rating: 3
quote:
For this lady, she probably should have settled cause she didn't seem to have any evidence at all.


I think that pretty well sums up this case. The RIAA has used a lot of shady tactics over the last few years, which deserve genuine scrutiny when brought to trial. Whether it was an ineffective attorney, the jury members, or just overwhelming guilt on her part, though, this woman's particular case was open and shut. I think we may see different results if more trials occur, when the evidence is not so overwhelmingly against the defendant.


RE: Wait a minute....
By mindless1 on 10/4/2007 11:03:20 PM , Rating: 2
What exactly do you propose is evidence of innocence? From the article: "U.S. District Judge Michael Davis ruled that one could be guilty ... RIAA did not need to establish that Thomas at her computer at the time her was accessed by investigators, nor did they need to prove that anyone actually downloaded the music she offered."

Get yourself a corrupt investigator, find out when someone is online and write the ISP a letter. Doesn't matter if the person is guilty, you then have evidence that the person has an internet account they use, but not that they or anyone else used it for any paritcular purpose yet. Suppose you have a screenshoot or log of some song titles. That's not evidence of anything, any child could make that in photoshop /etc. Why would they? How about $222,000.

I have no idea if this lady is innocent or guilty. I could make a guess but it would be inappropriate without all the details, not just general concepts of the details but every last little (sub-)detail.


RE: Wait a minute....
By FNG on 10/4/2007 11:42:58 PM , Rating: 2
That is a really good point. I would up rate this post to 222000 if I could. Who exactly verified that the songs were there? The RIAA? I think the defense should stand. They have no proof that the songs were even there because the hard drive was not able to be scoured. I personally, would appeal to a higher court because as you so succinctly put it "What exactly do you propose is evidence of innocence?"

The RIAA really has very little to go off of, in my opinion. Unless of course, she admitted the songs were there and being shared, since the purpose of a P2P network is to share... I actually haven't read up on the case, and to be honest more than likely won't...


RE: Wait a minute....
By Alexstarfire on 10/5/2007 1:10:42 AM , Rating: 2
Yea, they didn't really prove anything, other than maybe she had an account with Kazaa and had an internet account. I'd also have called there actual investigation into play. I mean, how did they come up with this information in the first place. Most of the time the way they get the information violates privacy in some form or another. If they can't even confirm that she ever had the songs I don't see how a jury could possibly believe that she was guilty.

On that note, I would like to say that this jury obviously couldn't have gone past the defense lawyer. And if it did go by that guy, then he's just a moron. That jury seems EXTREMELY RIAA sided. I mean, they picked an amateur musician and the others didn't even use the internet? WTF was that defense lawyer thinking. Even if they used the national percentages of people who used the internet you'd still have 1-2, maybe, on the jury who don't use the internet, but you wouldn't have the whole jury be ones who don't use the internet.

There are also other things to consider for evidence in the trial. I'd have brought up the fact that the RIAA uses P2P software to see how well a song is doing. I can fully understand why, but the fact that they use it in research should show that they support P2P usage in some fashion.

And about the outcome. I'd have argued quite strongly that $9000+ a song is simply outrageous. They've already come to a conclusion that each song only netted like a $750 loss if it was pirated. That's still a lot of money for 24 songs, but at least she wouldn't have to become homeless simply because of the F'in RIAA.


RE: Wait a minute....
By darkpaw on 10/5/2007 9:58:21 AM , Rating: 2
Good evidence for the defense would have been the original hard drive if she was in fact innocent. Even if the hard drive had a mechanical failure as indicated, she could have paid for recovery service and if the drive did not contain any material that would have been huge for her side. This would have been the best possible evidence she could have presented.

Yes, screenshots can be faked (just like any other document). If they were faked that would have been another avenue of defense that could have been persued. It is possible to prove an image is faked, but the defense only suggested the information could be faked. They did not do anything to show that the computer was infected by a zombie, the logs were faked, or anything. They just presented a bunch of what if scenarios.

When I first heard about this case, I was hoping the lady was definitely innocent and they'd really hand it to the RIAA for their tactics. It just didn't happen though becuase she had zero evidence of innocence and the RIAA had enough circumstantial evidence to convience the jury.


RE: Wait a minute....
By walk2k on 10/5/2007 1:36:48 PM , Rating: 2
Let's be honest here if they positively linked her real name to her Kazaa account that's pretty much all the evidence you need. Kazaa and every other p2p program is about 99.9% used for piracy. Even the completely computer-illiterate members of the jury would know that.


RE: Wait a minute....
By mindless1 on 10/6/2007 9:22:48 PM , Rating: 2
Absolutely not. Usign Kazaa is not evidence of particular offenses. If you want to claim "oh she must be a bad person", ok, if true, but that's not what the case was about!


RE: Wait a minute....
By borowki on 10/5/2007 7:12:09 PM , Rating: 2
The old hard-drive would have been good evidence if it were actually, eh, the old hard-drive. Unfortunately for Ms. Thomas, the jury got to hear that what she claimed as her old hard-drive was, in fact, a new drive. How freaking stupid the whole thing is. If you're going to tamper with evidence, don't ask Best Buy to do it for you--they keep records.


RE: Wait a minute....
By mindless1 on 10/6/2007 9:20:42 PM , Rating: 2
No, it is not possible to prove a screenshot is faked when it there is no original to contrast against. I guarantee I can 100% reproduce bit-for-bit, what an authentic screenshot of someone infringing would look like.


RE: Wait a minute....
By Procurion on 10/5/2007 8:58:24 AM , Rating: 2
Kris, as one who followed the case through arstechnica reports, the big issue (biggest?) that caused the defense to lose ALL chance was when the judge decided it before it went to the jury. Prior to giving the jury the case, the judge decided to change instruction 14. That instruction was that the jury had to decide that Thomas was guilty because actual transfers took place. The RIAA attorney argued and had the judge change the burden of proof to read that she just made the music available, without proving that she had actually DONE anything.

I make a reasonable amount of money and have extra to spend on luxuries. This year I have spent over $5k on computers and games, feeling like it was money well spent. I have spent less than $100 on music because the actual CD product is extremely expensive, with maybe two or three good songs on the entire CD-I am not one to listen to a CD front-to-back. The real reason for piracy is that the product is overpriced.


RE: Wait a minute....
By System48 on 10/4/2007 9:06:19 PM , Rating: 2
Can the verdict be overturned due to an incompetent (read: stupid) jury.


RE: Wait a minute....
By BladeVenom on 10/4/2007 9:09:21 PM , Rating: 3
Might also want to check to see if any of the jurors had any unusually large deposits to their bank accounts recently.


RE: Wait a minute....
By borowki on 10/5/2007 12:34:02 PM , Rating: 2
Here's a good article about what happened:

http://www.startribune.com/467/story/1462417.html

The lady was basically caught lying to the jury. That's probably a big reason why she lost.


RE: Wait a minute....
By borowki on 10/5/2007 12:36:46 PM , Rating: 2
Destroying evidence is not looked upon kindly either.


Disgusting
By SirLucius on 10/4/2007 9:02:40 PM , Rating: 2
Ugh, this ruling just upsets me. Only the RIAA would go after a single mother over 24 songs, and extort $220,000 to boot. If I were her, I'd already be in the process of appealing the decision.




RE: Disgusting
By TomCorelis on 10/4/2007 9:11:41 PM , Rating: 2
Fact is, the $220,000 was selected by the jury... and some of the stuff I'd read indicated that a very large percentage of the jury did not download music and/or use the internet--and one of the jurors was supposedly an amateur musician. I'm not sure what to think about that... but then I'm not sure what kind of jury would string up a single person for over 200 grand for copyright infringement...


RE: Disgusting
By SirLucius on 10/4/2007 9:20:31 PM , Rating: 2
Wow, I hadn't heard about the jury make up. sounds like a fair and well balanced jury to me. *sarcasm*


RE: Disgusting
By Master Kenobi (blog) on 10/4/2007 9:55:55 PM , Rating: 2
This will be appealed and likely declared a mistrial or knocked down to some nominal fee like "500 bux".


RE: Disgusting
By kitchme on 10/4/2007 10:12:47 PM , Rating: 2
Wish I could see into the future.


RE: Disgusting
By Polynikes on 10/4/2007 10:15:07 PM , Rating: 2
Even if it wasn't, how the hell do they expect her to pay that? I'd refuse outright.


RE: Disgusting
By mdogs444 on 10/4/2007 10:45:57 PM , Rating: 2
I dont know entirely about civil suits, but they can seek damages by having a % automatically deducted from pay from your employer.

But im not sure what kind of cases that revolves around.


RE: Disgusting
By masher2 (blog) on 10/5/2007 12:19:45 AM , Rating: 2
An award in any civil case is grounds for having your wages garnished, and/or your home and other hard assets seized.


RE: Disgusting
By rdeegvainl on 10/5/2007 1:35:01 AM , Rating: 4
could she just then provide them a copy of the songs? cause seems to me if they are worth that much she should just give them equal value.


RE: Disgusting
By JoshuaBuss on 10/7/07, Rating: -1
RE: Disgusting
By borismkv on 10/4/2007 11:20:10 PM , Rating: 2
Civil awards are usually paid at a small rate for a long period of time. She could potentially declare bankruptcy and not have to pay all of the fee, but the damage to her credit would be highly destructive for many many years.


RE: Disgusting
By walk2k on 10/5/2007 1:30:19 PM , Rating: 2
Oh she won't pay a dime. First of all they will appeal this forever, and I'm sure there are people setting up legal defense funds as we speak. Secondly she could simply declare bankrupcy if she had to. The RIAA won't get a dime of that money.


RE: Disgusting
By masher2 (blog) on 10/5/2007 4:18:42 PM , Rating: 2
You haven't seen the new bankruptcy laws. Unless she was already flat broke to start with, she won't walk away from this without paying a respectable portion of the amount.


Appeal imminent
By TomCorelis on 10/4/2007 9:14:58 PM , Rating: 3
I have a strong feeling that this decision will be overturned by a higher court....




RE: Appeal imminent
By Master Kenobi (blog) on 10/4/2007 9:59:06 PM , Rating: 2
I concur. Anyone with half a clue will have this appealed and a judge likely to look at 24 songs and laugh at the amount awarded in damages. Trial by Jury is laughable at best. Until they start staffing juries by people who understand the subject matter rather than random fools from society that haven't a clue and are incredibly gullible this will keep happening. Don't worry though I would never make it on a jury panel, I tend to analyze logically and methodically and lawyers don't like that.


RE: Appeal imminent
By ElFenix on 10/4/2007 10:43:18 PM , Rating: 1
if the damages are specified by statute (and they are), as long as the jury was within that range (and it was) there is nothing about the damages that is laughable.

and the defense should have done a better job of educating the jury, if that is your complaint.

but she really had no case, so she couldn't educate the jury. other than claiming she was the victim of some malicious attack (for which she had no proof), what did she have? nothing. nothing + nothing = nothing.

but really insightful post from someone who claims to analyze methodically and logically.


RE: Appeal imminent
By Master Kenobi (blog) on 10/5/2007 7:40:08 AM , Rating: 2
Ah, go check out that mcdonalds case, the one where that lady spilled the coffee on her lap? After several appeals she went from winning 2.9 Million to 640 Thousand. Further appeals resulted in an out of court settlement totaling less than 600 Thousand. So, yes this would not likely hold up in an appeal.


RE: Appeal imminent
By ElFenix on 10/5/2007 1:02:08 PM , Rating: 2
first, it was the trial judge that reduced the damages, not an appeal.

second, the damages reduced were the punitive damages, not the compensatory damages (which were $200,000 - 20% responsiblity of the old woman). the punitives were reduced from several million to 3x the compensatory damages (3x is pretty traditional for punitive damages). so the total became 640 (160 compensatory + 480 punitive).

unless i've completely misread something, these damages were not 'punitive' (though, obviously that is the intent of the statute). these are regular statutory compensatory damages for an act the value of which can be hard to determine.

in other words, the mcdonalds reduction isn't really on point here. so, as a licensed attorney, i am going to respectfully disagree with your reading of the law.


RE: Appeal imminent
By Master Kenobi (blog) on 10/5/2007 7:44:11 AM , Rating: 2
quote:
but she really had no case, so she couldn't educate the jury. other than claiming she was the victim of some malicious attack (for which she had no proof), what did she have? nothing. nothing + nothing = nothing.

Well, I think her lawyer isn't very good for starters. Given the little information we have on this case and what happened in court, it would appear the RIAA didn't prove anything. They won without proof, everything was speculation. The RIAA lawyers must have made a very convincing argument and this lady must have hung herself in the trial because I can't see how she could lose unless she admitted to information in court. I would have outright denied the whole thing and told them to prove it, but that's just me.


RE: Appeal imminent
By borowki on 10/5/2007 11:06:38 AM , Rating: 4
They proved that those 24 songs were offered to the public through her home IP address, using a cable modem that she owns, under her user name. To me that's plenty evidence enough, given how prevalent file-sharing is.

If her lawyer is any good he would have advise her to settle. Somehow they got the idea that the court thinks like your typical DailyTech ranter, who believes the RIAA should lose every case just because it's the RIAA.


RE: Appeal imminent
By masher2 (blog) on 10/5/2007 1:36:21 PM , Rating: 2
> "a judge likely to look at 24 songs and laugh at the amount awarded in damages"

The law specificies a fine of up to $150,000 per item for willful infringement. Given she was charged slightly less than $10,000 per song, she got off a lit lighter than she could have.


That's alot of money
By gigahertz20 on 10/4/2007 9:03:43 PM , Rating: 2
This is exactly why I don't use P2P software like Kazaa, I only use private bittorent tracking sites. I don't think it really matters what you use though, I know when I connect to a torrent using uTorrent I can see everybodies IP address that is downloading or uploading the torrent file. I think that is all they need to bust your ass.

I guess the best thing to do is spoof your IP address, I know there is software out there that can do it but I've always read it usually doesn't work well.




RE: That's alot of money
By Xavian on 10/4/2007 9:08:23 PM , Rating: 2
What you can do is use an ip-blocker like peerguardian to stop such RIAA/MPAA dragnets like "Media Defender" from connecting to your PC and providing circumstantial evidence to bring you to court.


RE: That's alot of money
By KristopherKubicki (blog) on 10/4/2007 9:09:29 PM , Rating: 2
quote:
I guess the best thing to do is spoof your IP address, I know there is software out there that can do it but I've always read it usually doesn't work well.

You can't have it both ways. TCP connections don't allow you to spoof and handshake at the same time. You could probably do it via proxy, but I don't think you're going to get much speed out of that.


RE: That's alot of money
By drebo on 10/5/2007 2:05:00 AM , Rating: 2
There's always TOR.


RE: That's alot of money
By Master Kenobi (blog) on 10/5/2007 10:52:21 AM , Rating: 2
Just hijack your neighbor's wireless connection.


RE: That's alot of money
By tjr508 on 10/5/2007 11:16:37 AM , Rating: 2
Seriously. A $10 card supporting packet injection and a second laptop can crack WEP in a matter of minutes now-a-days.

Oh wait, that's illegal too.


RE: That's alot of money
By walk2k on 10/5/2007 1:00:59 PM , Rating: 2
Or you can just not download music?

Though I have a bit of a problem with the monetary amount here, $9000 each for something you can buy for less than $1, BIT of a steep increase there??

I do not agree with piracy or any of the lame excuses people provide, like "it's too expensive". If you don't pay for it, you don't deserve it. That is the way the world works. If you want to start your own music label, and not pay the musicians/songwriters/engineers/producers/etc etc and give the music away for free..... yeah good luck with that.


This is an easy defense!
By JackBurton on 10/4/2007 11:09:02 PM , Rating: 4
Easy defense...

Your honor, I don't know about you, but I was brought up to share. And my teachers always said, if you don't have enough for the entire class, then put it away. Well I've grown up now, and I DO have enough for the class. As a matter of fact, I have enough for EVERYONE. I also like to ask you, "what would Jesus do?" Jesus fed a starving crowd by magically duplicating bread and fish for everyone to eat. Would you sue Jesus for copyright infringement for multiplying bread and fish without the consent of the bread and fish store owners? He wasn't authorized to make copied. And I'm sure the bread and fish store owners would claim they lost millions of shells (or whatever they used back then for money) due to Jesus' "illegal" duplication tricks. I for one think Jesus with his magical powers did more good than harm for those people. And if you rule against my client, it would be like ruling against Jesus. So ladies and gentlemen of the jury, ask yourself one thing, do you WANT to burn in hell? I think not.

Thank you your honor.




RE: This is an easy defense!
By MamiyaOtaru on 10/5/2007 1:53:16 AM , Rating: 2
Does Chewbacca live on Endor?


RE: This is an easy defense!
By rdeegvainl on 10/5/2007 6:01:11 AM , Rating: 3
The Prosecution would like to respond that, jesus and his father owned the copyright to the fish, gave the fish permissions to use the copyright, and the fish and bread owners only sold the fish and bread. Not to mention the copyright on bread had expired MANY MANY years before.


RE: This is an easy defense!
By JackBurton on 10/5/2007 9:35:57 AM , Rating: 1
Your honor, there is no evidence of this so called "copyright" that Jesus and his father held. As a matter of fact, there is no evidence of his father.

Thank you.


RIAA = screwed...
By theangryoffender on 10/4/2007 10:50:33 PM , Rating: 2
This case’s appeal is going to put a busted ostrich egg in the face of both the judge AND the RIAA. The instructions were clearly outside of the scope of the law, and on top of that, the RIAA never actually proved that DAMAGES occurred. Also, why has no one argued that the DOWNLOADER is responsible for infringement rather than the person “making available?” In the real world, if you make a copy of a CD for someone else, you’re infringing, but if someone makes a copy of a copyrighted item that you, the library, or a rental chain like Blockbuster lends or rents to them, THEY have committed the infringement. There is no feasible way to defeat this analogy. The actual copyright violation occurs not because of the (potentially accidental) availability of the file, but rather because the downloader, copier, or ripper willingly and intentionally chose to make a duplication of the file that would not fall under a fair use exemption.

The jury has essentially made you liable for infringement if your friend borrows a CD from you and decides to rip it without your knowledge or consent before returning it.

I would expect Blockbuster to file an amicus brief for the appeal, because if this ruling is allowed to stand, Blockbuster is “making available” a TON of copyrighted media, and they commit copyright infringement with every rental that chooses to duplicate the rented item. They made it available, after all.

The utter stupidity of the instructions is easily found when the implications of those instructions are applied to all situations that would fall under the wording of those instructions, and that’s why this is going to be one hell of an EASY appeal.




RE: RIAA = screwed...
By CyborgTMT on 10/4/2007 11:14:47 PM , Rating: 1
Exactly my thoughts on it. I really think her lawyer dropped the ball on this part. I don't think her story of not using Napster is the truth, but unless you can prove that she willingly gave away copyrighted songs illegally this should have been an open and close case. Reading through the transcripts shows her lawyer was not prepared to handle the case against her. The 'making available' stance has been shot down repeatedly by the courts and the few that have passed through are being killed in appeals. And no matter what the RIAA might have in terms of a case against her, that is the only thing that they can actually prove without doubt. If an appeals court strikes that down, RIAA has no case.


RE: RIAA = screwed...
By ElFenix on 10/5/2007 12:36:37 AM , Rating: 2
except that blockbuster probably states in it's rental agreement that you can't make copies. renting media is clearly a legal activity right now, and i doubt any judge is going to be boneheaded enough to find the law as 'blockbuster is liable for infringement because someone violated their agreement with blockbuster.' or because someone ripped your CD without your knowledge or consent.

digital is different though. by sharing the songs the host impliedly consented to allow people to make copies of what the host is sharing. and the host's computer is sending them the copy. maybe that is the thing, it is the host's computer that is actually reading the bits off the host's drive and sending them to someone else, not the person who requested the file. additionally it takes two to tango, so i don't think arguing that 'the downloader did it!' would be much of a defense in the situation we had here.

i do agree that the jury instruction appears to be outside the law (that is, the plaintiff didn't have to present evidence that the files were copied, only that they were shared). but then again, i'm not a copyright lawyer. are you?

and there are plenty of areas of the law where you don't have to prove damages occurred (certain types of libel, for instance). that is kind of the point of statutory damages.


RE: RIAA = screwed...
By CU on 10/5/2007 9:20:22 AM , Rating: 2
Then P2P networks need to start adding some text that says something like this is used to only share files to the same person that ones it, so that the owner has access to their files anywhere. It is P2P so that their files can be located on mult. computers they own and downloaded faster than if it was shared on just one computer. That should place the blame on the downloader.

Also I don't see how proving she had a kazza account proves anything. Maybe she just installed it to see what it was or to get some files that are legal to download.


RE: RIAA = screwed...
By ElFenix on 10/7/2007 10:29:22 PM , Rating: 2
the kazaa account was sharing copyrighted music files.

the music industry proved:
a) there was a kazaa account sharing copyrighted music files
b) the kazaa account had a specific IP address
c) the IP address in question was assigned to her cable modem
d) the kazaa account username was the same as a username that she used for other internet services
about the only thing that they didn't prove is that she actually uploaded some of the shared copyrighted music. the instruction given to the jury didn't require the music industry to do so (which is where any appeal is going to come from). they also didn't prove damages, but i don't think evidence of damages must be shown to get the statutory damages. damages may be implied merely from infringement, but i'm not certain.

she, on the other hand, proved nothing. the only evidence she had was her own mouth, which is a pretty bad thing to have to rely on.


Since When...?
By clovell on 10/5/2007 10:21:22 AM , Rating: 2
Since when did you need a username to use P2P?




RE: Since When...?
By Master Kenobi (blog) on 10/5/2007 10:55:48 AM , Rating: 1
A lot of them let you have one, its not like a login though, you can change it at will and there is no registration. Most people choose the default "software name and shitloads of numbers". I would never make a P2P name something other than some randomg key smashing. She was stupid and actually used a common easily tracked name that she used elsewhere. Notice how all these "pirates" seem to be regular joe sixpack style users? I haven't seen one good techie up there yet for this, because they aren't stupid and don't make such rookie mistakes.


RE: Since When...?
By clovell on 10/5/2007 1:41:12 PM , Rating: 2
Oh. Because I thought the defense was almost respectable until I heard the unique username and how she used it for everything else.

Really makes you think twice about that kind of stuff...


So the lesson here is . . .
By djkrypplephite on 10/5/2007 2:51:49 AM , Rating: 2
Use a public WiFi spot and you're invincible.




By Master Kenobi (blog) on 10/5/2007 7:46:13 AM , Rating: 2
Exactly... OR go ahead and use our neighbor's wi-fi :) Most people dont secure them anyways.


Guilty until proven innocent ?
By softwiz on 10/5/2007 12:05:52 PM , Rating: 2
Am I missing something or has she been convicted here simply because they could not prove her innocence ?

If so, that seems backwards for the US Judicial system.




RE: Guilty until proven innocent ?
By walk2k on 10/5/2007 1:32:41 PM , Rating: 2
She's guilty of not being able to hire better lawyers than the other guy. That is exactly the US Judicial system.


The RIAA are gangsters
By Parhel on 10/5/2007 12:15:11 PM , Rating: 2
quote:
“This is what can happen if you don’t settle,” said RIAA attorney Richard Gabriels, speaking to reporters just outside the Duluth, Minnesota Courthouse, minutes after Jammie Thomas was found liable for copyright infringement to the tune of $222,000.


It's comments like that that really make me dislike the RIAA. They are low-life gangsters - thugs - and they should be taken to court themselves and charged with racketeering.

If they feel they are in the right, then they should have no problem taking it to court. In fact, they should prefer it. Why do they feel the need to threaten the public into settling like that?




RE: The RIAA are gangsters
By mmntech on 10/5/2007 12:35:39 PM , Rating: 2
I agree with that. The problem with RIAA is they seem to get away with stuff that a lot of similar organizations do not. Cartels are supposedly illegal for one. I remember reading an article on the BBC about the UK based author trying to buy songs from Amazon's new service, and being denied because he was not a US resident, however, there was no such blocks on movies. Even the MPAA doesn't have the strangle hold as RIAA does.

On the case itself. Did she do it? I don't know. I've always been strongly against this type of civil case since it seems like an abuse of court if the person hasn't been held criminally liable. RIAA has long been strong arming itself in the music industry. They fight their own customers, their suppliers. Apple, XM, internet radio are all in or have been in battles with them at one point over pricing or trying to deny fair use. Of course the record labels have the right to earn money from their products, but the way they're going about it is definitely an anti-trust violation. There needs to be some EU style hearings over these groups like what was done with Microsoft.

I personally don't think this is worth $222,000 even if she did download them. Maybe a grand at most. She likely won't end up paying that much though. Fortunately, RIAA won't see any of that money, since it will have to be used to cover their legal fees.


Wisdom
By crystal clear on 10/5/2007 2:30:45 AM , Rating: 2
quote:
she was held liable for $9,250 worth of damages, coming to a grand total of $222,000.


With due respect to the judge/s dont they ever take into consideration when passing such judgement, the ability of the guilty to pay such fines.

Assuming she does not have the money & or the ability to pay this fine & appeals on this ground,then what ?

If she files for bankcruptcy,then what ?

If she owns her house then you throw her out of the house & make her HOMELESS with 2 kids ?

Then you take away her kids on grounds that she is unable to look after them.

All this for money thats small change for the RIAA,an amount they would pay to their lawyer for this case maybe.

Judges should think for a moment on all this.




The disgusting part:
By PrezWeezy on 10/5/2007 1:26:53 PM , Rating: 2
In this it named several artists who's songs were being shared by Thomas, yet I would guess that not a single one of them will recieve a single cent of what has been awarded to the RIAA. In my opinion, if they are going to sue people for this kind of thing, every penny awarded to them because of a particular bands art should be given back to the artists. But instead we have a huge bureaucratic entity who is screwing the users and the artists at the same time. Even when artists decide that they WANT their art shared p2p (because it generates more concert sales) the RIAA will still prosecute and collect the money. It sickens me to see the people who are actually getting hurt by this (the bands) recieving none of the reward from the RIAA. It's deplorable and I can't believe the artists haven't sued the RIAA yet for what they are doing...




By just4U on 10/6/2007 2:24:11 PM , Rating: 2
Do you know anyone who owns a computer who is not guilty of some sort of copyright infringement? If they don't own a computer could be a fax, copier, Vcr, Dvd recorder, camcorder (what ever) Do you know anyone? I don't. I mean there are some people I'd think OH ok yeah there's one then I see something and go .. oh Ok, yeah their guilty to.

It's so very odd.. I can run out with my camera and snap photo's of the stars in compromizing ways without their consent while invading their privacy but If I should download one of their songs... there is going to be hell to pay!!! (kinda screwed up huh?)

Our way of life has been changing rapidly and the laws should be changing to reflect that. As far as I am concerned our entire society (according to Copy Right laws) has been turned into theives and in a way we are all supposedly liable. You may or may not know it but I am almost 100% certain that everyone is guilty of it to one degree or another .. so what to do.




Deception at its finest!
By Setsunayaki on 10/7/2007 7:23:26 AM , Rating: 2
Anyone with half a brain can truly see through this...

Here is what happened....as theorized by most who are in the legal profession.

Most lawyers who know about laws and resolutions know that legally an ISP is responsible for identifying to a user what he or she can utilize a controlled product for...Most ISPs encourage downloading, specially with early comcast and verizon commercials that show person downloading music from napster and kazza....

Lawyers have endless testemonials from users who subscribe to ISPs......In fact, all of the evidence appeals to the JURY and defense in an overwhelming fashion....

However, the RIAA had always been losing cases...without any real major victories....Now without any major victories in the legal system, one can not refer to a case to aid the prosecution secure victories in future cases...So we do what practically every important company does in one form or another...

STAGED A CASE.....

The RIAA can easilly find someone who supports their cause...along with a judge who will be bribed to support the cause. This is easy as people in the US are always BRIBED in passing laws...and USA TODAY loves documenting such things in important cases...

So they take one person, have that person download music....after planning...they make a case of it...The defendent is fed by the plaintiff....along with the lawyer and they work together to actually create a guilty verdict...

the judge imposes a harsh sentence...Then the RIAA covers the fine in the case, otherwise the subject will come forward....as so far there isnt an appeal for this case and this case would be PERFECT to appeal and even win...

The result?

Now a case exists and everytime someone is sued....they cite the case and Immediately it becomes easier to convict practically anyone they please...

Yeah, I know....You will all say that I am insane and crazy...but I attended a legal forum that had 37 lawyers debate about this case....and most of these lawyers agreed that this was a case that was so shady.....that the only real way it passed through was to have justice setup..

The RIAA is desperate and since the only way it can collect money is through the Judicial Branch, by actively creating cases which rule on certain decisions...they can actively use existing cases to "enforce" laws that do not exist....

Example of another time when this happened in our history as a nation:

Just study segregation and how judges through court cases, used decisions to actually enforce their opinion of what the law should be, which became law......though not passed through congress....

Anytime the supreme court says "I believe that decision X is not constitutional" when laws exist or dont exist in the matter....All laws existing in the matter...instantly are changed....while the Congress actually passes laws....the Judicial branch INTERPRETS, but this interpretations generates laws because if they claim that something is unconstitutional...the congress can not create a LAW directly against the ruling of a judge.....

Even Walmart and Home Depot have cases in which they have manipulated the court system into having laws created based on interpretation that is in the interest of the company, rather than the interest of people......

Well take care of yourselves...




RiadRader FTW!
By Stas on 10/11/2007 2:06:07 AM , Rating: 2
Damn, I wanted to buy a couple of The All-American Rejects albums... But they are involved with RIAA. Oh well, I'll buy something from Fall Out Boy instead :)
Screw you, RIAA.




Jury Makeup, by John le *$#@ski
By stepone on 10/5/2007 6:35:48 AM , Rating: 1
"Juries are made up of 12 people so stupid they couldn't think up a way of getting out of jury duty."

------ John le Shitski




CAUTION!!!
By A5un on 10/4/07, Rating: -1
"Paying an extra $500 for a computer in this environment -- same piece of hardware -- paying $500 more to get a logo on it? I think that's a more challenging proposition for the average person than it used to be." -- Steve Ballmer

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