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RIAA lawyers may have mislead Minnesota judge, corrupting the jury's decision

Jammie Thomas, the Minnesota resident ordered to pay $222,000 to the RIAA last October, may get a second shot at trial due to a controversial – and possibly misleading – jury instruction.

In October, when Capitol Records v. Jammie Thomas wrapped up, members of the jury were told that the act of making music available for download was all that was needed to prove that Thomas infringed record labels’ copyrights – attorneys for the RIAA compared this to someone displaying pirate DVDs for sale at a table. The instruction likely cost Thomas her victory and a short while later the jury awarded plaintiffs $222,000 in damages for Thomas’ act of “making available” 24 songs for download.

Now, however, U.S. District Court Judge Michael J. Davis now thinks that the “making available” instruction was a mistake. He says that he found a 1993 ruling from the 8th Circuit Court of Appeals that requires “actual dissemination of either copies or phonorecords.” An Arizona ruling entered on similar arguments was revoked late last April, he added, and earlier this month a Florida federal court reached the same conclusion.

Neither side in Capitol v. Thomas presented the 1993 decision to him, said Davis. Oral arguments on whether or not a new trial will be held on July 1 in Duluth, Minnesota.

With precedent quickly shifting away from the content industry’s favor, the RIAA doesn’t seem fazed: “If we have to retry the case, we’ll do so without hesitation,” said RIAA attorney Richard Gabriel. Record companies can still prove that Thomas violated copyright, because files found on her computer have the same signatures as known pirated recordings – files that Thomas claims were copied from CDs. Beyond that, says Gabriel, evidence that investigators working for the RIAA were able to download music from her computer is more than sufficient to win a second trial.

“We've been saying all along that it was submitted to the jury on an improper theory,” said attorney and Recording Industry vs. The People co-author Ray Beckerman. “Now the judge recognizes his error and he realizes he was misled by record industry lawyers.”

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By wallijonn on 5/16/2008 11:09:58 AM , Rating: 1
evidence that investigators working for the RIAA were able to download music from her computer

Exactly how were they downloaded, by invisibly hacking and breaking in, then doing a plain copy from one machine to another? Did they send her an email which planted a trojan or bot? Did they break in without the user knowing that her machine was being spied upon? Did they install a root-kit? Did they take advantage of some spyware, virus or bot already on the machine (like an unsecured port)?

If they did, then the RIAA just lost the case. That would be akin to them breaking down your door and seeing that you had CDs in your home, along with flash memory cards and an iPod. Screaming "If you have an iPod then you are a pirate" doesn't prove anything.

RE: Hacked?
By masher2 on 5/16/2008 11:56:40 AM , Rating: 3
> "Exactly how were they downloaded, by invisibly hacking and breaking in..."

No. She made the songs freely available over the Kazaa network.

RE: Hacked?
By MScrip on 5/16/2008 1:10:29 PM , Rating: 2
> "No. She made the songs freely available over the Kazaa network."

And so did millions of other people that day. In fact, it's happening right now, everywhere. Millions of people are sharing songs at this moment. I wish they could fine everyone a little, instead of one woman $250,000.

RE: Hacked?
By just4U on 5/16/2008 1:35:37 PM , Rating: 2
That's a very good point you bring up there..

RE: Hacked?
By PitViper007 on 5/16/2008 1:42:02 PM , Rating: 1
And because millions of other people do the same thing as she did every day makes it right? I'm sorry, I don't think so. I'm against the Mafia-like tactics the RIAA uses just as much as anyone, but the evidence I saw in her case was overwhelming.

Also, for the record, $222,000 for 24 songs is WAY too much. I feel they have the punitive damages set so high that people don't believe that it could really be applied to them. Bring the fines down into the $50-$100 per instance/song and you have a more reasonable deterrent.

RE: Hacked?
By just4U on 5/16/2008 2:17:02 PM , Rating: 2
That's the point he was making tho. Millions of others (in theory) were doing it that day and probably every day since.. the amount she was fined seems excessive just on that fact alone.

Plus the tactics used to find out what she was doing were really no better then her having the songs being shared. In my opinion the two cancel each other out. It's such a huge gray area that needs to be redifined.

RE: Hacked?
By AntiM on 5/16/2008 1:22:13 PM , Rating: 2
The Kazaa shared folder is there for everyone to see and to copy files from, and as far as I know, you can copy files to it as well. It has to make you wonder about the intelligence of these people that are getting caught. Wouldn't a simple firewall prevent this kind of snooping? These people must not have even the most basic of security measures in place.

RE: Hacked?
By Shawn5961 on 5/16/2008 4:09:15 PM , Rating: 2
It's the way these cases always work. You never see someone who has tens of thousands of pirated songs getting sued, because that gives people the mindset of, "Hey, I need to pirate thousands of songs to get in trouble, so downloading the new Britney Spears album is perfectly fine."

It's always the grandparent, the once a month computer user, or the mom that just wanted a song so her daughter could practice for her talent show, that get sued. It's so people see, "Wow, they downloaded three songs and got sued over a hundred thousand dollars, I better not do it."

RE: Hacked?
By mindless1 on 5/16/2008 9:38:19 PM , Rating: 2
No, those are just the ones who did it few enough times to feel they should get away with it, or the exceptional cases that were newsworthy.

I'm not saying they should be fined such an excessive amount, on the contrary if a song is $1 a download it should have a similar penalty. Some might say this doesn't deter but deterrance is not an acceptible avenue through civil proceedings.

RE: Hacked?
By plinkplonk on 5/18/2008 5:23:15 AM , Rating: 2
surely the amount they should pay is the amount the song is worth...(i.e. price of album it is on / number of tracks) rather than "right we reckon this song is worth $30,000 to us so we're gonna make them pay $30,000 for every track they've got"

... no?

RE: Hacked?
By joex444 on 5/16/2008 2:50:20 PM , Rating: 2
AS I recall, Kazaa came bundled with a butt load of spyware.

We would need a full source code dissemination of MediaSentry's bot to find out if it made advantage of any of these insecurities introduced by malicious software bundled with Kazaa (insecurities they would have known about as most users would not have known about the malware).

I do find a problem in using copyright infringement to prove a case. What I mean is that to prove that Thomas infringed copyrights, the RIAA needs to infringe their own copyrights by downloading from Thomas.

And since they claim Thomas had songs with "known pirate signatures" on them, that doesn't prove she infringed. It proves (with md5 hashes anyways) that she lied about ripping her own CDs. The RIAA is not interested in leechers, so downloading the songs isn't really illegal. It is illegal for the uploader. So, that proves she lied, not that she was a pirate of some 1700 songs (or the 24 they're claiming). Moreover, I believe it is legal to download MP3 versions of songs from a CD you legally purchased (or a tape, or an old vinyl record). Especially with vinyl, it is hard to convert to CD, so downloading becomes easy. It is uploading those downloaded songs to another user which is illegal.

Therefore, since the RIAA legally owned the songs she uploaded, it was not an illegal transaction. Meaning, the RIAA was entitled to download the songs, so Thomas did not illegally upload them. She in fact legally uploaded them.

To prove piracy requires proof that she uploaded them to someone who does not own a license to the music (licenses being physical CDs, tapes, or vinyl). This not only requires proof that someone else downloaded it, but knowledge of who that person is and a complete list of their purchased music.

RE: Hacked?
By plinkplonk on 5/18/2008 5:29:42 AM , Rating: 2
dude seriously just go ahead and email this to the RIAA and explain to them what's up because you clearly know more than they do about their conduct (no sarcasm!)

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