Testimony Wraps In RIAA Trial

Eskimo Joe writes "A federal judge surprised observers in the Captiol v Thomas file-sharing trial yesterday by barring RIAA president Cary Sherman from testifying. 'After a brief recess this afternoon, plaintiffs' counsel Richard Gabriel and defendant's counsel David Toder made their cases before the judge as to the relevance of Sherman's testimony. Toder argued that Sherman's testimony was not relevant to the question at hand, the fact of whether Thomas was liable for copyright infringement. Gabriel said that Sherman would be able to tell the jury why this case was significant, and more importantly, describe the harm the RIAA believes piracy has caused to the music industry. "I don't want to turn this case into a soap box for the recording industry," Toder argued in response.' Testimony wrapped up today [Wednesday] with closing arguments expected Thursday morning." Ars has up a summary, filed a few hours earlier, of other testimony in the trial. The jury could come back with a verdict later today.

ummmm Tasty...

This whole seemingly systematic smackdown being applied by the judicial system to the RIAA on what looks like multiple fronts is really getting close to making me have faith in our judicial system again... almost.

Re:ummmm Tasty...

getting close to making me have faith in our judicial system again... almost.

And they're finally starting to look into the Gitmo Habeas Corpus thing. It's almost like the courts are remembering it's their job to respect the rule of law...

Don't get your hopes up

Don't get too excited.

Reading over the summary of testimony at Ars Technica, they have Jammie Thomas dead to rights. The fact is, she was downloading and sharing music over Kazaa, and unless the jury is made up of idiots, they're going to find for the R

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Actually no it appears she owns most of the music she was sharing. So she was ripping, and possibly sharing those rips on Kazaa. Of course the RIAA has always been more concerned with the sharers than the downloaders anyways. Just wanted to correct you on

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If an attorney calls for jury nullification, the judge can have him jailed for contempt of court.

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The fact is, she was downloading and sharing music over Kazaa

Of course she was. The majority of the people that have been sued did, in all likelihood, download what the RIAA claims they did (or at the very least someone they allowed to use their internet connection was, such as their children).

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This was one of the least of her worries.

She used an e-mail address that is the same e-mail address that she used for her screen name on a bunch of other sites. (Even match.com, which had her profile that was shown in court.) She also had one and only

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Mod me troll, Jury came up w/ 222,000 for 24 songs or 9250 per song.

Uncertain either way

Ars has had really good coverage [arstechnica.com] on the whole trial -- one of their reporters has been there the whole time. I think there are a couple of things to keep in mind:

1) We don't know how it's going to turn out. I think the RIAA has actually done the best job they could do to present their case. They have strong circumstantial evidence that this particular defendant uses the Kazaa user name in question, and that she was likely the only person using the computer. The standard in a civil case is proof by a preponderance of the evidence. That is to say, that it's more likely than not that she did what is claimed. It doesn't have to be lock solid, or beyond a reasonable doubt. On the flip side, the defense has also done an excellent job controlling who gets to testify, and appears to have argued for good jury instructions. The most important thing to come from this case may well be the "making available" jury instruction, as that will likely be a major issue for future cases.

2) This is going to be appealed. If the defendant wins, the RIAA will appeal. They have to. If the RIAA wins, I imagine the defendant will appeal so long as she can afford it. As likely, both sides will have parts of the ruling that they're unhappy with, and they will cross-appeal. This decision won't end the case.

It's a very interesting and important case. I look forward to more developments.

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It's a very interesting and important case. I look forward to more developments.

I really don't want this to be the case that the community rallys around, because she clearly (in my mind) did what is claimed. I think this is a slam-dunk for a civil trial

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I really don't want this to be the case that the community rallys around, because she clearly (in my mind) did what is claimed. I think this is a slam-dunk for a civil trial and I'd say it would have a pretty good chance even for criminal (if that were the case).

Yeah, I tend to agree from the evidence I've heard, but the jury instruction is what is really important to me. The best outcome might even be that the judge refuses to give the "making available" jury instruction. The RIAA wins the case, and then neit

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Not really.

They've only established that they could personally commit an act of computer
tresspass and take files off of her machine. They have not established that
anyone else ever downloaded anything from her. They have not established that
she pirated the

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They've only established that they could personally commit an act of computer tresspass and take files off of her machine.

I don't think it would be considered trespassing if it's on a kazaa share. That sounds like people griping because you 'steal' inf

Verdict is in: Guilty, $220,000 in damages

http://arstechnica.com/news.ars/post/20071004-verdict-is-in.html [arstechnica.com]

fter just four hours of deliberation and two days of testimony, a jury found that Jammie Thomas was liable for infringing the record labels' copyrights on all 24 the 24 recordings at issue in

Re:Uncertain either way

Even if the RIAA wins, they will have to prove damages. That's another game entirely.

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Even if the RIAA wins, they will have to prove damages. That's another game entirely.

I assume they would elect to take statutory damages [cornell.edu].

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It would be an interesting precedent.. but..

(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a

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She wasn't making any money from the sharing, and technically speaking, her leaving the p2p app open could be construed as "public broadcasting" of the music, since she didn't have any prejudice when it came to who she shared with.

I'm not sure where we are

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Ordinarily I just get annoyed with people who fail to read the definitions of words in the law, instead substituting their own fantasy definitions to make themselves feel unjustifiably good about themselves.

You, I'm going to go a bit further and call you a

Re:What are the limits on "making available"?

The most important thing to come from this case may well be the "making available" jury instruction, as that will likely be a major issue for future cases.

If the defense doesn't succeed and "making available" becomes the standard for prosecution, I'm wondering what the limits will be.

I have a USB memory key that fits into an MP3 player [everythingusb.com]. Back when MP3 players (and flash memory) were more expensive, I was able to buy the player for about $25 and use the 1GB memory key I already had.

I ripped a few albums onto the memory key and would listen to them on the plane when I was traveling. At a relatively low bit-rate, the MP3s took up very little space, so I just left them there as I used the memory key for moving data files to and from the clients I was working with.

At one point, I gave the memory key to a client to transfer a file. He took a long time to do it, so I checked back to see if something was wrong. I found him adding all my MP3's to his collection. I politely asked him to delete the files, and subsequently deleted the MP3's off my memory key.

So, did I "make [those files] available" to him by giving him a memory key that happened to have the files on it?

Re:What are the limits on "making available"?

So, did I "make [those files] available" to him by giving him a memory key that happened to have the files on it?

Yes you did. We'll be contacting you soon.

- The RIAA

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You "politely asked him to delete the files?"

I imagine he looked at you like you were from another planet, and politely told you where you could put that memory stick. Or at least, I hope he did. What harm does that do to you?

How much harm exactly?

Gabriel said that Sherman would be able to tell the jury why this case was significant, and more importantly, describe the harm the RIAA believes piracy has caused to the music industry.

A. It is important to them because it may mean the end of them using shotgun tactics (hope to hit someone) to try and curb piracy.

B. It is important to him because they pay what I assume is a substantial salary to him, and he will not look good to the media companies backing him if revenue drops even further because they don't have money coming in from lawsuit settlements

C. They "believe" the piracy has caused harm. I've yet to see credible evidence that is has (at least using realistic numbers, instead of their inflated ones, plus I don't even really know if piracy is any worse than the tape swapping days). I believe that their methods have caused the Consumer and Taxpayers harm. Does that mean I can testify?

The lawyer was exactly right, as was the judge. It was not relevant to the question at hand, it would have been emotional rather than factual, and it would make the case an even bigger circus and soapbox. Plus, I want it to be our soapbox where we expose the RIAA for the slimy weasels they are.

Oh, and I don't like the RIAA, in case I hadn't made it clear yet.

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> C: Do you really need to see credible evidence - yourself, outside of a court -
> that indicates piracy/copyright infr/sharing has increased since the CD came into popular use?

HELL Yes.

Music pirates are "buying for zero cost". So issues of "quality"

He shouldn't had to try.

The RIAA already had anti-pirating laws voted, so why would he have to testify that pirating is bad?
Probable answer: because thet cannot prove the guilt of the defendant so they tried to move the trial away from the determination of the truth.

There's a place for such testimony

It's called a victim impact statement. http://en.wikipedia.org/wiki/Victim_impact_statement [wikipedia.org] It gives victims of violent crime the opportunity to let the court know how they were affected by the crime. It is given at sentencing after the verdict has been reached.

Letting the suit spout before the verdict is delivered (in a case that didn't involve violence) would be an abuse of process but hey this is the RIAA. The judge did the right thing. My guess is that if the testimony had been allowed, the resulting appeal would have been successful.

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You do realize this is a civil suit and not a criminal case? Victim impact statements are used in criminal cases and the laws that create them are intended to give the victim a chance to speak and be heard - which is important because they're not a party t

WTF?

From TFA:

When the first CD was done, she announced the time as 2:36.18. Gabriel immediately objected saying that they timed it at over four minutes. The apparently-amused judge said that the jurors could figure out the time for themselves. The second CD ripped in 2:17.71 according to the defendant's timing (I timed the second demonstration in 2:18.97). Gabriel again objected, saying that he had it at three-and-a-half minutes.

My theory is that one lawyer is 'spinning' the truth alot faster than the other. Therefor resulting in the major difference in elapsed time.

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Hey, the RIAA clearly has different concepts of enumerating CD drives and the value of copies of individual songs than everyone else, why should we expect them to have a grasp of time that is grounded in reality either? The discrepancy is about 1m20 in bo

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My favorite part about that was this exchange:

"Is it still your testimony that the music on the defendant's computer was copied from a hard drive?" asked Toder. "Given new versions of software, you could rip this fast," conceded Jacobson.

Would newer, more bloated ripping software have any chance of ripping faster? Are there any newer, enhanced "ripping technologies" that they didn't have in earlier versions of WMP, iTunes, etc.? I know th

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The second CD ripped in 2:17.71 according to the defendant's timing (I timed the second demonstration in 2:18.97). Gabriel again objected, saying that he had it at three-and-a-half minutes.

I would assume that Mr Gabriel is using the same clock that uses for billing his clients as that would account for the time differences.

Good for Cary Sherman

The judge probably saved him from perjury.

A (semi) Contrarian View

While I loathe the recording industry and hope they lose this case, I believe it may have been a tactical error on the part of the defense to object to this particular witness. Once on the stand, and after spouting of about damages to the industry as a wh

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And since the subject matter of the whole industry had been brought up by the plaintiffs, the defense would be free to ask about the industry as a whole - for instance, what is the industrywide average revenue earned by individual artists on a CD sale? Wh

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"None of which have any relevance to the matter of the trial, which is whether she did or did not install Kazaa and thus share music with others on the internet. All that would have to happen is that the RIAA attorney would argue that the questions are irr

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It would be a useful tactic if the jury knew about Jury Nullification. As it stands, it seems unlikely that they do. When they're told to go back and decide whether a law was broken, they're going to be told that they have to determine if the defendant b

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No, there would have been no useful testimony extracted by the defense. Sherman is not an expert in the accounting systems, financial records, or contractual agreements of the member corporations. None of that would be information he could be expected to k

Is it really better?

I am split on whether it would be better or worse for the defense to have Mr. Sherman on the stand. I mean, my legal experience is more-or-less limited to doing Mock Trial in high school, but even I can think of ways to absolutely shred Mr. Sherman on cross. Surely during direct the counsel for plaintiff would simply open the door for him to preach and then get out of the way. Mr. Sherman's rant would probably include the old favorites, like "Internet piracy is to the music industry what the Boston Strangler is to women" etc.

So on cross you take it all apart:

• You base your claims of harm from piracy on empirical research, correct?
• So surely you know that there have been many impartial studies that show piracy is not, in fact, harming the music industry?
• (Sherman gets evasive. Will witness please answer the question, yes or no. He opts for what he sees as the lesser of two evils and says No.)
• Oh, you don't know that? Given that your responsibilities as RIAA president involve making statements to the public that can affect the share price of RIAA member companies, wouldn't it be your job to be aware of all the available research?
• (Sherman gets evasive again. Will witness please answer the question, yes or no. It doesn't matter which way he answers. If he says No, then we get to explore why he ignores scholarly research on the subject. If he says Yes, then we also get to explore why he ignores scholarly research on the subject.)

At that point, you've got him by the balls and can play it any way you like. I suppose Mr. Toder may not feel up to the task of going head-to-head with Mr. Sherman. Or maybe there is some calculation of legal risk that I am not seeing, e.g., Mr. Toder already feels like his case is in great standing, but I don't perceive that as an outside observer. I would have preferred to see all the RIAA bull trotted out and slaughtered in front of the jury.

It's irrelevant.

The question is not, "Should file sharing be ethical or legal" but "Did the defendant systematically violate the copyrights owned by the plaintiff?"

The law states that file sharing is copyright infringement. If they can prove she did it, or very probably did it, she's liable. That's all there is to it. The RIAA has a bunch of IP address data, and some username stuff, but they habeus no corpus because of a conveniently dead hard drive. The defendant is claiming that their data collection methods are shoddy, that the IP data is inconclusive, and that there is, in effect, no proof of infringement.

The whole trial (it being a civil trial) will come down to who the jury likes more.

Arguing the constitutionality of copyrights applied to music, etc, would have to go to the Supremes, which would involve a case where someone actually admits to doing the filesharing, and argues that it's a constitutional right, and that the laws against it should be ruled unconstitutional. Since admitting to doing the sharing is silly since you're far more likely to get off by denying it, no one (to my knowledge) has yet tried this method.

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> The law states that file sharing is copyright infringement.

Yes. For that to be the case the file actually has to be shared.

This isn't some pirate BBS we're talking about here where there
is a Banner message that says "come one come all, take what you
li

Suing your customers

From a related article: http://arstechnica.com/news.ars/post/20071003-defendants-counsel-hammers-away-at-piracy-picture-painted-by-riaa.html [arstechnica.com]

During his cross-examination of Geek Squad member Ryan Maki, Toder was able to use Best Buy's sales history of Toder to show that she was an avid music fan that bought a lot of music from the store, both before and after February 2005. "Best Buy's records show that she bought hundreds of CDs before February 2005, did she not?" asked Toder.

"There are quite a few CDs and DVDs purchased," replied Maki. "She's a good customer."

Way to drop the legal hammer on one of your best customers.

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How does telling the jury "she probably rightfully owns
every music file on her computer" "lay the legal hammer"
on anyone?

That establishes proper custody of the music that they are
claiming she's "sharing". It takes the "download" part out
of their claims tha

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Um, he's helping her, not dropping the hammer on her. The fact that she has bought hundreds of CDs from Best Buy corroborates her testimony that the files on her replacment disk drive are ripped from CDs she already owns, not pirated from the 'net.

Makes RIAA Look Greedy

It just makes the RIAA look like greedy "evil businessmen" and can sway the jury a bit. It would be one thing if she hadn't bought all kinds of CDs, but she did.

Jury could well feel that "hey, they made their money off her already." Combined with their p

More on the moronic plantiff's "expert"

From an article [arstechnica.com]:

Once cross-examination began, Toder started asking Jacobson about things such as MAC address spoofing, cracking, P2P pollution, and multipeer contamination, intimating that one of those things could have been in play when Media Sentry detected the shared folder at the IP address in question. He then questioned Jacobson about his assertion that the music currently on Thomas' computer had to have come from a hard drive and announced that he wanted to demonstrate to the jury that it was possible to rip CDs as quickly as the timestamps from the forensic examination showed (the timestamps were approximately 15-20 seconds apart with a longer 30- to 45-second gap between CDs).

This would tend to prove that the CDs were ripped, and not copied from another hard drive. 15-20 seconds? If they are normal 128kbit MP3 quality, the files are around 5 megabytes. If your hard drive can only copy at 300 kilobytes per second, you need another hard drive. Also that wouldn't account for the extended gap between CDs. If she was copying files from another hard drive, there should be no extra gap. The expert said that speed of ripping wasn't possible, so the defense went on to demonstrate the ripping of a CD and timed it. They came up with 2:36.18, the plaintiff's attorney objected saying it was over 4 minutes. He ripped another coming up with 2:17.71 (the reporter timed this one too and got 2:18.97), and the plaintiff's attorney objected again saying it was over 3 and a half minutes. I hope the jury "got" this. If an "expert" f-ed up this badly, I would disregard everything he said on the stand as unreliable.

Re:Typo

Yeah, I don't think anyone would have figured that out minus your help. Thanks.

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Whoever it is, it sure looks like they are about to lose.

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Sadly, according to the update at the end of the Ars Technica article (see http://arstechnica.com/news.ars/post/20071004-debate-over-making-available-jury-instruction-as-capitol-v-thomas-wraps-up.html [arstechnica.com] [arstechnica.com]), the "making available" argument will be provided to the jury. This is sad, because the "making available" argument has no basis in law except when a person is actively promoting infringement (see the Grokster case). There's no proof Jammie ever encouraged infringement. Here's hoping that Jammie prevails!!! Regards, Art

I guess that's why they wanted to go to war in Duluth. They knew they couldn't convince a Manhattan judge to buy into that nonsense, but hoped they might get a midwestern judge, with less copyright law experience, to fall for it. What a shame. And probabl

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Certainly. Send checks to her lawyers, earmarked for the Virgin v. Thomas case. Here is her lawyer's information:

Toder, Brian N., Chestnut & Cambronne, P.A. 204 North Star Bank 4661 Highway 61 White Bear Lake, MN 55110

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I tell you what, I'll race you, I'll go to imeem.com and search for music by say.... Peanut Butter Wolf, and at the same time you go on p2p and look for the same. I'll wager I'll be finished listening to her latest single before your download even start