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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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RE: Denial doesn't change copyright law
By Staples on 10/31/2008 11:05:27 AM , Rating: -1

But the reason I get modded down is for speaking out about piracy.

I get a kick out of it every time.

And to the guy above, we have no jurisdiction in China so there is absolutely no way the RIAA can prosecute a single crime commited there. And to another guy saying that the RIAA dug their grave a long time ago because you seem to think there is no such thing as a legal digital download service. I have news for you, iTunes, Amazon, Napster, Zune Marketplace.

And lastly because I know there is someone going to come out of the woodworks and say that if prices were cheap enough, I would buy music. What is cheap enough? 1 penny per song? Just how is anyone supposed to make a living off that making $5 a day on average? This has almost killed off PC gaming and it is slowely doing the same to music. Have fun guys while it lasts.

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
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="">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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