Print 44 comment(s) - last by bplewis24.. on Oct 9 at 3:26 PM

Jammie Thomas stands accused of sharing 1,705 songs in April 2005.  (Source:
Deemed to have nothing to say of relevance, Cary Sherman will have to wait for another day in court for a soap box

Judge Michael J. Davis barred Recording Industry Association of America President Cary Sherman from testifying in Capitol Records v. Jammie Thomas, the first RIAA lawsuit to go to jury trial. With Sherman struck from the witness list, testimony wrapped up Wednesday and a decision is expected today.
“I don’t want to turn this case into a soap box for the recording industry,” said Thomas’ counsel Brian Toder. RIAA lawyers argued that Sherman could provide valuable testimony to the jury over the case’s significance and the harm the RIAA has suffered due to piracy.
Even after Judge Davis rendered his motion to bar Sherman’s testimony, RIAA counsel Richard Gabriel continued to press on. Emphasizing the importance of Sherman’s testimony, Gabriel argued that Sherman is needed to help the jury see the “massive problem of file sharing,” and that the RIAA is not out to make money but “to prove a point.”
Judge Davis remained stalwart, refusing to reconsider.
Capitol Records v. Jammie Thomas is significant because it is the first case among the RIAA’s litany of more than 18,000 lawsuits to make it to jury trial. With most of the suits, the RIAA tends to push for a settlement to avoid costly litigation; defendants, facing overwhelming legal fees and the costs of going to court, usually settle for amounts that range from around $3,000 to $11,000.
Previous testimony in Capitol Records v. Jammie Thomas included witnesses from Sony BMG, Warner Bros., and EMI Records of North America. In one such testimony, 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.’”

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Not looking good
By Murst on 10/4/2007 5:21:31 PM , Rating: 2
The defense is not looking too hot in this trial. Earlier today the judge made a modification to jury instructions that the "act of making available for electronic distribution... violates the copyright owner's exclusive copyright." Previously, the instruction was that copyright infringment could only happen if an actual transfer took place.

I just don't see how the defense can win this w/o some sort of jury nullification. The RIAA doesn't even have to meet the reasonable doubt standard since this is a civil trial.

RE: Not looking good
By Phynaz on 10/4/2007 5:40:23 PM , Rating: 2
She lost the case.

Liable for $220,000 of damages.

RE: Not looking good
By codeThug on 10/4/2007 5:49:35 PM , Rating: 2

How in the hell can the RIAA prove they LOST $220,000? In which fucking parallel Universe did this happen?

RE: Not looking good
By Murst on 10/4/2007 5:58:22 PM , Rating: 3
Why would the RIAA have to prove they lost anything? How did Stella prove she lost millions of dollars when she spilled coffee on herself at McDonalds? This is a civil trial. The jury can award pretty much whatever they want to.

RE: Not looking good
By Phynaz on 10/4/2007 5:59:47 PM , Rating: 2
It's a civil case, you don't have to prove anything.

There is no "beyond a reasonable doubt" in civil court.

RE: Not looking good
By bplewis24 on 10/4/2007 7:10:18 PM , Rating: 2
While you are correct that the burden of proof in civil cases is not "beyond a reasonable doubt" as it is in criminal cases, it's not the same as "not having to prove anything."

Technically, the burden of proof in civil cases is "beyond a preponderance of doubt." In all practicality, all you have to prove is that a person is "more than likely" guilty, which some people describe as the 51% rule. If you believe there is a 51% chance or more that he/she is guilty, than the burden of proof is met.

Having said that, don't confuse burden of proof in guilt vs innocence to proving damages. The burden in proving that the defendant was guilty in this case is still a relatively separate matter from proving just how much she should be paying in the way of damages. And that tends to get a bit more complicated.


RE: Not looking good
By Phynaz on 10/4/2007 7:38:58 PM , Rating: 2
Actually it's preoponderence of evidence.

There's no such thing as "beyond a preponderance of doubt".

RE: Not looking good
By bplewis24 on 10/9/2007 3:26:27 PM , Rating: 2
Of course, you are right. Thanks for the correction...not sure what I was thinking.


RE: Not looking good
By Polynikes on 10/4/07, Rating: 0
RE: Not looking good
By dluther on 10/4/2007 11:53:18 PM , Rating: 2
It's not a matter of proving they lost this amount, it's a matter of proving willful violation, and applying a penalty per occurrence.

That's how civil copyright and patent infringement works.

RE: Not looking good
By Christopher1 on 10/4/2007 7:00:52 PM , Rating: 2
You are kidding? At least I hope that you are.... if she lost this case, I would immediately file for a stay and appeal the decision to the higher courts.

RE: Not looking good
By walk2k on 10/4/2007 7:37:09 PM , Rating: 2
geez that's $129 per song.

you can probably buy most of those songs for .99 cents on iTunes.

what justification could they possibly have for the insane 1300% price increase??

RE: Not looking good
By Phynaz on 10/4/2007 7:42:04 PM , Rating: 3
Actually it's $9,250 per song.

Evidence was presented for only 24 songs.

The price increase is due to punative damages.

RE: Not looking good
By Ard on 10/4/2007 8:43:16 PM , Rating: 2
It's not punitive per se, though the impact is certainly similar. The jury reached that amount through statutory damages. It could've been far worse though as they labeled her a "willful infringer", meaning the upper ceiling is $150,000 per work infringed.

RE: Not looking good
By walk2k on 10/5/2007 12:50:05 AM , Rating: 2
the hell is that about. $150K????

one song is not worth 150K

you can buy a whole damn album for 10,000 times LESS than that.

you can't be fined for over 100,000 TIMES the value of what you stole.

if you shoplift a $10 DVD you get fined ONE MILLION DOLLARS?


RE: Not looking good
By Christopher1 on 10/5/2007 12:04:28 PM , Rating: 2
Well, here's the reasoning of the MPAA/RIAA (not that I agree with it): If you are filesharing, you are not only downloading the song or movie in question for yourself but are ALSO uploading to other people who then will not buy that song or movie.... THAT'S where they get the 150,000 dollars from..... though it is still excessive and unconstitutional!

RE: Not looking good
By walk2k on 10/5/2007 12:42:47 AM , Rating: 2
Jammie Thomas stands accused of sharing 1,705 songs in April 2005. (Source:
1705 songs.

don't be ridiculous, you can't be sued for 220k for only 24 measly songs

RE: Not looking good
By SirLucius on 10/5/2007 1:03:24 AM , Rating: 2
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.

From the latest DT article on this issue. While she was accused of sharing 1705 tracks, the RIAA only pursued 24 of them.

RE: Not looking good
By borismkv on 10/4/2007 8:07:17 PM , Rating: 3
So I take it we can add Jury Tampering to the RIAA's list of less than reputable litigation strong-arming tactics?

RE: Not looking good
By Phynaz on 10/4/2007 8:15:21 PM , Rating: 2
Did you even bother to read the testimony?

RE: Not looking good
By Parhel on 10/5/2007 8:22:14 PM , Rating: 2
The defense is not looking too hot in this trial.

Neither is the defendant!

Sorry, I couldn't help it.

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