backtop


Print 109 comment(s) - last by Stas.. on Oct 11 at 2:06 AM


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.


Comments     Threshold


This article is over a month old, voting and posting comments is disabled

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.


"Mac OS X is like living in a farmhouse in the country with no locks, and Windows is living in a house with bars on the windows in the bad part of town." -- Charlie Miller

Related Articles
The RIAA v. The People: Four Years Later
August 30, 2007, 3:37 PM













botimage
Copyright 2014 DailyTech LLC. - RSS Feed | Advertise | About Us | Ethics | FAQ | Terms, Conditions & Privacy Information | Kristopher Kubicki