Thomas' Testimony and the RIAA's Near-Fatal Error 283
eldavojohn writes "The long and torrid trial of Jammie Thomas is in its second stage and in full swing. Yesterday, two major events took place: Thomas gave her surprising testimony and the RIAA was threatened for not disclosing new information to the opposing counsel. Thomas claimed she didn't know what KaZaA was before the trial started. She also admitted that the hard drive handed over to investigators was different than the one that was in her computer during the time of infringement. Her testimony from the first trial was that 'the hard drive replacement had taken place in 2004 and that the drive had not been swapped again since.' This is problematic because the new hard drive had a manufacturing date of 2005. The RIAA had its own troubles, almost losing all evidence from a particular witness when they added an additional log file to evidence without the defense being notified of it. The judge mercifully only removed that new evidence from the trial. It was related to whether or not an external hard drive was ever connected to the computer."
Comment removed (Score:4, Insightful)
Re:innocent until proven? (Score:5, Insightful)
She doesn't. But if does provide her hard drive and it provides evidence that conflicts with the RIAA evidence, it is more likely to throw the RIAA evidence into doubt.
It's kind of like an alibi. You don't have to have an alibi. But if they have a photo of someone who looks just like you from the security camera of a robbed bank and someone reports a getaway car with the same model as yours, having a strong alibi will go a long way towards defusing that evidence.
Re:innocent until proven? (Score:1, Insightful)
All that aside, her innocence is highly questionable at this point.
Re:innocent until proven? (Score:5, Insightful)
focus on the actual issue (Score:4, Insightful)
I think the focus here should be for the defence (may actually be, I don't know) that the fees to pay be reduced to an "acceptable" level, meaning not the life-ruining, impossible-to-pay-unless-you-re-gazillionaire fees demanded by the RIAA.
She "stole" 24 songs. Let her pay a fine of a few hundreds bucks and fucking be done with it. Asking for half a million in damages should be laughed at by any sensible court system, and that's the real problem here.
Re:focus on the actual issue (Score:2, Insightful)
Re:Welcome to Slashdot! (Score:3, Insightful)
People fight at the level and in the area they can. We try to fight corporate greed that has nothing to do with music and songs anymore. It's the suppression of our rights as customers. It's the fact that regular people are being targeted by the RIAA, being ruined and bankrupted by a broken justice system with obsolete laws that favors corporations to the detriment of their own customers.
Global economic meltdown cannot be fixed by computer nerds.
Fraudulent elections in Iran cannot be fixed by computer nerds.
Militants in Pakistan cannot be fixed by computer nerds.
North Korea going insane cannot be fixed by computer nerds.
Also, you're no better. Instead of writing a stupid post on a website, you should have tried to do something about the global economic meltdown, the fraudulent elections in Iran, the militants in Pakistan or North Korea going insane.
This will be argued to symantics (Score:3, Insightful)
All that aside I agree she has her work cut out for her. On firs tread it seems both sides may be pushing the law a bit. I do have a couple questions though:
Has the question of which Kazaa client was installed been answered? There were malware versions of the client, so I would assume these would need to be ruled out.
Has the possibility of the Windows XP "at hack" been resolved? I know this is a real stretch, but those understanding this fairly simple exploit could get around her password. If the computer had been exploited in anyway, it's completely reasonable that the username on Kazaa would match the machine username.
It is obvious the RIAA has set out to make an example of Thomas. If she's guilty then it's understandable that they had to choose -someone-. However, Americans have proven our disregard for our credit scores. All this will prove is that they can hold a big slot on your report, and my assumption is most creditors would begin to glance over them like medical debts if the RIAA makes them common.
-rant over-
Replacement hard disk (Score:1, Insightful)
FTA: "Why was Thomas-Rasset's password-protected computer running KaZaA in February 2005, and with the "tereastarr" name, if she had not set up the software? And since no one else had the password, and since her kids were young and had a computer account of their own anyway, who might possibly have used a machine in her bedroom to share thousands of songs without her knowledge?"
Doesn't the replacement HD cut both ways. If the drive was replaced (assuming no recovery) how can we be know her "tereastarr" account on the original drive was password protected, or that her kids had their own account.
Maybe she wised up on her new install.
Re:innocent until proven? (Score:4, Insightful)
In RIAA:s case everyone is guilty until proven innocent in the supreme court.
Re:Welcome to Slashdot! (Score:3, Insightful)
Where we don't care about anything important like the global economic meltdown or Iran's fraudulent elections or militants in Pakistan or North Korea going insane.
Nope, all we care about is being able to unabashedly steal music and then yell at the people selling it when they try to protect their interests.
Way to rage against the machine, assholes! How about you try fighting for something truly meaningful instead?
You may not be able to see how this affects your civil liberties, or your rights to fair use and the right to not be treated like a criminal, however some people may not be ignorant to such things and for this they do not deserve your simplistic nickelodeon subjugation. (pwndhippy). What are you doing to make certain that there are no tainted elections in Iran? What did you do when there were tainted elections in North America? You should be grateful that people are out there trying to safeguard the civil liberties which you are too ignorant to protect, and I suppose they should be thankful when they have you marching in the streets in IRAN holding hands with the people and counting out their ballots. If you are not able or willing to do this yourself then you are just another armchair general sending someone elses children off to align the world to your moral compass. In other words little man, talk is cheap. So either make the changes your bitching about here, or can the John Wayne act.
Re:innocent until proven? (Score:3, Insightful)
What does a hard drive prove, anyway?
Let's assume it is the system drive, let's furthermore assume it's Windows. Now, Windows stores the ID of every single storage medium (USB stick, external drives...) that you ever connected to the system. Should we now assume that if she has EVER plugged in such a device it's kinda-sorta-proof that she disconnected the offending drive before the trial?
Be serious. I could go to pretty much ANY halfway well used Windows PC and find out that at some point in its existance something was plugged into it. Doesn't prove jack. Likewise, the absense of offending files doesn't prove innocense either.
So unless you find exactly what you're looking for on the drive, you're in crystal-ball land. And that has no room in court.
Re:focus on the actual issue (Score:3, Insightful)
The real issue that needs to be addressed in this case is damages. If a song sells for 99 cents on ITunes then that maximum damages should be scaled to it's retail value.
Even is she bootlegged 24 songs, lets just round to $1 for eash math we are look at $24 in damages and lost sales.
Even if 100 people downloaded each song then we are look at $2400 in damages. Tops.
Lets event dole out triple damages as a deterrent we are only at $7200 in damages.
Now if 5000 people downloaded via bitorrent several slices then we can prorate out $1 based on what percentages of the song they farmed out and how many people downloaded.
No matter how you spin it, I cannot see how a judge can ignore the retail value of a song in awarding damages.
$1 on iTunes = $250,000 max per infraction doesn't make ANY sense at all. Even with the RIAA's reasoning then, her damages should technically be IN THE BILLIONS based on number of downloaders (per infraction since hosting it on Kazaa makes every Kazaa users capable of downloading with several million users, you get the point). The fact they know the judge would find BILLION dollar awards against an individual comical, how damages in excess of 10k isn't comical I'll never understand I guess...
Re:focus on the actual issue (Score:3, Insightful)
I'd ride that out to the supreme court if I got the chance. Hey, look at it that way: You're fucked. If you're found guilty, the RIAA will rip the pants off you. If you can incur legal fees in the vicinity of your life savings, at least the dough goes to the court and not the RIAA.
Re:Merciful? (Score:3, Insightful)
On the side of truth, justice, and the American way[1]?
The judge was merciful to the RIAA, and exercised good judgment in tossing the improper evidence, while retaining the good evidence. That was fair.
Or would you prefer that judges should capriciously choose what evidence to allow based on only which "side" they are on?
[1] The American way, excluding economic hegemony, smug condescension, conspicuous levels of consumption, big asses, cowboy hats, chain restaurants, big-assed cars that seat 4.2 times the number of passengers actually in the car, military action to support economic interests, plausible deniability by offshoring torture, pollution, and awful labor conditions, and apple pie. Not that there's anything wrong with apple pie. It just doesn't fit well with this case.
Re:innocent until proven? (Score:3, Insightful)
Re:Welcome to Slashdot! (Score:5, Insightful)
Where we don't care about anything important like the global economic meltdown or Iran's fraudulent elections or militants in Pakistan or North Korea going insane.
Read the masthead - we're nerds, not dorks, dork.
Nope, all we care about is being able to unabashedly steal music and then yell at the people selling it when they try to protect their interests
No, we are incensed at the mainstream music industry's blatant evil, including its bribery of Congress to get copyright lengths to insane levels. Personally, I will not respect any copyright on a work made more than a quarter century ago. Most of us DON'T infringe copyright, even copyrights on works that should be in the public domain.
You are free to consider anything I wrote moret than 20 years ago in the public domain, and anything newer as having a CC license.
Re:focus on the actual issue (Score:3, Insightful)
Should she be charged for copying copyrighted material? Yes
Should she be charged for other people copying the same material from her? No.
Re:Did she profit from any of this infringement? (Score:3, Insightful)
Re:Did she profit from any of this infringement? (Score:3, Insightful)
What does her personal profit have to do with it?
If a new popular book gets published (say a surprise 8th Harry Potter or something), and I print my own version and just give away copies on the street, that's still infringement, even if I don't personally profit (actually, a loss with the printing costs).
It doesn't matter if I've personally profited, the publishing company (and the author and other associated people) have lost money on my infringement.
There are questions about how much the damages should be (certainly lower than what the RIAA is asking for) but IF infringement is proven, then there should be a punishment for it.
Maybe it works differently in some other parts of the world, but that's certainly the way it works on the US and Europe. That's the whole point of having copyright protection in the first place.
Re:This will be argued to symantics (Score:5, Insightful)
I can.
I had a PC that was infected with malware.
It was turned not into a spam zombie, but into a torrent seeder and FTP server.
Found the stuff in a hidden folder disguised to look like a Java update in the windows folder.
In my case it was disney movies and music, not CP (thank goodness), but the same thing could have happened to her. Would jive with the HDD replacement too. I noticed the issue because the machine lagged like a bitch, and it all looked like OS related problems. I could see someone installing a new HDD to solve that type of "problem".
-nB
Re:innocent until proven? (Score:5, Insightful)
GP's lack of precision notwithstanding, you seem to be saying that there is no discovery in civil trials. If that is what you're saying, then you would be mistaken [wikipedia.org].
Producing evidence demanded by the court is not self-incrimination; evidence is not testimony.
If I steal a CD from Walmart... (Score:3, Insightful)
Re:If I steal a CD from Walmart... (Score:2, Insightful)
Re:Welcome to Slashdot! (Score:5, Insightful)
Worked for Gandhi.
Worked for Prohibition.
Worked for national speed limit of 55 mph.
Seems to be working for pot.
Re:If I steal a CD from Walmart... (Score:3, Insightful)
It's not the downloading they are punishing. It is the sharing.
My understanding is that there is no evidence that she uploaded the files in question to anyone (except possibly to MediaSentry, who was authorized to get them by the copyright owners). She has to actually distribute copies to be in violation.
Maybe she did, but how would anyone know for sure? I don't think Kazaa made detailed logs, no P2P software that I am aware of makes logs like that (except in test builds or debugging modes).
Re:Welcome to Slashdot! (Score:5, Insightful)
So, rather than work to fix the law by taming your congresscritters, you prefer to break the law because it is easier than actually fixing the law and then whine when you get caught that the law is unfair. I am sure that will work out great and get things fixed up in no time.
"Voting for justice is as ineffective as wishing for justice; what you need to do is to actually be just. This is not to say that you have an obligation to devote your life to fighting for justice, but you do have an obligation not to commit injustice and not to give injustice your practical support."
"In a constitutional republic like the United States, people often think that the proper response to an unjust law is to try to use the political process to change the law, but to obey and respect the law until it is changed. But if the law is itself clearly unjust, and the lawmaking process is not designed to quickly obliterate such unjust laws, then the law deserves no respect and it should be broken."
- Henry David Thoreau
http://en.wikipedia.org/wiki/Civil_Disobedience_(Thoreau) [wikipedia.org]
Buyer's log... (Score:3, Insightful)
If anything, the list looked like a buyer's log of someone who was in fact getting music for free but was still buying plenty of DVDs and video games.
My receipts would also look like a "buyer's log of someone who was in fact getting music for free but was still buying plenty of DVDs and video games" because I Don't Listen to Popular Music. Even if I did, I Would Listen To It On The Radio. Or maybe I would be given CDs as gifts. In fact, maybe my Best Buy receipts wouldn't show the purchases because maybe I'd been suckered into one of those 2-cent record-club scams.
Re:focus on the actual issue (Score:3, Insightful)
She did not steal anything. Even your quotes don't make your statement OK.
First of all, "stealing" involves the original owner not having it anymore.
Second, the it suspected of copyright infringement.
I don't know how it's in your country, but saying that someone did it, before the judge decided it, is a criminal offense here in Germany. So if you were here, you could be sued right now.
And finally: You are right that you are as familiar with the case (and the law) as anyone with Internet and access to news. Which means you don't now anything, and repeat the RIAA FUD, that general "news" parrot too. Luckily, on this site, there is a higher standard. Wait for your +5, Insightful, to go to -2, Troll.
Re:focus on the actual issue (Score:3, Insightful)
Its like the guy that speeds to work everyday because the fine is only $100 and the chances of getting caught are slim.
No, it's like driving as though the fine would be $100, getting caught, then finding out that it's actually a quarter of a million dollars.
Re:Ah, the current law: the constitution (Score:3, Insightful)
> Where is the problem with the judge adjudicating that $500 is the penalty? It's stiff
> enough that Jammie will feel the pinch yet not so much she faces eternal punishment
> for what is, after all, a minor offence.
Considering that she's $130K in debt to her last lawyer, even if the judge let her off with $0.01 of damages she's still faces the "eternal punishment" of having to deal with a lawyer for as long as he wants her to try to pay off the debt (I get the impression that her ability to do that would mean that might be "for the rest of her life").
Re:Welcome to Slashdot! (Score:5, Insightful)
I don't recall ghandi going out of his way to stay anonymous. In fact, he made a big deal out of publicly breaking the law, and accepted the punishment to show how the law was unjust.
I don't recall this woman going out of her way to stay anonymous.
I don't recall Dave1.0 mentioning anything about anonymity.
In fact, you seem to make a big deal out of some arbitrary fact that isn't particularly applicable because you have a narrative going on in your head that is pretty well disconnected from reality.
Re:Welcome to Slashdot! (Score:3, Insightful)
Would you mind explaining to us just how one would go about fixing an unjust law that was bought and paid for by the entertainment industries? They "donate" to both parties (at least, the two the MSM mention, without MSM coverage none of the other parties have a chance) and no matter which candidate loses, you wind up with a winner who is on the side of industry.
I have three votes - one for each of my Senators, and one for my congressman. The industry gets 435 votes, all of which are far more powerful than my three votes.
You might as well tell me the way to get to the moon is to flap my arms real fast.
Re:focus on the actual issue (Score:1, Insightful)
She's already got a "deal"? Really? You seem to think that just because she wasn't charged the absolute maximum, then the entire fucking scheme for determining costs is perfectly acceptable.
The entire concept of $750 minimum for a fucking $1 song is mindboggling stupid. THE LAW IS WRONG AND AT THE VERY LEAST BE CHANGED. Those values were drawn up under the assumption it was a company doing the infringement FOR PROFIT on a large scale. There have been people admitting that it was never intended to be used on joe sixpack knowing damned well that fees that large would be sufficient to COMPLETELY DESTROY an individual's life. And until a new set of minimum and maximums are drawn up that are acceptable for private individuals, you're going to have companies doing these kinds of extortion. "Give us a few grand or we'll sue you for 500k."
Wow, a non-joke whooosh! (Score:4, Insightful)
Ghandi proposed non-violent civil disobedience as an effective weapon against injustice.
No matter how bad the rhetoric of the **AA's gets, almost no one considers file sharing violent.
But it is civil disobedience.
And yes, you are correct that Jammie hasn't reached Ghandi's spiritual level yet. But that was already clear to, er, most of us, even the poster to whom you replied.
Of course, if RIAA crucifies her enough times, who knows what might happen.
Re:Replacement hard disk (Score:5, Insightful)
Speaking as a former warranty tech, customers almost *never* remember when their last service was. 6 months off is pretty average.
Re:focus on the actual issue (Score:1, Insightful)
You're ok with bankrupting people over sharing songs simply because some legislators didn't realize how ruinous the law would be when they took donations in exchange for writing that law? Seriously? What the hell is wrong with you?
Re:Did she profit from any of this infringement? (Score:3, Insightful)
But if you photocopy $1000, leaving the original money right where it was, then burn the copy, the damages suffered by the victim are close to nil...
Re:And the evidence is compelling... (Score:3, Insightful)