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."
Beating a Dead Horse (Score:5, Funny)
"The code of tribal wisdom says that when you discover you are riding a dead horse, the best strategy is to dismount.
In law firms, we often try other strategies with dead horses, including the following: buying a stronger whip; changing riders; saying things like 'this is the way we have always ridden this horse'; appointing a committee to study the horse; arranging to visit other firms to see how they ride dead horses; increasing the standards to ride dead horses; declaring that the horse is better, faster, and cheaper dead; and finally, harnessing several dead horses together for increased speed."
-- Judge Thomas Penfield Jackson, 16 February 1999, in the courtroom after lunch on the second day of testimony from Microsoft's Brad Chase.
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Best. First. Post. EVER.
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For sure, where's the +1 perfect mod when you need it?
Re:Beating a Dead Horse (Score:5, Insightful)
You forgot: making the defendant crawl underneath the horse and forcing him to carry both it and you.
A legal system in which the powerful can obtain the practical result they desire simply by grinding down the weak has no legitimate moral authority. Its principles are a sham; they have no practical significance. You might as well auction verdicts to the highest bidder.
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I think the cause of action that you're looking for is "malicious prosecution" (as in prosecuting a lawsuit, not a crime). Civil law does have several doctrines of estoppel, at least one of which should apply if RIAA wants to re-argue the case. Hopefully the judge asks them to clarify the claims being made here so that the defendant doesn't have to waste her own counsel's time on the issue.
Re:Beating a Dead Horse (Score:5, Insightful)
You misunderstand the meaning of "moral authority".
It does not mean that the law is based on morality, but rather that at some point we as citizens participate in the social contract because we believe that the law is moral or at least somewhat fair or fairly applied.
If citizens start to view the law as less than fair, or even immorally unfair, you start to see people openly and enthusiastically break the laws, say by downloading torrents of the latest album by Rise Against or Li'l Wayne or the RELOADED release of Bioshock2 or the DVDSCR of Avatar. They basically say, "This system is so fundamentally biased toward the big corporations whose behavior is so antisocial that we might as well try to carve out our own little piece of the corrupt pie while the getting's good". [please note that the preceding was offered for the purposes of providing an example only and is not an endorsement of lawbreaking or torrents or the excellent quality of scene releases]
So, it's not that "our legal system is a moral authority" but rather we are willing to give it moral authority over our behavior and transactions because we believe it is reasonably just.
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The law shouldn't be based on morality at all; it should be based on protecting the rights of citizens and providing for their common interest. (For instance, I don't know if there's any case history establishing that people have a right not to be irradiated by a nuclear meltdown, but nuclear regulations are a law most people would want on the books anyway.)
I don't want the law telling me that I can't buy a beer on a Sunday before noon. What if I work nights? Sunday before noon is like Saturday night to me.
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True. Law and ethics are not necessarily mutually exclusive. “Law” is what you should not do. “Ethics” is what you should do.
In other words, “law” is a baseline of what everyone can agree that you should not do. As such, it is a rudimentary form of ethics. If you stop there (and some people do... e.g. CEO who finds a loophole in the law, and feels it’s ok for him to exploit this loophole without technically breaking the law), everything which is not illegal is then
Re:Beating a Dead Horse (Score:5, Funny)
Being a dick isn't illegal, sleeping with your wife's sister isn't illegal, being selfish isn't illegal
But mix these three ingredients together and you'll have a wonderful time!
Re:Beating a Dead Horse (Score:5, Insightful)
By "moral authority" I mean that an authority has a just and rational claim to my voluntary cooperation.
Suppose you and I go to court over the ownership of a widget that is in my possession, and lets say the court finds in your favor and orders me to hand over the widget. Naturally, in my view that order is wrong and the decision is unjust. However, no system of law is perfect and arrives at only just decisions. If we are to have any law at all, we have to live with the occasional unjust decision. So it is rational for me to comply voluntarily because as much as I hate losing the widget, I have a greater interest in living in a society governed by rules that are at least approximately fair and approximately impartially applied.
Let's say on the other hand that the law is crooked, and the case is fixed so you win because of your influence. Then the only rational reason for me to cooperate with this unjust and undesired decision is to avoid punishment. If I can undermine the system or thwart it in any way I am fully justified in doing so, provided I can avoid detection or punishment.
Rightly or wrongly, people feel that copyright laws are incomprehensible, unbalanced, and written to the specification of narrow special interests, not with the good of society in mind. Therefore they feel little compunction about breaking those laws if they can get away with it, because the laws are generated by a corrupt political system. When both the drafting and enforcement of certain laws favor certain special interests, then not only do those laws fail to gain voluntary cooperation, people become accustomed to committing petty "crimes".
This is the meaning of the Chinese proverb: many laws make many criminals. In autocratic societies, laws aren't made for the common good, therefore many laws only further alienate the people.
Re:Beating a Dead Horse (Score:4, Funny)
Unfortunately, as it turned out, Microsoft's horse was only mostly dead.
Re:Beating a Dead Horse (Score:5, Funny)
There's a big difference between "mostly dead" and "all dead". You see, "mostly dead" is "slightly alive". With "all dead", well, there's usually only one thing you can do - go through his clothes and look for loose change.
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But that's not what he said! He distinctly said "to blathe", and as we all know "to blathe" means to bluff! You were probably playing cards and he cheated!
So we're talking about Microsoft, then.
Oblig (Score:4, Funny)
Re:Oblig (Score:4, Funny)
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Or in this case "yeah, the horse might be dead...but if we pretend it isn't then we, the caretakers, get to keep our job"
Really, does anybody need more than circumstances descibed in TFS to conclude that the RIAA nowadays and this new trial is solely for the finacial benefit of lawyers?
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New Trial? Whatever Happened to Due Process? (Score:5, Insightful)
After considering the Court’s Order, Plaintiffs regretfully must decline to accept the remittitur since the rationale underlying the remittitur is inconsistent with the Copyright Act and its legislative history, as well as established case law.
I am not a lawyer but how many times can you prolong at trial? I'm aware of the appeal process but is this even an appeal? It sounds more like they're saying "we refuse to accept the court's decision" which is not quite how I recall law in the United States to work.
Then their filing says this:
In light of the foregoing, Plaintiffs respectfully decline to accept the Court’s remittitur and shall work with Defendant’s counsel and the Court to set this matter for a new trial on the issue of damages.
Emphasis mine. So this isn't an appeal or a retrial but instead a new trial? How many times must Thomas-Rasset go to court for copyright violation on twenty four songs?!
Further more, if any lawyers are reading this, does this affect the precedence that this verdict would set? Will Capital v. Thomas be referenced with an asterisk indicating that the first eight trials found her on the hook for any amount between $24 and $2 million causing the judge to finally throw it out on the ninth "new trial"?
Whatever happened to due process and not being able to stand trial for the same crime twice? Is this new trial a civil suit where the first two trials were criminal suits?
I understand some issues are not clearly defined in law but this is turning into a circus.
Re:New Trial? Whatever Happened to Due Process? (Score:5, Insightful)
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 .
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Whew, the system works.
Re:New Trial? Whatever Happened to Due Process? (Score:4, Interesting)
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.
Re:New Trial? Whatever Happened to Due Process? (Score:5, Informative)
I suspect this is a somewhat silly question, but ...
Will the extra costs incurred to Thomas after the 54k verdict be plaintiff? I.e. if the RIAA's tactic here incurs an extra 5,000 dollar in legal fees, will she be allowed to deduct that from the next verdict?
Or can this be seen as a tactic to put more strain on her financial situation? I.e. they know they can't get more than 54,000 dollars, but if they can force her into bankruptcy by not only holding that 54,000 dollar verdict over her head but also constantly increasing legal fees, they can force her into an out of court settlement that may be cheaper for her (legal fees only), but kept under wraps so as not to set precedent.
1. In the present posture, she can't win, absent an appeal. The second trial is just about the amount of damages.
In actuality the RIAA will incur at least a hundred thousand dollars for another trial, probably more. And that's not counting the other expenses, such as employee time, etc.
I think, but am not sure, that there was a special agreement in this case precluding attorneys fees.
Sometimes settlements are entered into the public record, sometimes not. Either way, they are not judicial precedents.
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Thanks for the explanation of why another trial is possible when the judge sets aside a civil jury's damage award. But, what's the point if it can only serve to uphold or reduce the current award?
In the context of this particular case, there is absolutely... no... point.
Re:New Trial? Whatever Happened to Due Process? (Score:4, Insightful)
Wow, I wonder if everyone can "respectfully decline to accept" the court's agreed-upon settlement in a civil case. "No, we're going to keep coming back until Walmart pays me one trillion dollars to replace this faulty TV."
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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.
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Most people don't have the money to send the lawyers back again and again...
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At this point, I think the legal system will fail us if it doesn’t ensure that the RIAA doesn’t either.
I’m thinking throw out their case, slap contempt of court fines on them and their lawyers for wasting the court’s time, and make them pay the defendants’ legal costs... all of them... including the legal fees incurred during the trials that the RIAA is supplanting with this one.
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Well, IANAL, but they can't appeal--because they won the case.
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Whatever happened to due process and not being able to stand trial for the same crime twice?
As this is the RIAA bringing the case, rather than The People (or whatever the US's equivalent of the UK's "Crown vs ..." is), surely it's a civil case and it can be brought as many times as a judge is willing to put up with it before throwing it out of court and telling them not to come back?
(ObDisclaimer: IANAL)
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.
Moral of your story: justice for the rich (Score:5, Insightful)
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. [...] Moral of the story
Moral of the story: justice for the rich.
Now, don't get me wrong. I think it's great you won your victory there. A three-digit settlement (in dollars) isn't a huge deal financially; I'd be angry to pay it but I'd be able to manage it (heck, I just bought a new phone for high three digits even though my current one works just fine), and I'd been able to afford it even when I was on state welfare for students (in socialist Denmark, the government pays you to study...). Symmetrically, I'd be happy to receive a three-digit settlement---zomfg free monies!!
And I'm not speaking out of envy for that large wad of dough. Sure, I'd love to have two million dollars, but I think I'd just be putting them in a savings account just like I am my doing to my money now.
It's just striking to me that you backed up your threat of litigation with "I have a large amount of money" rather than "I have a very strong case". That speaks volumes.
Re:New Trial? Whatever Happened to Due Process? (Score:5, Informative)
IAAL. It is really a part of the same trial-- the rules of remittitur say if you don't like how the judge reduced your award, you can try the issue of damages again. Basically means if you think the judge wrongly reduced the jury verdict, you can and should have the jury try again, so we know, on appeal, what a second jury verdict was (a perspective on the reasonableness of how much the judge chopped off the first verdict). If I were an appellate court judge I think I'd want to see that.
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a) It's not a criminal trial but a civil matter. In that case, these cases can keep being tried until all parties run out of money or interest in the case. Even if one party is out of money, the other party can keep it going until THEY run out of money. There is only one decision that can stop re-trials and that brings us to b.
b) The judges have so far ruled that the cases be dismissed WITHOUT PREJUDICE. That means, as long as the courts keep ruling this, the cases can be brought on again. This is off cours
Re:New Trial? Whatever Happened to Due Process? (Score:4, Informative)
b) The judges have so far ruled that the cases be dismissed WITHOUT PREJUDICE.
Not true. The RIAA won the first trial, and were awarded $222k in damages. The judge dismissed that one due to an error in the jury instructions. The RIAA won the second trial and were awarded $1.92 million in damages. The judge reduced the award to $54k, and the RIAA has opted for a new trial on damages rather than accept that. The previous trial is not dismissed without prejudice - rather, the jury findings that Thomas was liable for 24 counts of willful infringement of the right to copy and 24 counts of willful infringement of the right to distribute aren't touched. This trial will only be on what level of damages are awarded.
And, it makes sense for the RIAA... The judge reduced the damages from $1.92 million to $54k in a post-trial opinion. The RIAA didn't get to argue that that was improper, so they'd have nothing to appeal. This new trial gives them a chance to argue that decision.
And don't weep for Thomas-Rasset. Her lawyers are working pro bono.
c) The judges have not ruled against the cases to be unconstitutional.
Yeah, and NYCL's wishes aside, they're really unlikely to do so. Article I, section 8, clause 8 expressly gives Congress the power to create copyright law. That's clearly constitutional - the only issue for unconstitutionality is statutory damages, but that's a tough road to hoe. First, because Congress has the power to create copyright law, then the courts have to defer to how they create the law, provided they're within the bounds of the 5th amendment. Second, if you want a original-intent argument, copyright law has included statutory damages since the original 1790 Act, only three years after the Constitution. Third, the arguments that statutory damages are out of proportion with actual damages ignore most of the damages, specifically the infringement of the right to distribute. It's like saying that sending someone to jail for 5 years for speeding is grossly excessive, and neglect to mention their DUI and hit and run.
Re:New Trial? Whatever Happened to Due Process? (Score:5, Informative)
Re:New Trial? Whatever Happened to Due Process? (Score:5, Insightful)
For anyone interested in the constitutionality of the RIAA's statutory damages theory I suggest reading our revised amicus curiae brief [blogspot.com] filed in SONY v. Tenenbaum, and -- if you wish to go further -- reading the 3 law review articles cited in the brief.
Thanks for that link. If I may address a few points...
1) My previous post notes that "the arguments that statutory damages are out of proportion with actual damages ignore most of the damages, specifically the infringement of the right to distribute. It's like saying that sending someone to jail for 5 years for speeding is grossly excessive, and neglect to mention their DUI and hit and run."
You mention this in your brief on page 6:
They seek statutory damages of from $750 to $150,000 as to each MP3 file, without regard to whether what they have proved, as to that file, is mere “downloading” -- i.e. violation of the reproduction right -- or “distribution”, i.e. violation of the distribution right.
...In the case of a “distribution” -- i.e. defendant's having acted as a “distributor” and having actually disseminated actual copies to the public, by a sale or other transfer of ownership, or by a license, lease, or lending -- the actual damages would no doubt be greater than 35 cents, and the subject of further proof.
You explicitly note that actual damages would be higher, but suggest that they be the subject of further proof. Statutory damages under 17 USC 504 do not require proof of actual damages. Rather, the plaintiff merely has to show infringement and opt for statutory damages, and the defendant may show proof of actual damages to mitigate the statutory damages. Neither Tenenbaum nor Thomas ever showed proof of actual damages.
2) Continuing in the same paragraph:
Suffice it to say, however, that in 40,000 cases and counting, these plaintiffs have never been able to find or prove any such “distribution”.2
So while there exists a purely theoretical possibility that plaintiffs will be able to prove that Joel Tenenbaum was some sort of “distributor” of MP3 files, if all they ever prove is downloading, then they are seeking multiples of more than 2,100 to 425,000, which would clearly be unconstitutional under any standard.
This is not true. In the Thomas-Rasset case, the MediaSentry evidence showed distribution, and was not excluded (whether it should have been is a different question). In the Tenenbaum case, he admitted distribution under oath. Thus, in both cases, plaintiffs explicitly proved distribution:
"Mr. Tenenbaum, on the stand now, are you now admitting liability for downloading and distributing all 30 sound recordings that are at issue and listed on Exhibits 55 and 56 of the exhibits?" Answer: "Yes."
So, returning to your earlier point, the actual damages for infringement of the distribution right are "no doubt" greater than 35 cents.
Your remaining arguments address the disparity between the 35 cents damages and the $750-$150k per work statutory damages. However, as shown above, you admit that actual damages for infringement of distribution rights are greater. How much greater? Michael Jackson purchased the distribution rights to 200 Beatles songs for $47 million. $235,000 per work is significantly higher than the statute allows, but let's consider that an upper limit for a fair market value. Statutory damages in the range of half actual damages certainly don't seem out of line under Gore or State Farm.
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.
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I applaud your reasoning. And while it might not be popular here to say, I think you're absolutely right. In so far as the law works at this time, distributing new copies of a work of art fundamentally infringes the rights of the rights-holder.
The rights-holder is out a lot more than just the price of the single distribution. The market might well bear $5/song if it were enforceable, and there were not free alternatives available due to theft. Thus, the rights holders have had to lower their prices to a
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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?
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In the US there is no single definition. It is VAUGE to say the least and varies greatly on jurisdiction. Some places require a physical copy to be transferred (bits on a hard drive may or may not c
Re:New Trial? Whatever Happened to Due Process? (Score:4, Insightful)
Ray's point was that you are using YOUR definition of the word distribution. THE WORD IS NOT DEFINED. I have been trying to find a concrete legal definition for the word for ten years. (I write software for a living and have an intrinsic interest in what defines "distribution" of my copyrighted software.)
Agreed, it's not defined in the statute. However, federal case law has established a definition for distribution - the one I quoted above from Nimmer.
Nonetheless, yes, I agree - there are certainly arguments in that area, and "distribution" should be explicitly defined in the statute. However, the fact that it isn't doesn't suddenly make infringement impossible - instead, judges must apply precedent as well as secondary sources to determine a definition. I will point out that neither Tenenbaum nor Thomas argued the definition of "distribution".
Currently in at least one jurisdiction distribution includes a computer transferring a programs executable data into ram.
Fortunately, on this one at least, Congress has stepped in and expressly stated that that is not copyright infringement (after MAI Systems Corp., Congress amended 17 USC 117).
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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 ha
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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 "
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I've wondered about this myself and have asked a lawyer about it, my understanding is that (as stated on the Wiki page below) the Fifth Amendment only applies to criminal cases (not civil, hence allowing a civil case after criminal case, e.g. O.J. Simpson). Even in criminal cases, again my understanding is that the limitation only applies to a particular sovereign (?), i.e. you could be found not guilty of a crime in state court, but still stand trial for that in federal court. Further, re trying the same c
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The Constitution most certainly counts in civil cases. The Fifth Amendment doesn't -- it only addresses abuses in criminal cases. (Remember, most of the Bill of Rights were instituted to protect against over-reach by a central government, not protect against fellow citizens.) There are common-law protections against repeated trials in civil court, with penalties that can attach in cases of abuse.
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Wrong. It does and it doesn't. There's some aspects of the Constitution which apply in full force (with changes in procedure that alter the nature of the BoR's impact on things...) and some things that don't.
For example:
A civil asset seizure, if not properly done under a valid Warrant is a violation of the Fourth Amendment- just as if it were a criminal one. If the assets so seized are not immediately remanded, it's a Fifth Amendment violation (Unlawful Takings...). Any Civil discovery or Criminal evide
This will multiply to other industries (Score:3, Interesting)
Re:This will multiply to other industries (Score:5, Insightful)
I pity the independent singer songwriter or now author who is blamed as part of the economic ecosystem of this mess. They may have a stigma attached to them they cannot shake and cannot grow beyond.
Why would/should independent artists be blamed? The blame lies totally with those who signed up as members of RIAA.
Wait, you check to see if a singer is in the RIAA? (Score:5, Insightful)
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Who checks to see if an artist is in the RIAA BEFORE they buy a song or CD?
Anybody who cares that much?
much like all bankers are "fat cats ripping us off", all singers and authors are just money grubbing self important prima donas because I read where they sue unemployed mothers living in Harlem with insecure wireless access points
Everyone knows who the bad guys are here. It’s not the artists. It’s the RIAA.
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I always check first, via riaaradar.com. If the artist is represented by the RIAA, then I don't buy the CD, I don't buy the song on iTunes, nor do I pirate it, either. There are plenty of non-RIAA artists to lavish my limited funds on.
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If not, I don't know why anyone wasted their mod points on him.
That is exactly what I meant (Score:2)
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This is publisher choice. The issue is that with a hardback, one is getting a product that more valuable, in the eyes of many people, than a paperback. Even now I will seek out hardbacks for used books. The question is what is the value of an eBook over a paperback? Why should one sell for $15 and the other sell for $
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?
Re:Vindictive much? (Score:4, Insightful)
Actually, I think it's about keeping it in the media. If they can keep up the regular news about such extortionate awards in the media, they're probably hoping it'll continue to act as a deterrent to people.
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
Making an error on appeal? Think simple. (Score:4, Insightful)
They're going for harassment and want to make an example of this person by tying up life, finances, and emotional health as long and deeply as possible. If they could get an execution somehow they would, but they'll settle for lawsuits for the rest of natural life to prevent things like, oh, personal property and/or basic health from taking hold ever again.
Rip 'is 'art 'apart!
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Not all abusive or punitive lawsuits are SLAPPs. Read the Wikipedia article you linked -- the core of a SLAPP is using the legal system to stop or chill public criticism. What part of Jammie Thomas-Rasset's alleged tort qualifies as public participation or criticism?
Repeating themselves (Score:3)
They're starting to sound like a broken record now.
I'll get my coat
In other news, the Saints appeal their Bowl Win... (Score:5, Funny)
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Toyota, having achieved their goal of becoming the world's largest car company, appealed their win to the court of public opinion by recalling millions of vehicles. There was no hope of becoming larger than themselves, so the only downside was possibly becoming smaller. "We need this appeal to keep our name in the public spotlight," unexplained an anonymous spokesman.
I don't condone what the RIAA does (Score:4, Insightful)
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Why so? If that $8.30 represents the number of songs he downloaded instead of paying for then that is, at maximum, a fair representation of their actual loss (of course, their actual loss could be said to be less if he can prove he wouldn't have paid for the song and only downloaded it because it was free).
I think what you mean is it's disingeuous to infer that is their total loss, since there is also the possibility that they lost the potential for sales to other people who downloaded from him (which again
Re:I don't condone what the RIAA does (Score:5, Informative)
But there's another right that was infringed, the right to distribute, for which Thomas-Rasset was independently found liable. And distribution rights are much more expensive
First of all, nobody proved she was distributing the songs. They made up the bogus notion of “making available” to get around it.
Nope, that was the first trial. The judge fixed the jury instructions and removed "making available", and the jury found her liable in the second trial.
Secondly, Thomas wasn’t acting on her own. She was part of a massive file-sharing network.
Can you quote a line from the statute where that makes a difference? It's 17 USC 501 [cornell.edu] and up, if that helps.
People didn’t download the files from her, they downloaded the files from the file sharing network and there is a possibility that she participated in making the files available on that network.
Nope - the RIAA's evidence included direct downloads from her. Bear in mind that she was on Limewire, not Bittorrent.
Since the files would have still been available for distribution on the network if she had not been sharing them, it is absurd to think that she, on her own, caused $x in damages for distribution, where $x would be the amount it would cost to become a legal distributor of the songs.
Ah, but she did. Consider, as I pointed out above, Apple paying large amounts of royalties to become a legal distributor, even though those songs are already available at record stores. Since they already were available for distribution, would Apple not be liable for those royalties if they suddenly refused to pay?
Divide up $x amongst the millions of people in the network, or just the hundreds or thousands who are sharing that particular song, and each person doesn’t really cause much damage on their own. Singling one out is just finding a scapegoat.
There's no requirement of joint or several liability in the statute. This was intentional - if I make one copy of something and give it to you, and you make one copy and give it to a friend, and they make one copy and give it to someone else, etc., would the copyright owner have to file millions of individual suits? And could they even, when the costs for a single suit may be thousands of dollars? No, Congress explicitly considered this when they put in statutory damages - the copyright owner isn't required to go after everyone, and the damages are sufficiently high that the costs of a suit aren't a deterrent to a legitimate copyright owner who wants to protect their rights.
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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
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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.
Nope - second part is where you're wrong, and the court actually looked at it both in the Thomas case and in the currently pending Tenenbaum case. First, that the agent is authorized to make a copy doesn't create an authorization in the distributor. If I buy a copy of a CD and have the right to format shift it to MP3, that doesn't give you the right to shift your copy to MP3 and then distribute it to me. I have not engaged in copyright infringement, but you still have. Second, the courts noted that finding
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Nope - although searching runs over a peer-to-peer network, file transfers are in the form of single server-single client
You’re just plain wrong. When you search for a file in Limewire, it shows how many people are hosting the file, and when you download the file, it connects to all of the hosts it knows of and downloads from as many as possible to increase the transfer speed. It shows how many people you’re downloading from.
Limewire is now bittorrent compatible, but wasn't at the time Thomas-Rasset was using it. Does that change your analysis?
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Also, can you access this description?
Yes, and note Figure 2.1.12, Searching in Gnutella [kent.edu]:
Client A wants data and floods the network with a query for that data.
Hosts C and D respond that they have this data.
Client A then sends data requests to both hosts C and D to download part of the data from each of the hosts.
As I described, your client will connect to as many sources as possible to get you the best download speed. The reason for this is that most internet connections have much slower upload speeds than download speeds. If you can download a
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Re:I don't condone what the RIAA does (Score:5, Informative)
1. Wholesale price=70 cents
2. Expenses=35 cents.
3. ???????????
4. Profit!!!!!!!!!! [35 cents]
(That's assuming every single unauthorized download = a lost sale, which is obviously not the case. See, e.g. USA v. Dove [blogspot.com].
My patience would be thin. (Score:3, Insightful)
So this is what, the third trial?
At this point, since my life would be financially over, I'd consider some other options. Options that, while not monetarily or legally beneficial, ones that would be immensely emotionally cathartic.
Re:My patience would be thin. (Score:4, Insightful)
Note to
As someone who was a victim of a frivilous lawsuit (Score:5, Insightful)
Limited? (Score:2)
As far as I understand, the judge has found that as a matter of law they can not claim more than 54,000$. I would think that they could either accept this decision or appeal it as a matter of law. What good is the new trial going to do? Will they have to go through another full trial, only for the RIAA to dispute the jury instructions and demand another new trial? Surely that judge isn't the prime authority on the law and this must sooner or later reach the Supreme Court? Or did the RIAA pass up the possibi
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What good is the new trial going to do?
Firstly, I doubt that Jammie would ever have had 2.odd million dollars to give to the RIAA. $54k she might be able to manage eventually. However you forget that this was never about the MONEY. It was about deterring "piracy". Therefore they are going to milk this for all the publicity and all the headlines they can get. Jammie Thomas is just an excuse, and the money is irrelevant. So long as they can scare pimply 13 year olds (or the parents of pi
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RIAA has lawyers on retainer. J. Thomas has to pay for them.
RIAA is attempting to financially destroy Ms. Thomas permanently and irretrievably.
It's stopped being about RIAA trying to extract any money from this case, and switched to them trying to make an example by bludgeoning Thomas with lawyers until she either declares bankruptcy or commits suicide. Faced with the overwhelming legal force that RIAA represents, they are probably hoping that other pirates will just cough up the few thousand dollars they
Re:Limited? (Score:4, Interesting)
As far as I understand, the judge has found that as a matter of law they can not claim more than 54,000$
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.
They're getting the money out of Jammie somehow (Score:2)
They're probably just trying to cause Jammie to incur as much legal fees, stress and inconvenience as possible.
I really hope the new judge comes down hard on them for subverting the legal system and just being jerks.
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.
do you have to pay court fees if you get sued? (Score:2)
do you have to pay court fees if you get sued? and how about after time 2-3+ you just go to court on your own and say to the court this is the 3rd time and I can only be on by own and move to get case voided as you can pay to defend your self.
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:Question for NYCL (Score:5, Informative)
Does the idea of double jeopardy apply in civil law?
Yes, though slightly different - it's called judicial estoppel, and essentially means that your previous losing judgement is precedent for your later suit.
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.
Nope. The RIAA won both of the previous trials. In the first one, the jury found Thomas liable, and awarded $222k. She appealed, and got a new trial due to a jury instruction error. In the second trial, the RIAA won again, and the jury awarded them $1.9 million (ooops). The judge reduced the award to $54k and gave the RIAA the option of either accepting the $54k, or returning to trial. At this trial, it will just be on damages, so it should go faster. But the second and third trials aren't the result of any sort of frivolous litigation by the RIAA, even if the first one was.
The other side of the story (Score:3, Informative)
Mules, long noted for stubbornness, would seem to have nothing on either the music labels or Jammie Thomas-Rasset. Both sides have dug in deep and are prepared, almost unbelievably, to have a third trial on the question of whether Thomas-Rasset was a dirty P2P pirate... and of what she should pay if she was.
At the second trial, in 2009, Thomas-Rasset was again found liable, but the jury this time fined her $1.92 million. Last week, federal judge Michael Davis decided that this was "monstrous" in its disproportionality and slashed the damages to $54,000. The recording industry could either accept his decision or request a third trial.
The RIAA then sent a letter to Thomas-Rasset's lawyers with an alternate offer. Thomas-Rasset could settle for only $25,000 ("We are willing to negotiate a payment schedule for this sum," said a copy of the letter seen by Ars), and she wouldn't even need to pay the labels--all cash could go to a charity benefiting musicians. The entire settlement would be conditioned on the judge vacating his recent remittitur order.
"We do not believe embarking on a third trial is in anyone's interest," said the letter. "Continuing to use scarce judicial resources as well as spend our respective clients' time and money strikes as unwise and pointless."
It does not strike Thomas-Rasset that way. While the RIAA asked for an answer by Friday, January 29, Thomas-Rasset's lawyers have already responded: no deal.
I checked in with Kiwi Camara, one of Thomas-Rasset's lawyers. who confirmed that the settlement was ruled out. He added that Thomas-Rasset would likewise rule out any settlement asking her to pay damages, and that the Camara & Sibley law firm was ready to represent her pro bono once more.
It's hard to see how this will play out, but a few things are clear: Judge Davis, despite strong criticism of the damage award, had no kind words for Thomas-Rasset. He noted that "ThomasRasset's refusal to accept responsibility for her actions and her decision to concoct a new theory of the infringement casting possible blame on her children and exboyfriend for her actions demonstrate a refusal to accept responsibility and raise the need for strong deterrence." The judge even concluded that she "lied on the witness stand by denying responsibility for her infringing acts and, instead, blamed others, including her children, for her actions."
Given the facts in the case, which after two trials don't appear to be in dispute, it's hard to see how Thomas-Rasset hopes to prevail without paying a dime, but that appears to be the plan.
If she had been willing to pay something, she would have done so long ago, when the RIAA offered her a settlement of a few thousand dollars. Instead, Thomas-Rasset has spent years of her life working with two law firms on two federal trials, and she's willing to risk a third.
The stubbornness isn't just on one side of the aisle, however. The RIAA is completely unwilling to abide Judge Davis' ruling that the jury's damage award was excessive. Accepting the ruling would set an unacceptable precedent for judges to alter jury awards in copyright cases at their whim. It's not the amount, but the principle--something shown by the fact that the trade group is willing to drop roughly a bazillion dollars more on the Denver law firm that has been prosecuting the case in order to do it all again. In addition, conversations with industry lawyers and executives over the years have also revealed a strong sense that Thomas-Rasset needs to take responsibility and pay something; there's a very real sense that, apart from issue of statutory damage law, Thomas-Rasset is thumbing her nose at the industry and hoping to get away with no penalty.
Thus--a third trial.
Thomas-Rasset vows to pay nothing, so third trial inevitable [arstechnica.com] [Jan 28]
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.".
What is distribution (Score:4, Insightful)
1.dissemination of copies to the public
2. by sale or other transfer of ownership, or a rental, lease or lending.
17 USC 106(3) [findlaw.com]. The RIAA has never proved, and probably could never prove, a distribution in any of these end user cases.
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Agreed. Throw the bums out, throw their lawsuit out, give them no damages, and put contempt of court charges on the lot for wasting the court’s time.
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I assume that Jamie would be protected from that under the double jeopardy statutes.
You assume wrong. Double jeopardy protection doesn’t apply to civil cases.
I think it's not uncommon in large civil lawsuits with huge damage assessments for the the company that's paying out to bring two or more additional trials about the damages
The company that keeps brining additional trials isn’t paying out. They’re receiving the settlement. They won. They’re just bringing additional trials to harass the defendant and force her to go bankrupt fighting these repeated cases.
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Wait, what? It CALMS you that reality tops even your brain, ladden with horror scenarious as it is? That actually makes you feel better?
Man, please tell me what you're taking, because I want some, too!