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RIAA's $222k Verdict Is Likely To Be Set Aside
Posted by
ScuttleMonkey
on Mon Aug 04, 2008 04:53 PM
from the one-step-forward-two-steps-back dept.
from the one-step-forward-two-steps-back dept.
NewYorkCountryLawyer writes "Apparently the RIAA's 'big gun' didn't fare so well this morning in Duluth, when he tried to persuade the judge in Capitol v. Thomas that the part of the Copyright Act which says 'by sale or other transfer of ownership, or by rental, lease, or lending', can be disregarded. According to an in-person account by Wired.com the Judge indicated that he is likely to grant a mistrial, setting aside the $222,000 jury verdict based upon his incorrect jury instruction, and that he will probably hand down his decision in September. Just yesterday some of the same lawyers got rebuffed by the US Court of Appeals for the Second Circuit in their attempt to argue that Cablevision's online storage for its customers constitutes a copyright infringement, in Cartoon Network v. CSC Holdings. There, too, the content owners had argued that the wording of the Copyright Act did not mean what it said. There, too, the Court politely but firmly disagreed."
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News: RIAA Gets Nervous, Brings In Big Gun 423 comments
NewYorkCountryLawyer writes "I guess the RIAA is getting nervous about the ability of its 'national law firm' (in charge of bringing 'ex parte' motions, securing default judgments, and beating up grandmothers and children) to handle the oral argument scheduled to be heard on Monday, August 4th in Duluth, in Capitol v. Thomas. So, at the eleventh hour, it has brought in one of its 'Big Guns' from Washington, D.C., a lawyer who argues United States Supreme Court cases like MGM v. Grokster to handle the argument. This is the case where a $222,000 verdict was awarded for downloading 24 songs, but the judge ultimately realized that he had been misled by the RIAA in issuing his jury instructions, and indicated he's probably going to order a new trial. But, not to worry. A group of 10 copyright law professors from 10 different law schools and several other amici curiae (friends of the court) have filed briefs now, so it is highly unlikely the judge will allow himself to be misled again, no matter who the RIAA brings in as cannon fodder on Monday."
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Infringing your own copyright (Score:5, Insightful)
I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?
Not defending the RIAA, but just pointing out something that seems illogical to me.
Re:Infringing your own copyright (Score:5, Insightful)
As I understand it, it is because the undercover cops are legally sanctioned to conduct investigations (provided the follow all the proper laws/regulations). However, that doesn't mean I can buy drugs and then give said drugs to the court as evidence that whomever I bought them from is a dealer. There is most certainly a probability of some sort of conflict of interest. Perhaps I am a drug dealer, and simply don't like my neighbor.
In any case, the RIAA is not using (or so it seems on /.) legitimate means to go undercover (ie unlicensed investigators). They are in some effect being a vigilante (or trying to anyway).
Parent
Re:Infringing your own copyright (Score:4, Interesting)
The reason this may stand up is that in the drug case it is SELLING the drugs that is illegal. In copyright law it is making the copies that is illegal. So -
in the drug bust the cops observe the dealer selling drugs; i.e. the illegal act.
in the copyright case making available is not the illegal act. The party making the copies (i.e. downloading) is the only one committing the illegal act.
Parent
Re: (Score:3, Insightful)
So, genius, explain to me how you upload something without making a copy. I mean, are you seriously telling me that you were able to post a copy without first copying the post into the HTTP request, followed by Slashdot copying the post into its database?
My understanding is that downloading has been ruled legal in a few countries (notably NOT the US) because the first copy was made on the uploading side.
So sending a file would be illegal, as the first copy of the file created exists on the uploader's side.
U
Re:Infringing your own copyright (Score:5, Insightful)
I don't know why you got modded down as a troll. You ask a very important question which, fortunately in this case, has a very simple answer:
Jammie Thomas isn't accused of uploading, she is accused of "making available". If you have a file that you have the legal rights to, and you happen to put it on your hard drive in a place where your file sharing software (which you only use for legal purposes) can find it (presumably by accident), then you're "making available" even if no upload happened.
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Re:Infringing your own copyright (Score:5, Insightful)
Seriously, everyone knows that both the uploading AND the downloading are blatantly illegal.
These are not criminal matters, they are civil. Copyright infringement is not illegal. It may cause damages to the party infringed upon, but that party must pursue the matter in civil court. Seriously, walk into a police station holding a burned CD full of MP3s and demand to be arrested. They will laugh at you, because it is not a crime.
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Copying != copyright infringement (Score:5, Insightful)
So, genius, explain to me how you upload something without making a copy.
Typically it is legal to make a copy of material under fair use [wikipedia.org] guidelines. Whether the copy is on a CD or on a server or some other medium is generally irrelevant. What is relevant is whether mens rea [wikipedia.org] can be proven and whether the use clearly falls outside fair use guidelines. Upload stuff to a website saying "Warez here - come and get it" and you likely are committing a copyright violation. But simply putting files on a server is not an automatic copyright infringement. The issue is a lot more complicated than that.
Both sides copy, and as you say, the act of copying without permission is illegal.
This statement could not be more wrong. Copying material is not an automatic copyright infringement and both case law [wikipedia.org] as well as legislation [wikipedia.org] have strongly established this fact. All copyright infringements require the act of copying but not all copying is an automatic copyright infringement.
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Fair use does not require permission (Score:4, Insightful)
The GP did specifically write "without permission". Under any reasonable readings of that expression,...
Don't confuse reasonable readings with legal interpretations. Fair use copying does not, under any circumstances I am aware of, require permission from the copyright holder. The GP post you refer to is at best ambiguous on this point and I see no reason why anyone should assume your broad interpretation of "without permission" since permission is not necessarily required.
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Re: (Score:3, Interesting)
The party making the copies (i.e. downloading) is the only one committing the illegal act.
This raises an interesting legal question. The copy operation gets initiated from another computer, is the person who initiated the operation (the downloader) responsible? Or is it the person who made it available? If it weren't copyright would illegal acts be viewed the same way?
What I'm trying to get at is if someones PC got infected with a virus, under the view that the host is responsible, one could hold people who own infected PC's responsible for the behavior of the virus right?
Re:Infringing your own copyright (Score:5, Insightful)
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Re:Infringing your own copyright (Score:5, Interesting)
Most libraries have a copy machine in them. So, Person 'A' walks into a library, takes a book off the shelf, walks over tot he library's copy machine, and copies the book.
Who's responsible? Person 'A' who did the copying? Or the library for 'making available' the copier??
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Re:Infringing your own copyright (Score:5, Insightful)
Basically, it's the same as a library making CDs available for borrowing and providing a CD copier. As I understand it, if you as the borrower are making the copies, even if the library provides the equipment, you are violating copyright, not the library. Not sure if that theory has been tested in court, though. But yeah, one could reasonably interpret copyright law to indicate that the downloaders are violating copyright, not the people making it available. This differs from hosted storage in which the person who uploaded it to the server initially was making an unauthorized copy, i.e. both parties committed a copyright violation.
Of course, when they were going after downloaders, everyone screamed and said that they should go after the people making it available in the first place. I don't think there's any way for these folks to win... except... oh... maybe not suing their fans.
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Re:Infringing your own copyright (Score:4, Insightful)
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Re:Infringing your own copyright (Score:4, Insightful)
Fair use gives you the right to make backup copies, downloading the song from the internet is the same as making a backup copy.
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Re: (Score:3, Informative)
The copy operation gets initiated from another computer, is the person who initiated the operation (the downloader) responsible? Or is it the person who made it available?
According to the law, it's the downloader who is responsible. In a post on yesterday's article someone offered a good example, sorry I don't recall the person. The example used a newspaper. If I buy a newspaper, read it in a park then leave it on a park bench I'm not breaking the law. Well, depending one where I might be breaking a lit
Re:Infringing your own copyright (Score:4, Informative)
The act of downloading, without copyright holder's approval is illegal.
Incorrect statement of law.
The judge in this case is deciding whether the RIAA has to prove anybody downloaded any music.
Incorrect statement of law.
From the "Wired" article: "At issue is whether the RIAA needs to prove that copyrighted music offered by a defendant on a peer-to-peer network was actually downloaded by anyone."
Incorrect statement of law.
If the RIAA can't prove anyone downloaded music
Incorrect statement of the issue
he may vacate the defendant's conviction.
There is no "conviction", and his decision to set aside the jury verdict has nothing to do with what the RIAA can "prove" it has to do with whether the jury instruction was wrong.
Further it says the "judge said that the Copyright Act appears to outlaw only an actual transfer of copyrighted material."
Incorrect statement of law.
For an accurate statement of the law applicable to yesterday's argument, please go to Section 3 here [cornell.edu].
Parent
Re:Infringing your own copyright (Score:4, Interesting)
This is not true, which is kind of the point of the judgment being referred to.
It is distributing copies that is illegal. You can make as many copies as you want, but if you rent them out, sell them, etc, then you are in trouble.
You're pretty close there... but making the copy is not the problem. The problem is downloading it. If I were to log into your computer remotely, and copy all your copyrighted media files to the same computer, that is not a violation. Transmitting the files? That's a copyright violation.
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Re:Infringing your own copyright (Score:5, Insightful)
Undercover cops buy drugs in the course of performing their duties as a law enforcement officer and the state doesn't have to prosecute them for buying them.
Fixed that for ya.
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Re:Infringing your own copyright (Score:5, Informative)
You missed the point. The problem for the RIAA is that when they downloaded the files, they were authorized to download the files (as representatives of the copyright holders) and thus, because this was an authorized download it does not provide evidence of a copyright violation. It's really a catch-22 situation for the copyright holders.
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Re:Infringing your own copyright (Score:5, Insightful)
I don't think your example is applicable. To make it closer to the real event: imagine that I offer to make copies of Josh Grobin's CD and the only person who asks for a copy is Josh Grobin. I stress "asks", because that is what happens with P2P. There is no evidence that anyone else received a copy, so a court has to assume that no-one else did receive a copy. Now, do you think that the copy that Josh asked for was unauthorized?
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Re:Infringing your own copyright (Score:4, Insightful)
Would a court ask this? I don't recall seeing intent in any copyright statues that I have read (not that I claim to be an expert on the subject of copyright). Essentially, what you are suggesting is that the court should say: "in the hypothetical case that the person requesting the file did not have permission, the defendant would have violated copyright". The problem is that courts don't make awards (or, should not) on the basis of hypothetical violations.
To use a car analogy, it's like being given a speeding ticket by a cop who states "had the defendant not seen me, he would have been speeding down this stretch of road, so we can presume that he is guilty".
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Re: (Score:3, Insightful)
Unless they authorized the uploader to distribute the files, then it isn't a legal upload, no matter who is downloading it.
That's the line the MafiAA uses, however it is not illegal to make available, which is what the uploader is doing. You have the right to swing at me but your right ends where my nose begins.
Falcon
Re:Infringing your own copyright (Score:5, Informative)
The part that bugs me is where Toder (defense lawyer) says that the plaintiff can't introduce evidence of the investigators downloading files from the defendant. According to TFA:
I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?...
The reason undercover cops arent charged is because they are officers of the law, and are thus believed to be pursuing the upholding of the law. See entrapement [wisegeek.com] as it relates to undercover cops "selling" illegal drugs. Since the RIAA "Investigators", many of whom are not even licensed, they are not officers of the law, and thus should not face the same privilege. For similar reasons, setting up your own drug sting operation to help cleanup your neighborhood by trying to sell oregano will probably get you thrown in jail instead of any "customers" you might catch. The defense is arguing that if the investigators are not liable for downloading the content illegally, then the content must be authorized by the RIAA. In this case, its like they sent their own "Johns" out on the street to find prostitutes, and then rather than turning over their own Johns after the deed is done, only turn over the prostitutes, all while not being official law enforcement agents. They are overstepping their rights and should not be afforded the privilege they have assumed.
Tm
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Re: (Score:3, Insightful)
Re:Infringing your own copyright (Score:5, Informative)
I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?
Sharing music is not inherently illegal. Copyright violation only exists when a copy is made without authorization of the copyright owner or some special circumstances (fair use, media shifting, etc.). If a copyright owner or their agent transfers a song, no violation has occurred. Contrast with a drug deal which is always against the law.
Parent
Re: (Score:3, Insightful)
Copyright violation only exists when a copy is made without authorization of the copyright owner or some special circumstances
The copying isn't illegal, it's giving the copy away or getting the copy without also getting the original that's illegal.
Falcon
Re: (Score:3, Insightful)
Those downloads, Toder said, cannot be considered unauthorized downloads because the RIAA authorized them.
I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?
As the subject line says, you can't infringe on your own rights. The investigators worked for the copyright owne
Re:Infringing your own copyright (Score:5, Informative)
Because the criminal requirements are that if someone believes they are committing a crime, then they are. If there is a buy for drugs and it's flour, it's still a crime. If someone shoots into a trunk they previously locked someone in with the intent of killing them, it could be tried as attempted murder even if the person was moved from the trunk and was in no actual harm. However, civil cases are different. Most require that you get actual damage. If someone tries to break a contract and believes they did break a contract, they still aren't guilty of breaking it unless there is some harm to the other side. You can't sue someone if they didn't harm you.
If he "makes available" something, but no copies were made, then there was no loss. If he makes something available and the only person that makes the "illegal" copy is the copyright owner or their agent, then there was no loss. Without a loss, there can be no civil case.
Not defending the RIAA, but just pointing out something that seems illogical to me.
You have pointed out another reason why they are pressing hard for making all infringements, including incidental non-commercial infringement into crimes, rather than simply "illegal" (but requiring civil actions). There is a different set of rules for civil suits (not to mention the cost of prosecution) and they favor the RIAA if these are all criminalized.
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You can't manufacture a crime (Score:4, Insightful)
Undercover cops buy drugs and the state doesn't have to prosecute them for buying them.
Police officers are sanctioned by the government to enforce the law. The RIAA and other private organizations do not (and should not) share the same legal protections as a police officer sanctioned with enforcing the laws. The act of trafficking [wikipedia.org] schedule 1 controlled substances [wikipedia.org] is always illegal for private citizens. Making a copy of copyrighted material often is entirely legal under fair use doctrine [wikipedia.org]. Furthermore selling controlled substances without a license is a felony whereas selling copyrighted material without any special license is frequently legal.
If the plaintiff had assistance from legally sanctioned law enforcement authorities who, in the process of a properly conducted investigation, concluded that there was reasonable grounds to suspect attempted copyright infringement then it would seem more likely to be acceptable as evidence. But just because some private investigator found "evidence" doesn't mean a court will or should automatically allow it to be presented.
Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?
Because a private citizen cannot manufacture a crime against another private citizen. Without getting into the particulars of any given case is is easy to think of situations where the defendant was not attempting to commit copyright infringement. Making copies of copyrighted material is not prima facia [wikipedia.org] evidence of copyright infringement.
Parent
Don't celebrate yet. (Score:5, Insightful)
Even if the 'making available' argument doesn't stand under current law, you can expect attempted copyright infringement to be made illegal when congress gets back from vacation.
Re: (Score:3, Interesting)
I agree. As long as our representatives in Congress and the Senate are in the pockets of media companies, all of these types of court battles will mean nothing in the future. So ones only option is to vote, voice your concerns to your elected officials, and then become incredibly cynical after realizing that they don't really care- since most of their constituents don't care either.
Apathy in the USA. I really don't know what its going to take to wake up our country to reality. Being outnumbered 200% by
Re: (Score:3, Insightful)
Even if the 'making available' argument doesn't stand under current law, you can expect attempted copyright infringement to be made illegal when congress gets back from vacation.
Yep. Some of the new legislation they're trying to push through makes the DMCA look like the "Free Kittens and Ice Cream For Everyone Act". As long as our Congress is up for sale and people aren't paying attention to copyright legislation, we're going to keep getting screwed time after time. I hardly ever see anything about copyright legislation in the mainstream media, except when they're talking about how the mean nasty pirates are going to have the poor recording and movie industry execs sending their
Brilliant (Score:5, Insightful)
RIAA sol (Score:3, Interesting)
As for the Congress getting more blatantly in bed with **AA, keep it up and I suspect people will stop writing them checks too, ass well as ignoring them generally. That's kind of the way these things seem to work in other countries.
By my reckoning, RIAA has had 20+ yrs to get a consumer usable act *started*, much less its act together, and failed. The model of selling the same tunes 12x to the same person in a digital age, threatening to break people "legally", and indiscriminately sucking off education resources, just doesn't cut it. Time to shape up or ship out, guys.
Don't bother cheering. We're all screwed. (Score:5, Insightful)
None of this means a damned thing if the RIAA succeeds in getting their private gestapo made into an arm of the Department of Justice. Remember, they are pushing a bill to create a Federal framework for billing the US Government for both civil and criminal actions using Federal officers to do their dirty work. Even if you don't download music, you're gonna pay through the nose in tax dollars and the loss of more civil rights as the government bureaucrats try to ram through new laws to "support their mission" - mandatory ISP snooping and filtering, legitimized abuse of due process, lower standards of evidence, and a grab bag of laws to "protect jobs" (that's the rationale being currently used to get this bill passed). We're setting ourselves up for an Orwellian nightmare of epic proportions if this nightmare passes.
Re: (Score:3, Insightful)
Look on the bright side. Western society is in terminal decline anyway. When archaeologists of the next great civilisation look back at us, the RIAA's efforts to turn corporate policy into federal law are going to be seen as something of a barometer... if they are even remembered at all.
Re:Mistrial? WTF (Score:5, Interesting)
Not when the judge in question gave an incorrect interpretation regarding a point of law to the jury that almost certainly affected the verdict. I think it's a sign of a pretty good judge when he has the balls to say he made a mistake big enough to warrant a do-over.
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Re:Mistrial? WTF (Score:4, Informative)
As was John Jay, the first Chief Justice of the U.S. The really sad thing is that all jurors should already be aware of their absolute rights as arbiters of facts *and* the law, but peoples' knowledge of how their own government works is a joke nowadays.
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Re:Mistrial? WTF (Score:5, Insightful)
did you read the part where it said the verdict would be set aside because of bad jury instructions ... if the jury gave the wrong answer because they were asked the wrong question it should be set aside.
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Mistrial is not a set-aside... (Score:4, Insightful)
He's not saying that the Jury's verdict is wrong, he's saying that the decision was made on incorrect information. The fact that they based their decision on were wrong. If a Jury found a man guilty of murder but it turned out that the prosecution had hidden facts that would have exonerated the defendant, would you consider that "unamerican"?
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Re:Mistrial? WTF (Score:5, Insightful)
They were essentially mis-instructed in the charges.
Setting that aside is something that courts should be loathe to do, and should only be done at the appellate level by seasoned, reasoned jurists.
Lawyers are officers of the court. They must act within the bounds of the court process. To give purposefully misleading information to the judge is outside what they are supposed to do. The judge is not and can not be an expert in everything. The lawyers in the case are supposed to bring up everything relevant, and the judge decides points of law and the juries points of fact. But, the judge decided a point of law incorrectly, essentially because the lawyers on one side lied to the judge. That is a violation of the process and should require a mistrial. The jury made a decision based on incorrect instructions. Thus the decision they made may have been correct based on their information, but may not have been correct if they were properly instructed. The judge gave them one last chance to convince him that the information provided to the judge was correct, and he indicated that he does not believe the instructions he gave the jury were correct, and thus he should declare a mistrial.
As for whether that's right or wrong or whatever, that's what's happening here, and well within the rules of order. It was started because the lawyers on one side misinformed the judge. And that's simply not allowed.
Parent
Re: (Score:3, Interesting)
Lawyers are officers of the court. They must act within the bounds ...
Bravo, you win the Internet. That is a well-reasoned and informed presentation of the situation.
Re: (Score:3, Funny)
If MediaSentry hacked her to frame her, I wouldn't be the least bit surprised.
R3 got DoS'ed by them, after all.
Re: (Score:3, Insightful)
Don't be silly, it was quite obvious she was guilty as charged, the only grossly unfair thing was the punishment.
She was charged of having committed copyright infringement in two different ways. The first charge was incorrect and only happened because the RIAA's lawyers lied to the court, and the evidence for the second charge is most likely incorrect as well.
Re:lucky for her, really (Score:5, Informative)
since she was found to have used the same username for her file sharing app as she did for email and other websites, I think anyone who thinks she wasn't guilty of filesharing is being silly
I guess you're not familiar with the facts. There was ZERO evidence that she had used the "file sharing app". There was evidence that(a) her computer had been malfunctioning, and (b) someone had used a "file sharing app", and (c) that someone had used defendant's frequent user name. The techie from Best Buy testified that the computer was irretrievably corrupted and infected. I.e., all of the facts were completely consistent with a 'zombie' situation.
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Re:lucky for her, really (Score:4, Interesting)
That's perhaps the fourth time I've seen that in this thread. RIAA trolls sure do have a lot of free time.
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Re:lucky for her, really (Score:4, Interesting)
I'm not siding with the RIAA..
That's perhaps the fourth time I've seen that in this thread. RIAA trolls sure do have a lot of free time.
Dear easyTree, I hope you get modded up for your astute RIAA troll-detection skills. I've noticed that this shill who writes these things always loves to start off with something like that. "Nobody hates the RIAA more than me, but......" "I'm no fan of the RIAA, but..." "Sure I don't like their heavy handed methods, but...." I've seen a million of them. It's the surest tip-off. The saving grace of these guys is their bottomless stupidity.
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Re:lucky for her, really (Score:4, Funny)
I'm no fan of the RIAA, but I like my toast to come out of the toaster before it's burnt.
Sure I don't like their heavy handed methods, but my next door neighbor has a gigantic dog that actually outmasses me.
I just want to mess with your statistics on this one :)
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Re: (Score:3, Insightful)
Re:This is Soooo Funny (Score:4, Interesting)
Watch as yet another RIAA lawyer makes a complete ass of himself... and in the Midwestern normal town capital of the world no less... why do i feel like Garrison Kieler should be commenting on this.
In Hollywood, where the artists are strong, the music is paid for, and all the lawyers are below average.
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