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."
What is Thomas' Endgame? (Score:5, Interesting)
For Thomas, the endgame is the reverse. I'm not at all sure she can show that she is innocent, given her testimony - which is a shame, but not unexpected. Her goal must be to somehow limit the damages to a reasonable amount. Doing so sets precedent - if the RIAA can expect only a few thousand for a case that goes to trial, then it ceases to be profitable for them to try. The settlements will become more affordable, or may go away - why spend $1,000 on an attorney to get a $500 settlement back?
Were I in Thomas's place, I would be far more worried about the Perjury thing, which is an actual criminal offense. She said one thing under oath, and then said another thing under oath, and the statements are not compatible. So, we're in a position where she might win the trial (or get reduced and affordable damages), but end up in jail with a massive fine for lying under oath. Not good.
Re:And the evidence is compelling... (Score:4, Interesting)
The RIAA's evidence is compelling.
The IP address was hers, with no WiFi, no NAT, and a password-protected Windows box
So far, not compelling at all. All they really have is they picked an ip address out of the air. Success is about as likely as picking a random ten digit number and filing a suit against whomever has it.
The username chosen was the one she's used online traditionally for 16 years.
Ah, that one item, combined with the rest, she's screwed. There's a lesson here about selecting usernames when doing something questionable.
Re:innocent until proven? (Score:3, Interesting)
[ If she is innocent until proven guilty - why does she have to give up her hard-drive and "prove" her innocence? Nobody is forced to prove innocence. The RIAA should be given the challenge, without her hard drive, of proving guilt. /shrug (IE: external records, etc.)
First, this isn't a criminal trial. It's civil, so there's no concept of "innocence." So they only have to show that a preponderance of the evidence shows that she committed the acts in question. The burden of proof still lies with the plaintiff, but to show a preponderance of evidence, they still need *access* to the evidence.]
I wonder if it would make sense to require the "beyond a reasonable doubt" level where statutory damages are in play. After all, if one side doesn't have to prove they were damaged, perhaps they should have to prove the other side was wrong beyond a reasonable doubt. ???
drew
Re:What is Thomas' Endgame? (Score:1, Interesting)
The reason perjury is rarely prosecuted is because of the element of "knowingly" giving false testimony. Just showing the testimony isn't wrong is not enough. Further, it's also fine if someone says one thing then says the exact opposite in the same proceeding - the words aren't cast in stone at the moment they are uttered and a simple "I apparently was mistaken" takes care of the perjury matter. The damage to credibility is the part that lawyers are interested in - as in "she said X, then she said Y and says she was mistaken about X, how can you REALLY believe anything she said?"
Re:innocent until proven? (Score:4, Interesting)
Like so many people, you fail to distinguish criminal cases from civil cases. RIAA vs Anything is a civil case.
If I decide I don't like you (and you're off to a slow start), and I accuse you of defrauding me for some arbitrary amount, that does not grant me the right to barge into your home with an armed rent-a-cop and confiscate your bank records. I have to present reasonable proof by my own means, the court can't ask the defendant to self-incriminate.
Ah, the current law: the constitution (Score:1, Interesting)
A civil case cannot assign punitive damages unless proven they need to be made and if awarded go to the court, NOT the plaintiff.
And the constitution (the highest law in the land) says that the penalty cannot be excessive.
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.
Re:And the evidence is compelling... (Score:4, Interesting)
Essentially, MediaSentry set up their own P2P client software and recorded the IP addresses of the computers hosting and serving complete copies of whatever material.
However, they never bothered to download the files - all they did is go by file name.
Re:Welcome to Slashdot! (Score:1, Interesting)
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.
Re:focus on the actual issue (Score:3, Interesting)
There are lots of hints that she is actually guilty
Guilty of what though? It looks pretty obvious that she's guilty of running Kazaa, but that's not illegal. The RIAA can potentially show that she was "making available" 24 songs, but that's not illegal either.
The *real* question is whether the RIAA has any evidence that she actually uploaded files to other people, which would be where the copyright infringement occurred.
Re:focus on the actual issue (Score:3, Interesting)
(sorry, bad pun, or is it?)
Re:And the evidence is compelling... (Score:3, Interesting)
So they can only prove that there was a single count of copyright infringement back to agents of the copyright holder, the actual damages for which are $0.