RIAA Insists On 3rd Trial In Thomas Case 280
NewYorkCountryLawyer writes "Not satisfied with the reduced $54,000 verdict which the Judge allowed it in Capitol Records v. Thomas-Rasset, representing approximately 6500 times the amount of their actual damages, the RIAA has decided to take its chances on a third trial, at which it could only win a verdict that is equal to, or less than, $54,000. Since a 3rd trial in and of itself makes no economic sense, and since the RIAA's lawyers inappropriately added 7 pages of legal argument to their 'notice', it can only be assumed that the reason they are opting for a 3rd trial is to hope that they can somehow bait the Judge into making an error that will help them on an appeal."
This will multiply to other industries (Score:3, Interesting)
Vindictive much? (Score:4, Interesting)
No, I think other assumptions could also be made. Such as, maybe they're just a bunch of vindictive pricks who have the money and just want to screw with someone they lost to (well, it wasn't a loss, but they surely see it that way). Why not piss away another pile of cash?
Question for NYCL (Score:4, Interesting)
Does the idea of double jeopardy apply in civil law? If not, what prevents a plaintiff with very deep pockets from suing a defendant for something, losing, suing them again, losing, etc until the defendant's funds with which to defend themselves run out? Because this sounds like a pretty open-and-shut case of the RIAA doing exactly that, and the overall effect is that said defendant effectively loses even if they win.
Re:I don't condone what the RIAA does (Score:1, Interesting)
$0.30 per song, minus "costs"; things that are deducted on their corporate tax returns, attributable to legal downloads. My guess is they are claiming $0.10, perhaps less, as net profit on a song download. Remember, the labels are all claiming their iTunes deal is unprofitable. This is where all those poverty stories come home to roost.
Re:New Trial? Whatever Happened to Due Process? (Score:3, Interesting)
Oh, I prefer to respectfully decline to accept the court's final decision to put me in prison for 10 years. On basis that I don't like the decision and don't want to go to prison.
Re:Vindictive much? (Score:5, Interesting)
What's the point of building the hysteria around file sharing only to have it flounder? The best we'll get is a few
Re:New Trial? Whatever Happened to Due Process? (Score:5, Interesting)
I'm going to tell a quick story. When I was a minor (though admittedly close to 18), my parent and I filed a lawsuit against [z] for wrongful discipline. It wasn't really wrongful discipline, but that's the easiest way to put it: [x] had broken code/regulations dozens of times during the course of the incident after I had unknowingly done something wrong due to a "disability"; my lawyer discovered all of this, and we filed the lawsuit. During the first settlement meeting, they were in one room, we were in another, our lawyers/mediators were jumping all over and meeting privately at times. (Typical mediation.) They were extremely heavy-handed and wouldn't settle for more than a meager amount at first. Four hours into the meeting, the mediator and my lawyer came in the room and we began talking. I decided to play the best card I had after the mediator had informed me that they will be willing to spend however much money it takes, and go through trial for probably over a year, (that that is their main weapon against litigants that are common folk without much money.) I made it very clear to the mediator: "Listen, I'm going to be honest, I don't care about this settlement, it's not even a dent in my worth. I want them to learn their lesson, and I will not walk out of here without getting at least 20x what they are offering. When I turn 18, I am inheriting over two million dollars and will be more than happy to pay as many lawyers as it takes. [$x] is an insult to me and my family, and unless we see [$20x], we'll be looking very forward to trial and the ability to speak to the press about this whole ordeal."
Long story short, after 5 hours worth of arguing over the size of a three digit settlement, the mediator came back and informed us that over the course of five minutes, they accepted the five-digit number upon finding out about my inheritance and my eagerness to go to trial. For me, it wasn't a risky move: my lawyer already had the media lined up to speak to me and break the story, I really was inheriting a very large amount of money, and I was dying to go to trial (because of the severity of the "awe" factor in my favor). It's important to note, however, that if you have these three things against you, it becomes a much risker move to make. Though it's a risky move, its very effective, because as this article clearly shows, a large corporation/entity's main weapon is the fact that they can afford far more legal action than you can. Also please note that I was blessed to have had a great lawyer: my family and I were literally going days without eating in order to pay the mortgage and one or two bills a month (single parent), but my lawyer offered to take the case and allow me to pay him once I turned 18 or when we won. Because I was a minor, the settlement wasn't given to me until I was 18 anyway. I was very lucky to have such a large upper-hand against an entity that had an enormous advantage to begin with.
Moral of the story: as soon as they found out I was willing to dish out just as much (if not more) money than they were to fight, they backed down and realized even 20x the original settlement amount is worth ending the matter ASAP. Granted, this article is dealing with the RIAA and I have nowhere near the amount of available resources that they do. Because of that, they will continue fighting this battle just because they can and would like to deter file-sharers from doing this in the future. Legal fights are all about money: ever seen the lower-class people on Judge Judy fighting over $100? How long do those cases last? Think about it, it's all about money, and unfortunately when an entity as large as the RIAA sues an individual, it is a very uneven fight.
Re:Question for NYCL (Score:4, Interesting)
[W]hat prevents a plaintiff with very deep pockets from suing a defendant for something, losing, suing them again, losing, etc until the defendant's funds with which to defend themselves run out?
Frivilous litigation [wikipedia.org]
Barratry [wikipedia.org]
Vexatious litigation [wikipedia.org]
Malicious prosecution [wikipedia.org]
Take your pick.
Re:New Trial? Whatever Happened to Due Process? (Score:4, Interesting)
Re:Limited? (Score:4, Interesting)
As far as I understand, the judge has found that as a matter of law they can not claim more than 54,000$
This is not strictly true, and NYCL's summary is a bit misleading on this count. The jury question on damages will (unfortunately) be the same, and allow them to award between $750 and $150,000 for each infringed work. So they could again award $1.8 million, and have the judge again reduce it. However, what the RIAA is trying to do is draw out the issue of what damages are authorized by the statute - in the previous trial, the judge reduced the damages in a short post-trial motion without any opportunity for the parties to argue that he was wrong as a matter of law. This trial will give the RIAA an opportunity to get some facts and arguments on paper such that, if the judge limits damages again, they can appeal.
As for what other people have proposed, such as harassment of Thomas-Rasset or causing her to pay more, that's not an issue - I believe Camera-Sibley is defending her for free.
Re:New Trial? Whatever Happened to Due Process? (Score:5, Interesting)
How many times must Thomas-Rasset go to court for copyright violation on twenty four songs?!
Well, the RIAA are the ones insisting on a new trial, so I suspect the answer is until the RIAA gets the verdict they want .
:)
I know it seems that way, but not really.
The first trial's verdict was set aside because the Judge recognized that his acceptance of the RIAA's incorrect jury instruction on "making available".
The ruling setting aside the second trial's verdict was a partial victory for Ms. Thomas-Rasset, reducing a $1,920,000 verdict to $54,000.
In view of the Judge's ruling on the second verdict, the RIAA will never 'get the verdict they want'; the most they can possibly get is $54,000.
It is common, in granting "remittitur" due to an obviously out of control jury, to lower the verdict, but offer the plaintiff a chance to reject the lower verdict and get a do-over. Nothing at all unusual about it.
The RIAA will never get more than $54,000, and may well get less the second time around. And if the Judge finally does tackle the constitutional issue, I predict the third verdict will be a WHOLE LOT less.
Vexacious litigation? (Score:3, Interesting)
It's starting to seem like it. At some point, a judge is going to have to teach these buttheads a lesson by dismissing the damned case with prejudice. Or override any jury's damage amount and give them something like $100 dollars with the admonishment "Take or leave it but never file another suit over Thomas's copyright violations ever again.".
Re:I don't condone what the RIAA does (Score:3, Interesting)
Nope - the RIAA's evidence included direct downloads from her.
Really? That’s news to me. “Her computer said she would share the file” doesn’t work, because that’s not proof of actual sharing, and actually downloading the file from her didn’t work either because they were acting as an authorized agent of the copyright holder and thus they had the legal right to download it. They had to prove she uploaded it to someone who wasn’t authorized to download it already. How exactly did they prove that?
Limewire (Gnutella, actually) is a peer-to-peer network just like Bittorrent. It is unlikely that, even if she did upload, anyone downloaded a complete song from her alone. The Gnutella network routes its transfers from multiple sources just like Bittorrent does.
On another tack, it’s pretty well agreed that 1 illegal download isn’t 1 lost sale. By a similar notion, 1 illegal upload isn’t 1 lost distribution fee. In fact, the ratio for becoming a legal distributor should be even less than the ratio for legally purchasing the song: A few of the people who illegally download a song might have otherwise purchased it legally. Virtually nobody who illegally distributes the song would have otherwise became a legal distributor. You can’t claim that the downloader caused $x in damages where $x is the cost of the song, and you can’t claim that the uploader caused $x in damanges where $x is the licensing fee to become a legal distributor either.
IANAL, so I have no idea how to fit this defense into the existing laws. Or whether the existing laws even permit it. However, it is not at all unprecedented for the existing laws to be inapplicable to a new situation that the lawmakers didn’t foresee, and need to be bent to fit it.
Re:New Trial? Whatever Happened to Due Process? (Score:5, Interesting)
Thought experiment.
Let's say I rob a store. I steal 100 copies of the White Album. I also steal 100 car radios.
If I give away those car radios, I am distributing them. I am generally liable for the cost of the radios plus reasonable damages based on a small multiplier of their value.
If I give away those CDs, by your argument I have committed damage to the copyright holder equivalent to the value of the distribution rights of those songs.
Explain to me how uploading a song is a worse crime than selling those stolen goods, how it violates the right to distribute in a worse way. And if you succeed at that, explain how it is in any way reasonable for selling stolen $20 CD's to be a crime 100x worse than selling stolen $100 car radios.
Re:New Trial? Whatever Happened to Due Process? (Score:3, Interesting)
1. what the elements of "distribution" are under 17 USC 106(3) and
2. what evidence was submitted to prove them.
Interesting that neither the RIAA nor the Department of Justice could do that, but you can.
Re:New Trial? Whatever Happened to Due Process? (Score:5, Interesting)
I can't believe you've tricked the moderators into moderating your bogus comments as "+3, informative" when it is clear you are a shill or a troll.
Ray, we've communicated via email separate from Slashdot. You know that I'm a law student, and neither a shill nor a troll. Calling me names doesn't dismiss my points.
My points, I'll notice, which you haven't responded to, but have instead shifted the issue to saying "the RIAA never proved distribution."
Nonetheless, as was explicitly noted in the Tenenbaum trial, Tenenbaum admitted liability for distribution. That is prima facie evidence of Tenenbaum's liability and admissible under FRE 801(d)(2)(A). Even if that was the sole bit of evidence offered to prove distribution by Tenenbaum, nothing more is needed to show his liability - essentially, he confessed, and it wasn't even an issue for the jury. All of his defenses were affirmative defenses.
If you want to continue your charade, please tell us SPECIFICALLY: 1. what the elements of "distribution" are under 17 USC 106(3) and 2. what evidence was submitted to prove them. Interesting that neither the RIAA nor the Department of Justice could do that, but you can.
Well, the DoJ didn't do that because they didn't try. The DoJ has only been involved in this case on the constitutionality of statutory damages and have explicitly stated at every turn that they take no position on actual liability for infringement by either Thomas or Tenenbaum, so that's a bit of a red herring.
As for the RIAA, 106(3) is the right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." Of course you know that, so my guess is by stressing "distribution" in your question, you're asking for a definition of that specific word - if not, let me know.
For the definition of distribution, personally, I'd turn to Nimmer on Copyright, which states at section 8.11, "The copyright owner thus has the exclusive right publicly to sell, give away, rent or lend any material embodiment of his work." If you disagree with that definition, please let me know.
As for the evidence, as noted above, in the Tenenbaum case he admitted liability for distribution under oath. That's fine evidence. There was also the MediaSentry evidence, who downloaded a song from him, thus showing that he distributed it. Similarly, in the Thomas case, there was the MediaSentry evidence that was not excluded - whether it should have been is a different question. These show that Thomas and Tennenbaum both "gave away" a "material embodiment" of the work. Neither Thomas nor Tenenbaum presented any evidence that their actions did not constitute infringement under the First Sale doctrine.
These should answer your questions 1 and 2 above. Now, would you kindly address my points in the prior post, preferably without further calling me names?
My theory of what riAA wants (Score:1, Interesting)
The proof of my theory is here:
1) riaa browses the p2p networks and finds some data
2) riaa asks for settlements
3) riaa never admits they're wrong
4) riaa increases their claims and damages until they get a legal paper that the person did something wrong
5) riaa does not care who is their target -- anyone is good enough from p2p users -- as long as they admit doing something wrong.
6) riaa uses legal system to get the admissions, by stonewalling everyone who opposes it
the theory is that they don't care about the feeble money they receive from these lawsuits. Instead what they want is admissions that persons in this group did something wrong and that people belonging this group are _all_ criminals. They will no doubt collect statistics of how many people took the settlements and admit what riaa claims. And then this statistics will be used to pass some very dragonian laws or measures for isp's to prevent "unauthorised" downloads. So it's not about their copyrights at all, but a way to build statistics that favor them. They couldn't care less if some one person violates their copyrights. All they care is finding a way to destroy the whole group of people.
The real problem is that their product is not up-to-date. Their competitors found a way to build new technologies that got accepted by the public. ISP's are becoming real players in the market, making the environment difficult for people who create songs and distribute them to the public using old channels. Putting end to this practise is only possible if they have statistics that favors them. Statistics that say ISP's customers are all criminals. So they decided to create such statistics. Using real people. By destroying lives. They think that because they pressed some button to record some naturally occurring sounds and did that few hundred times, that they can destroy people's lives to create some statistics. Statistics that is needed to compete against other players in the market.
It's just a theory.
Re:New Trial? Whatever Happened to Due Process? (Score:3, Interesting)
One thing to consider is that by selling pirated copies of songs, you're not actually depriving someone of ownership of the copyright. This isn't a case of "You took a Beatles song worth $235k away from MJ, and MJ no longer has the Beatles song."
MJ didn't buy specific copies of Beatles songs - he bought the exclusive right to distribute. He'd be pretty silly to pay $235k for an album you can get at H&M for $20. If you start distributing, you're infringing his exclusive right.
Think of it this way - exclusionary rights are property rights, like trespass. If I drive my car across your lawn, you still have your lawn. Nothing has been "stolen" from you. But I have infringed your right, as owner of that land, to exclude others from use.
It's a case of "You distributed X copies of a song that you had no right to distribute." In reality, the damages should be (# of copies given out [directly and indirectly]) times (highest price the song sells for) times (decent penalty multiplier, maybe 3-6 times).
You include "highest price the song sells for", but there's no reason for that... MJ paid $235k for the right to distribute a song. If you illegally distribute that song just once, by your formula, you owe him $1*$1*[penalty multiplier]. So the right he paid $235k for is worth only that. And similarly, the property is now almost valueless. Why would anyone ever pay for a license of something if they could freely take it and be liable only for a couple bucks... and in reality, liable for nothing, because who is going to file a $10 thousand dollar lawsuit over a couple bucks? In what way is this supported by statute or case law?
Re:New Trial? Whatever Happened to Due Process? (Score:3, Interesting)
You have yet to point us to a transfer of ownership, or to a rental, or a lease, or a lending.
How many times will you move the goalposts before responding to my earlier post, Ray? And to think you called me a troll.
Nonetheless, I will answer your question yet again, even though you haven't addressed any of my points. Transfer of ownership includes giving away copies, which was done here. Are you arguing that the transfer of a copy of a work from the personal computer of one person, to the personal computer of another person, does not constitute a transfer of ownership of said second copy? Do you have a citation, because case law in Litecubes and National Car Rental Sys. are against you.
Now, I've responded to yet a third post of yours, Ray. Can you please now address my points from my first post - the one where you called me a shill or troll, without addressing anything I said?