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RIAA v. Thomas will get a second attempt

The retrial for the RIAA’s landmark $222,000 judgment against Duluth, Minnesota woman Jammie Thomas will begin March 9, after a federal judge tossed out the original verdict last month.

In a first-of-its-kind four day trial last October, a jury found Thomas liable for copyright infringement at a rate of $9,250 per song. Of the 1,700 songs files that the RIAA said Thomas made available, it elected to seek damages on 24 of them – from artists such as AFI, Green Day, and Aerosmith – reaching the breathtaking grand total of $222,000.

U.S. District Court Chief Judge Michael Davis declared a mistrial last month, after finding that RIAA lawyers misguided the jury with an erroneous instruction: Jury Instruction No. 15 told jurors to consider the act of making a copyrighted song available for download (via a P2P client’s shared folder) equivalent to the act of infringement. Because Thomas was not found to have committed actual copyright infringement – proving a thing is impossible, claims the RIAA, because it cannot monitor all the different connections P2P clients make to each other – RIAA lawyers generally equate making available with actually trading music.

“Requiring proof of actual transfers would cripple efforts to enforce copyright owners' rights online,” said RIAA attorney Timothy Reynolds last month. “[It] would solely benefit those who seek to freeload off plaintiff's investment.”

Davis announced he had doubts about the decision last May, after a slew of similar cases in Florida and Arizona ruled in the defendants’ favor, striking down the “making available” argument. Upon looking into the matter sua sponte – on his own accord – Davis says he found a 1993 ruling from the 8th circuit Court of Appeals that requires evidence of “actual dissemination of copies or phonorecords” in order to prove copyright infringement. The 1993 decision, which featured prominently in the Florida and Arizona decisions, was never mentioned in Thomas’ original trial.

The RIAA promised an appeal to Davis’ September order, “either now or after a full retrial.” (PDF)



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By Creig on 10/31/2008 8:24:20 AM , Rating: 5
quote:
“Requiring proof of actual transfers would cripple efforts to enforce copyright owners' rights online,” said RIAA attorney Timothy Reynolds last month. “[It] would solely benefit those who seek to freeload off plaintiff's investment.”


Yes, let's not actually require proof that a crime was committed. That would be silly in a court of law. :P




By nafhan on 10/31/2008 9:22:01 AM , Rating: 3
If "making available" were a crime, couldn't Netflix and other video rental places get in trouble? They are "making available" quite a lot of digital video content, and getting paid to do so! There are people who make copies of every movie they rent (not me, I usually only watch movies once).


By TomCorelis on 10/31/2008 3:15:27 PM , Rating: 2
They have a rental agreement worked out that covers their business model.

Remember: piracy is a civil, not criminal, issue.


This missed an opportunity
By dsx724 on 11/2/2008 2:39:14 PM , Rating: 3
The Music Industry didn't see the opportunity in network distribution of digital music when it first began so third party and freeware developers filled in the void during the internet transition. Now, the industry is trying to litigate for its right to the entire market, ignoring the unpaid work that people put into create that market. That is theft by ignorance.

Many people forget that society is a cooperative, not a race. The industry failed to cooperate (because they thought it would canibalize their CD sales) and lost. People lost too because they weren't taught proper edicate when it comes to copyright. This is a lose-lose situation.




By pentiuman on 11/3/2008 2:31:20 PM , Rating: 2
“Requiring proof of actual transfers would cripple efforts to enforce copyright owners' rights online,” said RIAA attorney Timothy Reynolds last month."

What is the difference between the criminals arrested in the movie "Minority Report", before they had actually committed a crime, and RIAA enforcers taking people to Court for crimes they COULD, but not necessarily DID commit, because they enable file sharing in a program? This is getting ridiculous!

I feel the RIAA needs to forget about file sharing - period! They should go after the type of piracy that they CAN prove, like conterfeit CD's, etc.

-Otherwise, the RIAA needs to find a way for the law to be interpreted making the sharing software illegal to be written or used. They could not do that (yet), since the software can and is used to share freely distributable files, albeit even if only a small % of the sharing done with the program(s) is legal.

-So, perhaps the RIAA needs to get a Court to authorize subpeonas (or whoever and whatever) to intercept or trace actual file transfers for the proof. - Which can't be done without notification to the person, giving them the opportunity to contest the tracing request, method, or results.

Side point: Artists are already not making the type of money they deserve due to the music industry figures - but you don't see the RIAA standing up for them do you? (RIAA is a tool of profit for a few - not really much benefit to the greater industry, nor the consumers)!!!




Denial doesn't change copyright law
By Beenthere on 10/31/08, Rating: -1
RE: Denial doesn't change copyright law
By omnicronx on 10/31/2008 9:51:02 AM , Rating: 5
quote:
a 1993 ruling from the 8th circuit Court of Appeals that requires evidence of “actual dissemination of copies or phonorecords” in order to prove copyright infringement.
Obviously you lack reading comprehension. The entire case was deemed a mistrial because RIAA lawyers claimed something as law to the jury, that was not. And a previous precedent such as the case above, basically states that they have to prove the files were transferred, which the RIAA have already stated they can't do. Yes copyright infringement is illegal, but that does not make the RIAA exempt from following the law. Regardless of your feelings, you are innocent until proven guilty, and a bunch of files in your shared directory, without proof of any kind of transfer will not and should not hold up in court.

The RIAA chooses to pursue these stupid cases like there is not another alternative. All they would have had to do is download a file from her shared directory, and voila, proof of sharing. Instead they go after dead grandmas, children, and people who barely download music with merely searching for shared files, and logging the IP's. I have absolutely no sympathy for the RIAA and their tactics, and personally I think they should be banned from bringing cases to the court after continuous rulings against them for the exact same charge, having files in a shared folder.


RE: Denial doesn't change copyright law
By glitchc on 10/31/2008 10:03:31 AM , Rating: 4
quote:
All they would have had to do is download a file from her shared directory, and voila, proof of sharing.


Just wanted to add that this technique has been tried by the RIAA, a la MediaSentry, and subsequently rejected by the court. There is one specific case where MediaSentry did download files from the user in such a manner, but the judged ruled against them, as a copyright holder cannot violate his/her own copyright.


RE: Denial doesn't change copyright law
By TomCorelis on 10/31/2008 3:17:34 PM , Rating: 2
I believe the specific case law states something along the lines of "a copyright holder, or one of their agents, can not infringe their own copyright."


By glitchc on 11/25/2008 8:34:09 PM , Rating: 2
Thanks for clarifying, Tom.

PS: Sorry for the late response. I do not check my comments often.


By foolsgambit11 on 11/1/2008 8:47:58 PM , Rating: 2
Just want to point out that reading comprehension may not be your strong suit, either. It wasn't the RIAA that gave the instructions to the jury, it was the judge.

It's vastly different. If the RIAA says that making available is illegal to the jury, the defense can say, 'no, that's not right.' But when the judge gives the instructions to the jury to regard making available as infringement, the jury doesn't get a counterargument to consider.


RE: Denial doesn't change copyright law
By Staples on 10/31/08, Rating: -1
By Expunge on 10/31/2008 10:05:40 AM , Rating: 4
Puhlease.. what is piracy overall in the US, less than 20% maybe. What is Piracy in China, 95% - 98%. It's not about "protecting the artists" because if it were they would have permanent offices in China, it's a money grab pure and simple.

RIAA's business plan is simple.. SUE!, SUE!!, SUE!!! Facts be damned.


By omnicronx on 10/31/2008 10:14:09 AM , Rating: 4
Pfft, the Music industry is just about the only industry that dug their own grave in regards to piracy. They had a chance a long time ago to invest in digital downloads, but being the cash mongers the RIAA are, they decided that they should not have to give up their extremely high margin products (CD's) and as such they let companies like Napster, and Apple flourish, taking away from the industry that could have easily been theirs.

The Music industry did not adjust to the times, and now they are feeling the heat, although they are still making millions upon millions, and artists are making less and less from album sales. In fact many artists use their albums as a promotion for the concerts, which is where the majority of artists make their money, touring. In other words, please do not argue that we are taking away from the artists either, as they have been all but cut out from records sales, unless they fought for it in their contract.

I do not endorse copyright infringement with games, movies, or TV shows, but I just can't feel one bit sorry for the music industry.


RE: Denial doesn't change copyright law
By tastyratz on 10/31/2008 10:14:33 AM , Rating: 4
I guess you weren't paying attention.
The issue with this case isn't about "those damn pirates" its about persecuting someone for a digital crime without actual evidence of the crime taking place.

Whether or not you agree with piracy its in your best interest for the Riaa to lose this case - because it sets precedence for digital lawsuits from crimes you "think" someone "probably" did or will do.

Would you support a lawsuit for persecuting someone who gets a gun license for murder since there's a good chance they might be getting it to shoot someone? I heard he yelled at his wife once... must be getting it to shoot her.

Making available is NOT evidence of sharing...

Period


RE: Denial doesn't change copyright law
By Staples on 10/31/08, Rating: -1
By johnbuk on 10/31/2008 11:19:51 AM , Rating: 2
It's even more than that...if "making available" is a crime, then the next step might be to say that anyone who has their computer connected to the internet is making available anything on that computer because it's possible for it to be accessed by others...sounds far fetched, but stating that someone cost the music industry $2000 for a song that might or might not have been downloaded illegally by someone is far fetched too.

Some people are also missing the point that the RAII's true goal with this is to set the "making available" precedent. Reading about this case in other places, the RAII is claiming that they will win the re-trial because they can prove that the songs in question were downloaded illegally. I'm guessing they probably can provide such proof but the reason they didn't want to bring that up in the first trial is because the next logical step (IMO) is that they can prove that someone made something available and that it was illegally downloaded by others, then they should have to provide proof of actual damages that occured as a result (i.e., how many times was it downloaded). The real issue is that the RIAA doesn't want to have to provide proof of actual damages because that is considerably more difficult to do and would likely greatly lessen the amount that they get from these lawsuits.


RE: Denial doesn't change copyright law
By SavagePotato on 10/31/2008 11:21:14 AM , Rating: 4
I am pretty sure you get modded down for going off topic to get on a soapbox about pirates.

The issue at hand is trying people for crimes without evidence. Regardless of how much you think ah she's obviously guilty anyway, yadda yadda, the burden of proof exists for a reason.

As soon as you start convicting people without evidence it's just a bit of a slippery slope. Do the prosecutors get to get away with ah come on, he looks like a murderer anyway doesn't he, send em to jail? Be careful what kind of justice system you cheer for when it's you or your grandma getting sued for 200k dollars for music you didn't download and being railroaded with no proof.

Sounds more like McCarthyism than justice. Use it for your own personal soapbox to change topic and lambaste pirates, well yeah, that would be when you are going to get modded down.


RE: Denial doesn't change copyright law
By Regs on 10/31/2008 3:49:50 PM , Rating: 2
Furthermore, the prosecution has resources unavailable to the average criminal defendant. Therefore, it is imperative that
information which is essential to the defense in the hands of the prosecution be made available to the accused. If trials are
indeed searches for the truth rather than efforts to conceal it, full and fair disclosure [**89] is necessary to protect and
preserve the rights of the accused against the awesome power of the accusor.

Although extended appeals in criminal matters have been widely criticized, the need for review is amply demonstrated by this
matter. There is a substantial danger that our society, concerned about the growth of crime, will retreat from the safeguards and
rights accorded to the accused by the constitution. The need to combat crime should never be utilized to justify an erosion of
our fundamental guarantees. Indeed, the growing volume of criminal cases should make us even more vigilant; the greater the
quantity -- the greater the risk to the quality of justice.


RE: Denial doesn't change copyright law
By Regs on 10/31/2008 3:50:56 PM , Rating: 2
- Judge H. Lee Sarokin


RE: Denial doesn't change copyright law
By croc on 11/1/2008 12:48:40 AM , Rating: 2
When are you guys going to understand the difference between criminal law and civil torts? Here, I'll make it easy for you. OJ Simpson was found innocent of several criminal violations, and walked out of the courtroom free as a bird. No matter your views on the matter, that is what happened. However he was later sued in civil court, lost, and an award was given to the plaintiffs.

Not picking on you, savagepotato...


By SavagePotato on 11/3/2008 11:47:18 AM , Rating: 2
And what is your point? That evidence should not be necessary because it is a civil suit?

That sounds like a great idea doesn't it.

How about no, it's just as reckless and stupid to be able to try people for large sums of money without evidence.


RE: Denial doesn't change copyright law
By omnicronx on 10/31/2008 11:33:24 AM , Rating: 2
quote:
iTunes, Amazon, Napster, Zune Marketplace.
All of which are predated by? The original Napster, Imesh, Limewire, etc etc etc.. all of which were released before the first big legal music downloading service Itunes, which was released in 2001, but was not really mainstream until 2003. Once you get the wheel going, it can be very hard to stop. They waited around instead of being progressive, collecting on royalties from those who dared enter the legal digital download market. The only thing better than 70% royalties is 100% ;) not to mention they could have charged more than a dollar per track. They also could have just plain denied licensing agreements with any other startup which would have made them biggest player in the market.


RE: Denial doesn't change copyright law
By Staples on 10/31/2008 2:52:49 PM , Rating: 2
Although I do not agree with your argument, I have heard it before. This is exactly what they say about the prohibition however in that case, it was probably true because tons of people were addicted to alcohol. I am not so sure it applies to this case in the same way.

I guess you could say that iTunes is not well advertised enough and people do not know the alternative to crime.


RE: Denial doesn't change copyright law
By johnbuk on 10/31/2008 3:53:54 PM , Rating: 3
More flawed logic...but what the hell...prohibition was overturned because it was unpopular and a law that was frequently violated and cost a lot to prosecute. Therefore comparing the two, the copyright laws are unpopular, frequently violated, cost a lot to prosecute, and should be overturned.

There was a burdon of proof required to convict people of bootlegging liquor too. Since alcohol was outlawed, the proof required was often just having alcohol. Perhaps that's the next step though- simply having music in a digital format will be enough to convict people of "making it available" and result in massive court cases. After all, we've already been told that ripping a CD is illegal by the RIAA and is resulting in artists not getting money via itunes and the like.


By YoshoMasaki on 10/31/2008 10:22:40 PM , Rating: 2
Not quite ... see <a href="http://www.usconstitution.net/const.html#Am18">here</a>. The 18th Amendment only prohibited "the manufacture, sale, or transportation of intoxicating liquors", NOT a) consumption or b) possession (in one's home). If one was able to store up alcohol before 1/16/1919, it would be perfectly legal to consume or possess it afterward.

In any case, a burden of proof would be required to convict someone based on actions such as "manufacture, sale or transportation".


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