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RIAA Insists On 3rd Trial In Thomas Case 280

Posted by samzenpus
from the if-at-first-you-don't-succeed dept.
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."
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RIAA Insists On 3rd Trial In Thomas Case

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  • by poena.dare (306891) on Thursday February 11, 2010 @08:59AM (#31098392)

    "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.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      Best. First. Post. EVER.

    • by hey! (33014) on Thursday February 11, 2010 @09:23AM (#31098546) Homepage Journal

      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.

      • Re: (Score:3, Insightful)

        by ircmaxell (1117387)
        I wonder if this would open up "harassment" as a defense... Considering that they cannot gain any result that's greater than what already was awarded, this third trial could only be seen as an attempt to get the defendant to settle (And thereby agree not to appeal)... If only civil law had the no double jeopardy clause...
        • by Entrope (68843)

          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.

    • by argent (18001) <peter@NOspam.slashdot.2006.taronga.com> on Thursday February 11, 2010 @09:34AM (#31098640) Homepage Journal

      Unfortunately, as it turned out, Microsoft's horse was only mostly dead.

      • by icannotthinkofaname (1480543) on Thursday February 11, 2010 @09:52AM (#31098826) Journal

        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.

        • 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!
          • Re: (Score:3, Funny)

            by argent (18001)

            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)

      by leomekenkamp (566309) on Thursday February 11, 2010 @09:43AM (#31098732)
      That horse is not dead. It's sleeping.
    • by sznupi (719324)

      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?

    • Mod it insightful or something so the poster gets some Karma. This was too good, and more than just funny.
  • by eldavojohn (898314) * <[moc.liamg] [ta] [nhojovadle]> on Thursday February 11, 2010 @09:01AM (#31098400) Journal
    So their filing says:

    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.

    • by MartinSchou (1360093) on Thursday February 11, 2010 @09:16AM (#31098500)

      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 .

      • Re: (Score:3, Funny)

        by neoform (551705)

        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 .

        Whew, the system works.

      • by Rogerborg (306625) on Thursday February 11, 2010 @10:50AM (#31099488) Homepage
        Bear in mind that they're up against Kiwi Camara, hotshot pro-bona wunderkind, whose primary interest (at this point in his career) is in making a name for himself by tilting at windmills. You want proof? His other client is Psystar. Neither side (and I mean the RIAA vs Camara, not Thomas-Rasset, who is irrelevant at this point) has anything to lose and potentially something to gain by keeping this going indefinitely.
      • 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.

    • by Sockatume (732728) on Thursday February 11, 2010 @09:32AM (#31098614)

      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."

      • Re: (Score:3, Interesting)

        by SharpFang (651121)

        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.

      • by jez9999 (618189)

        Most people don't have the money to send the lawyers back again and again...

        • 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.

      • That depends. $YourLegalTeam > $WalmartLegalTeam ?
    • Re: (Score:2, Funny)

      by sh00z (206503)

      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

      Well, IANAL, but they can't appeal--because they won the case.

    • by Tim C (15259)

      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)

    • by insufflate10mg (1711356) on Thursday February 11, 2010 @10:10AM (#31099056)
      There are many legal avenues that a well-paid legal team can travel down to simply outpace the individual in both resources and time.

      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.
      • by jonaskoelker (922170) <jonaskoelker@gnu. o r g> on Thursday February 11, 2010 @04:34PM (#31104382) Homepage

        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.

    • by TechForensics (944258) on Thursday February 11, 2010 @10:41AM (#31099406) Homepage Journal

      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.

    • by guruevi (827432)

      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

      • 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.

        • 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.
          • 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.

            • by mdarksbane (587589) on Thursday February 11, 2010 @01:30PM (#31101454)

              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: (Score:3, 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. 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.
              • 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?

                • Re: (Score:3, Informative)

                  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.)

                  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
                  • 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).

    • The judge offered the option of a new trial to the plaintiffs when he set aside the jury's verdict. There may be a 7th amendment issue involved.
  • by howardd21 (1001567) on Thursday February 11, 2010 @09:05AM (#31098432) Homepage
    As more content becomes electronically available, such as ebooks, movies, etc this nonsense will proliferate. Even now, as book publishers try to increase the cost of books from 9.99 to 14,99 and higher, or delay release of electronic versions hoping people will buy the hard-copy first and the ebook 6 months later, there are attacks forming on the publishers (read Amazon reviews for ebooks > $9.99 and see the 1 star reviews), and there will be attacks on the technology as piracy takes hold. Everybody is just greedy, the consumers want it for a low cost that never changes, the publishers, the lawyers, etc. 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.
    • by BhaKi (1316335) on Thursday February 11, 2010 @09:13AM (#31098474)

      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.

      • by howardd21 (1001567) on Thursday February 11, 2010 @09:50AM (#31098800) Homepage
        Who checks to see if an artist is in the RIAA BEFORE they buy a song or CD? It is guilt by association, 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. See how that works?
        • by Dan667 (564390)
          It is not that hard to check if music is from an RIAA company before you buy. Go to http://riaaradar.com./ [riaaradar.com.]
        • 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.

        • Re: (Score:3, Informative)

          by autophile (640621)

          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.

      • I believe ( hope ) that the parent was referring to the stigma of "downloading music is bad bad bad!" and not that independent song writers can charge what they want for their products (which may be less than RIAA approved pricing structure).

        If not, I don't know why anyone wasted their mod points on him.
    • by fermion (181285)
      I have no problem if publishers want to play the paperback game with ebooks. Put out the hardcover, then put out the eBook. They may eventually even choose not to put out the paperback.

      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)

    by Pedrito (94783) on Thursday February 11, 2010 @09:06AM (#31098438) Homepage
    ...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."

    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?
  • by aussersterne (212916) on Thursday February 11, 2010 @09:11AM (#31098472) Homepage

    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!

    • by hairyfeet (841228)

      I think the word everyone is searching for here is SLAPP [wikipedia.org]. They are trying to show that it is impossible to fight them, because their incredible warchest means they can just keep dragging you to court over and over and over until you are broken.

      And the sad part? It will work just as they planned it to. They can just keep dragging this out until no lawyer will represent her, and then crush her like a bug. Just another example of how our entire system is completely broken beyond repair.

      • by Entrope (68843)

        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?

  • by iamapizza (1312801) on Thursday February 11, 2010 @09:14AM (#31098476)
    So basically, they're going to court and simply repeating themselves?

    They're starting to sound like a broken record now.

    I'll get my coat
  • by howardd21 (1001567) on Thursday February 11, 2010 @09:17AM (#31098514) Homepage
    The Saints submitted notice to appeal their Super Bowl win, on the grounds that the Colts unfairly bunched up at the line near the end of the first half, forcing a turnover on downs, and causing the Saints to settle for a field goal on a subsequent series. Sean Peyton, coach of the Saints explained that while they could only lose the game due to appeal, and could in no way increase their margin of victory, they hoped that by filing they may increase their chances of a higher pick in next year's draft. Drunken fans in the french quarter cheered the announcement, and said they "waited 43 years for this, why not wait a little longer".
    • Re: (Score:2, Funny)

      by Whalou (721698)
      Can I get this as a car analogy please?
      • Re: (Score:3, Funny)

        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.

  • by hamburgler007 (1420537) on Thursday February 11, 2010 @09:17AM (#31098518)
    But to say that $54,000 is approximately 6500x (ie $8.30) the actual damages is disingenuous at best.
    • You're right. Actual damages would be more like $0.30 per song, which is about what labels make from a "legal" download.
    • Re: (Score:3, Insightful)

      by delinear (991444)

      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

    • The MAXIMUM actual damages for an unauthorized download of any of these mp3 files is AT MOST about 35 cents.

      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].
  • by IndustrialComplex (975015) on Thursday February 11, 2010 @09:20AM (#31098534)

    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.

  • by judolphin (1158895) on Thursday February 11, 2010 @09:26AM (#31098566)
    Goliaths know that whoever has deeper pockets to pay legal expenses for a longer period of time, generally wins lawsuits. Frivolous lawsuits filed by large companies on individuals and small entities are more often than not seen as a war of attrition that they have no way of losing. As someone was once the victim of this, it makes me incredibly angry. I was frivolously sued by a large company. Even though I won the case (basically by showing up and showing the contract vis a vis their allegations), I had to spend a few thousand dollars defending myself (I'm lucky it wasn't tens or hundreds of thousands). They're trying to ruin this individual, and make an example out of him. It's one of the most evil aspects of corporations and is what's most wrong IMO about our legal system.
  • 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

    • by Dunbal (464142) *

      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

    • by natehoy (1608657)

      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)

      by Theaetetus (590071) <theaetetus,slashdot&gmail,com> on Thursday February 11, 2010 @11:15AM (#31099788) Homepage Journal

      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 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)

    by dkleinsc (563838) on Thursday February 11, 2010 @09:36AM (#31098658) Homepage

    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? 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)

      by L4t3r4lu5 (1216702) on Thursday February 11, 2010 @10:28AM (#31099246)

      [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)

      by Theaetetus (590071) <theaetetus,slashdot&gmail,com> on Thursday February 11, 2010 @11:19AM (#31099852) Homepage Journal

      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.

  • by westlake (615356) on Thursday February 11, 2010 @11:20AM (#31099858)

    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]

  • by rnturn (11092) on Thursday February 11, 2010 @12:04PM (#31100488)

    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.".

  • by NewYorkCountryLawyer (912032) * <[ray] [at] [beckermanlegal.com]> on Thursday February 11, 2010 @01:47PM (#31101634) Homepage Journal
    By the way, a distribution requires
    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.

You can do this in a number of ways. IBM chose to do all of them. Why do you find that funny? -- D. Taylor, Computer Science 350

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