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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.


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