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Thomas' Testimony and the RIAA's Near-Fatal Error 283

Posted by Soulskill
from the not-doing-themselves-any-favors dept.
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."
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Thomas' Testimony and the RIAA's Near-Fatal Error

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  • by _14k4 (5085) <sullivan.t@nospAm.gmail.com> on Wednesday June 17, 2009 @10:05AM (#28361727)

    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.)

    • by whiledo (1515553) * on Wednesday June 17, 2009 @10:11AM (#28361793)

      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: (Score:3, Informative)

        She doesn't.

        I thought they were able to examine the drive by court order because they'd already gathered enough evidence of wrongdoing (through the ISP's logs) that she'd committed a crime. It's like saying that the police shouldn't be able to search your house because you're innocent until proven guilty: that's correct, until they've got enough evidence that the judge thinks the search is reasonable.

        • by vux984 (928602)

          I thought they were able to examine the drive by court order because they'd already gathered enough evidence of wrongdoing (through the ISP's logs) that she'd committed a crime.

          What crime? Copyright infringement isn't a criminal offense. That's why the RIAA is suing her instead of a state prosecutor.

          's like saying that the police shouldn't be able to search your house because you're innocent until proven guilty: that's correct, until they've got enough evidence that the judge thinks the search is reasonable

          • Is also a crime (Score:3, Informative)

            by Mathinker (909784)

            > Copyright infringement isn't a criminal offense.

            Of course it is [wikipedia.org]. If the volume is enough, and/or it's for profit, or pre-release then maybe the state/federal prosecutor's office will go after you.

            Slashdot has had [slashdot.org] several [slashdot.org] stories [slashdot.org] about [slashdot.org] people [slashdot.org] facing jail time in criminal copyright cases.

            • Re: (Score:3, Informative)

              by vux984 (928602)

              If the volume is enough, and/or it's for profit, or pre-release then maybe the state/federal prosecutor's office will go after you.

              None of which applies here.

              Yes, copyright infringement in certain circumstances can be criminal. This is not that.

    • by Anonymous Coward on Wednesday June 17, 2009 @10:11AM (#28361801)

      Sorry, "innocent until proven guilty" only applies to criminal cases, not civil cases

    • by spydum (828400) on Wednesday June 17, 2009 @10:16AM (#28361867)
      Innocent until proven guilty, yes. However, it says nothing about being inconvenienced. That's the unfortunate side to our legal system: although we pretend the burden is on the prosecution to prove guilt, you still are left dealing with the issue, even if innocent. Expect legal fees, court dates, evidence collection, and with all of that comes time off of work, phone calls, stress, etc..
    • by Mr. Underbridge (666784) on Wednesday June 17, 2009 @10:18AM (#28361887)

      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.

      RIAA shenanigans aside, this is how the justice system basically works: if you have some evidence, the judge will let you request other evidence that may be related to help make your case. Here, given the fact that an IP address linked to her was observed engaging in possibly illegal behavior, it's reasonable to request access to the hard drive to determine whether her computer was involved. Most people (and probably any judge) would see that as reasonable. On the other hand, if they requested a search of her car (for instance), that would probably get tossed because it's unlikely to be relevant.

      What you're basically suggesting is that search warrants and discovery be made illegal. If that happened, lots of extremely illegal behavior would be impossible to prove. Enron comes to mind initially.

      As always, I'm not a lawyer, I just play one in my mind.

      • by nweaver (113078) on Wednesday June 17, 2009 @10:36AM (#28362089) Homepage

        The RIAA's evidence is compelling.

        The IP address was hers, with no WiFi, no NAT, and a password-protected Windows box

        The username chosen was the one she's used online traditionally for 16 years.

        The problem is, the nearly inevitible $100K verdict will not be justice, even if it is legally correct.

        • by hoggoth (414195)

          > the nearly inevitible $100K verdict will not be justice, even if it is legally correct.

          The judge in this case has stated that he thinks the size of the penalty is excessive, but he is bound by the current laws. He has urged congress to fix this.

          Congress replied "but the RIAA is buying us lots of great stuff" - ok, that last part isn't true... Congress didn't SAY that in public.

        • by vlm (69642) on Wednesday June 17, 2009 @10:54AM (#28362305)

          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: (Score:3, Informative)

            by erroneus (253617)

            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.

            They didn't just pull an IP address out of the air. With that IP address, they went to the ISP that owns it and acquired the information about the person whose account was assigned the IP address. And from there, they reached her, filed suit and here we are.

      • Re: (Score:3, Interesting)

        by zotz (3951)

        [ 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 plaintif

      • Still, accuser bears the burden of proof. Unless something change there as well when I wasn't looking.

        • Still, accuser bears the burden of proof. Unless something change there as well when I wasn't looking.

          Yes, but proof requires evidence, and evidence requires discovery. Otherwise if you require proof of culpability to simply discover evidence, you get circular.

    • Re: (Score:3, Informative)

      by Jason Levine (196982)

      I'm not a lawyer, but I believe this is a normal part of evidence discovery. One side makes an accusation ("you shared songs illegally") and tells the judge that additional evidence resides on the defendant's hard drive. The judge, if he/she accepts the argument, can order that the defendant surrender the hard drive - usually to some neutral third-party for analysis. The defendant can refuse but then their behavior looks suspicious and they risk angering the judge. If you anger the judge, you can quickl

    • Re: (Score:3, Insightful)

      by Opportunist (166417)

      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 s

  • by rarel (697734) on Wednesday June 17, 2009 @10:28AM (#28362011) Homepage
    I'm as familiar with the case as anyone with Internet and access to news, so my opinion is just thatm, but I think that as far as innoncence goes Thomas is pretty fucked. There are lots of hints that she is actually guilty, and her apparent perjury certainly won't help.
    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: (Score:2, Insightful)

      by rarel (697734)
      Oops, it's actually quarter-million, my bad. (Still excessive though so the point still stands)
    • Re: (Score:3, Insightful)

      by kenp2002 (545495)

      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

      • Re: (Score:3, Informative)

        Yeah it is pretty steep. According to US Code, Title 17, Chapter 5, Section 504, subsection c 1-2 the minimum fine is $750 per item + legal costs of plantiffs with the option of up to 1 year in jail. So the absolute minimum if found guilty would be $21000 + whatever the RIAA's legal expenses cost. With two trials now I suspect it would be tens of thousands in legal fees. Incidentally the maximum penalty is 30k per item which would be 720k + legal + 1 year, so she already got a deal. The law might be unfair
        • Re: (Score:3, Insightful)

          by Just Some Guy (3352)

          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: (Score:3, Insightful)

        by DJRumpy (1345787)
        She shouldn't be charged with any criminal activities acted out by other individuals. She did not force them to download from her. She is responsible only for the content she downloaded. One could even argue that it is negligence on the record companies part for making the music so readily available to shared out if you follow their current punitive damage model of X gave to Y who gave to Z.

        Should she be charged for copying copyrighted material? Yes

        Should she be charged for other people copying the sam
        • by kenp2002 (545495)

          She shouldn't be charged with any criminal activities acted out by other individuals.

          Umm isn't this a Civil case?

        • by Shagg (99693)

          She shouldn't be charged with any criminal activities acted out by other individuals. She did not force them to download from her. She is responsible only for the content she downloaded.

          You have that backwards, uploading is copyright infringement. She is on trial for uploading content to others, not downloading for herself.

          • Re: (Score:3, Interesting)

            by DJRumpy (1345787)
            How can they prosecute uploading to others without actual proof that she uploaded an entire song? Torrent clients simply offer up the files. Wouldn't the person downloading has to initiate the connection, much like a prostitute would have to solicit a cop?

            (sorry, bad pun, or is it?)
    • Re: (Score:3, Insightful)

      by Opportunist (166417)

      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.

      • 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.

        You mean to the lawyers. The RIAA are basically an organization of lawyers.

      • Only if you consider RIAA lawyers to be "the court".
    • Spot on.

      Any reasonable person would say that she's guilty based on the evidence in the case. However, just as equally, any reasonable person would agree that the punishement must fit the crime.

      Why can't it be left to a combination of the judge and reasonable persons to identify the punishement in this case?

      It seems blindingly obvious that [losses] * [multiplier] * [multiplier-for-lying] result in an fair punishment. As an reasonable person, I'd suggest figures of:

      [losses] = number of songs shared * $1 (co

    • Re: (Score:3, Interesting)

      by Shagg (99693)

      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: (Score:3, Insightful)

      by Hurricane78 (562437)

      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.

  • by DontLickJesus (1141027) on Wednesday June 17, 2009 @10:32AM (#28362051) Homepage Journal
    The HD manufacturing date could be argued out. Those understanding HD recovery also understand that there are scenarios where she could meet her legal requirements and provide a different drive, or she could have been giving the failure date, not the replacement date. We must also take into consideration that a) maybe she isn't the one who swapped it and b) this is a sticker, not digital info from the drive.

    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-
    • Courts tend to go by a "most likely" reasoning. What's most likely to be the truth? Someone hacking her PC, installing Kazaa and downloading files, or her doing it herself?

      I'm not really a friend of the RIAA or their tactics, but even I can't come up with a good excuse for scenario A...

      • by networkBoy (774728) on Wednesday June 17, 2009 @11:26AM (#28362719) Homepage Journal

        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

        • You'd think that a more reasonable method for handling this kind of thing would be a mechanism in place by which ISPs are required to forward a warning from the copyright holder to the alleged downloader. At least that way the owner of the machine, if honest, could get their system checked out. Even if they're not being entirely honest, it's a chance for them to step back from the abyss. I'd imagine a formal warning with no immediate action would benefit everyone. If the user in question continues to show-u

    • Re: (Score:3, Informative)

      by canajin56 (660655)
      RTFA. It's not just the one date. It's also the fact that Best Buy KNOWS when it was replaced, and it was AFTER she was informed she was being sued. The chronology is set. It happened in this order. 1) (Unlicensed?) investigators find that this user account "tereastarr@KaZaA" is sharing a whole lot of music. For some reason they think it's a good idea to PM this account through KaZaA and say "You're busted!". 2) AFTER THAT HAPPENED her HD "Breaks" and she takes it to Best Buy for THEM to replace it
  • by ultraexactzz (546422) on Wednesday June 17, 2009 @10:42AM (#28362165) Journal
    In this case, a guilty verdict isn't at all a bad thing, if the damages are reasonable. If damages of $200,000 or more are awarded, then the RIAA strategy is validated. They prove that they can win, and that they can win significant damages. It would also give credence to their "Settle or we'll sue for all your money" letters, as an award of that scale could easily wipe anyone out, house and all.

    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: (Score:3, Informative)

      by twidarkling (1537077)

      First, felony perjury is rarely prosecuted. Secondly, the RIAA has repeatedly said that it's not about the money. It's about the fear. (paraphrasing, of course). They want to make anyone afraid that if they get that letter, they could face years in front of a court, and lose everything to legal fees, judgement of insane proportions or not.

  • Why don't they sue the Internet companies for hosting the material and facilitating illegal copying. Instead of suing end users, grannies and dead people [theregister.co.uk]? Or did the CAN-SPAM [cnet.com] act indemnify the ISPs.
    • I believe there's been multiple rulings that ISPs are not responsible for the data that flows through their servers, so long as they're not personally hosting it. Even then, it's damned hard to do anything if they ARE hosting it.

  • No. So why is the RIAA able to pursue this crap in the first place? *sigh*

    • by MightyYar (622222)

      Unfortunately, we have copyright laws which apply to non-commercial use.

      I'd much rather that weren't true. It should be legal for me to copy a CD and hand it to my mother. Few would find a moral problem with this, and yet we have laws which forbid it.

    • Re: (Score:3, Insightful)

      by selven (1556643)
      Not that I approve of the RIAA, but the amount of profit you make is irrelevant to the damages suffered by the victim. So stealing $1000 is not less bad if you burn all the money right after.
      • Unless you're SCO [one of their arguments was "Oh, we spent *THAT* money".

      • Re: (Score:3, Insightful)

        by SydShamino (547793)

        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: (Score:3, Insightful)

      by GreatAntibob (1549139)

      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 shou

      • 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.

        Ummm... how does "someone on the street receiving your freely given copied print of said work" equate to "copyright holder and/or publisher losing money" exactly? Lots of people will take/accept something freely given to them that they would not otherwise have paid a single penny for and therefore equates to zero financial loss (except on your part as you indicated). This fundamental concept is what really irks me about all of the exaggerated claims of financial loss across the board when it comes to any so

    • No. So why is the RIAA able to pursue this crap in the first place? *sigh*

      Because of David LaMacchia. [wikipedia.org]

  • by BlueKitties (1541613) <bluekitties616@gmail.com> on Wednesday June 17, 2009 @11:35AM (#28362829)
    (Assuming a first time offense) At worst, I'll probably spend a few months on probation and lose about $1,000 in legal fees/fines. If I download the same CD online (which, for the record, didn't cost the record company shiping or a CD) I'll get slammed with hundreds of thousands of dollars in fines. I don't care if she's guilty -- she shouldn't suffer any more than someone who stole the same music off a store shelf.
    • by erroneus (253617)

      It's not the downloading they are punishing. It is the sharing. So to complete your analogy, compare stealing a CD and giving it to someone versus downloading the same CD and sharing it with countless hundreds or thousands of faceless strangers.

      While I hope for Thomas's success on this and damn the RIAA straight to hell, it is important that you have the facts and technicalities straight.

      • Re: (Score:3, Insightful)

        by number11 (129686)

        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: (Score:2, Insightful)

      Sadly, legal logic doesn't always follow would would be a sensible point. In this case what's being tried isn't the CRIMINAL act of stealing a cd, which gets legal protections on excessive punishment, but a civil case in which the idea of damages is so inflated. So instead of being tried for stealing music, she's being tried for the damage she did by her method of stealing it. I agree with you, but this is fully a three-ring-circus at the moment.
    • by jayhawk88 (160512)

      If you, however, stole several thousand CD's from Wal Mart, that could potentially become a felony (depending on the total dollar value of the theft), and would carry with it much more serious punishment (including a substantial fine most likely) then the theft of one CD.

      • by mini me (132455)

        If you murdered someone you may, depending on the jurisdiction, be sentenced to death. But what does that have to do with copyright infringement?

  • Buyer's log... (Score:3, Insightful)

    by Culture20 (968837) on Wednesday June 17, 2009 @12:20PM (#28363391)

    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.

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