Juror From RIAA Trial Speaks

Damon Tog notes a Wired blog posting featuring quotes from a juror who took part in the recent RIAA trial. Some excerpts: "She should have settled out of court for a few thousand dollars... Spoofing? We're thinking, "Oh my God, you got to be kidding."... She lied. There was no defense. Her defense sucked... I think she thought a jury from Duluth would be naive. We're not that stupid up here. I don't know what the f**k she was thinking, to tell you the truth."

So did the jury ...

Her defense sucked...

Apparently, so did the jury...

Re:So did the jury ...

Why? The case was cut n dry, she broke the law and she lost.

The jury's job is to determine if she broke the law, not determine if the law makes sense.

the fine didn't fit the crime

The jury decided the penalty, and it's plain ridiculous.

Let's assume we agree that the defendant was, as this juror said, an obvious liar, and guilty on all counts.
Should she really lose her house or retirement savings over this?

I'm personally against stealing copyrighted music. But this penalty is waaaaay out of proportion to the crime, IMHO.

Re:the fine didn't fit the crime

When I first read about this I though "finally, someone got a jury trial." Then I read about the circumstances and the defense's strategy and immediately realized this was a cut and dry case. She clearly broke the law and didn't take the settlement offered. I personally think she deserves the penalty. If not for her blatant disregard for the law, than at least for setting such a terrible precedent that the RIAA can now use as a bat to beat over other defendants in other court cases.

Re:alas no

Stealing or copyright infringement? It makes a difference!

Re:alas no

> probability states that it would be worthwhile putting one of a thousand guns to your head,
> where only one was loaded, and pulling the trigger if the reward was a million dollers upon survival.

Uh, no. Probability and expectation theory only deals in uniform ideal units. Your example contains two different units: "death" and "dollar". You're confusing probability theory with utility [wikipedia.org] theory here. Or with a combination of probability and utility theory.

E.g., if the person pulling the trigger knows he is sick and most likely will die in great pain within several weeks, I wouldn't think it at all extraordinary for him to take this wager. In his case the utility of death vs. money is different than for others (you, for example, it seems).

And in the downloader's case, in many cases the downloaded product has a higher utility (e.g., no DRM) than the product he can attain legally. And what the relative utility of being sued by RIAA is for him is dependent on what he thinks, not what you think.

Re:alas no

I expect a bittorrent user to be hauled over the coals in the near future.

Happened in Hong Kong a couple of years ago. http://news.bbc.co.uk/1/hi/technology/4374222.stm [bbc.co.uk] The uploader actually went to jail.

Re:alas no

Looking at it from several perspectives. Yes they look guilty. But as stated above. The punishment should fit the crime. Be it this was a civil case not criminal. The same stands. The Jury was obviously pissed off by the defendant and nailed that person on not just fact, but emotion. Just look at the jurors statement! Its pretty obvious. The amount IS ludicrous. At worst the Jury should have only doubled the original settlement. I guess you could say don't piss off the jury, but thats obvious. But in this case, the jury did cross the line. Again, see juror's statement. I've spent a lot of time in the courtroom (not as a defendant). Jury's can unfortunately get to emotional and prejudicial.

There's really few options this person has now.

Re:the fine didn't fit the crime

And that's the jury's fault? The maximum was, according to TFA, $150,000 a song, and the minimum $750. They settled on less than $10,000. The law screwed her over long before the jury became involved (at least on damages; she seems to have screwed herself on the facts of the case and her defense).

Re:the fine didn't fit the crime

And that's the jury's fault?

Yes. every juror has an obligation to understand the concept of "jury nullification". End of story.

Re:the fine didn't fit the crime

Yes. every juror has an obligation to understand the concept of "jury nullification".

Says who?

Even if you had a right to jury nullification (which you don't) the jurors didn't much seem interested in finding for the defendant. The evidence of infringement was overwhelming, the defendant repeatedly lied to avoid a judgment. The jury had the option of fixing penalties at $750 per song. They opted for more than 10x that.

Re:the fine didn't fit the crime

The jury had the option of fixing penalties at $750 per song. They opted for more than 10x that.

On that, I have to agree with you. Though I have to admit, it doesn't do much for my personal opinion of the naivete of Duluthites.



Says who?

Says anyone who understands why we have juries of our peers rather than juries of government-appointed experts, when the latter could incontrovertibly do a much better job of deciding the facts of the case.



Jury nullification, not the USSC or the presidential pardon, represents the final and most effective of the "checks and balances" on government abuse of power.

Re:the fine didn't fit the crime

Jury Nullification [wikipedia.org] refers to a rendering of a not guilty verdict by a trial jury, disagreeing with the instructions by the judge concerning what the law is, or whether such law is applicable to the case, taking into account all of the evidence presented.

You not only have the right to do so, but the civic duty. In this case, being charged thousands of dollars per song she wasn't commercializing is simply ridiculous.

I agree with you in principle, she broke the law and deserves some kind of punishment. The damage inflicted by her, however, doesn't fit the punishment she recieved.

Re:the fine didn't fit the crime

Most jurors probably are not aware of jury nullification, and no judge or prosecutor is going to go out of their way to tell them about it. Imagine: Judge: Instruction number 1: Stealing music is against the law. Please determine the defendant's guilt or innocence. By the way, even though theft is illegal, if you, as a jury, disagree with this law, you have the right to throw it out by means of jury nullification. After all, it was just music. Ok, please go deliberate.

Re:the fine didn't fit the crime

Even if you had a right to jury nullification (which you don't)

Actually, you do, and this is well established in English jurisprudence. William Penn was on trial for preaching Quakerism in the streets. The jury was instructed to convict because he was indeed preaching and it was indeed against the law. The jury refused to convict. The judge sent them back. They still refused. He threw them in jail. They still refused. He put them on bread and water rations. They still refused. Finally he gave up and accepted their acquittal. And ever since then juries have been able to vote according to their conscience rather than the law.

It's also equally well established that you can't tell people about it in the context of a court case (except during jury deliberations). Otherwise you would ALWAYS have lawyers attempting to get the jury to nullify.

Re:the fine didn't fit the crime

One key thing to remember.

If someone comes to kill someone and asks you if you know where they are hiding, it is moral to lie.

If someone asks you if you believe in jury nullification, it is moral to like and say "no" since saying "yes" would get you disqualified from the jury. If you do so, you must use any reason besides jury nullification as your reason for finding the defending "not guilty" or you could face contempt charges. However if you just pick some stupid ass reason and stick to it then you are okay. "I just don't believe that she is guilty-- I can't really say why but i just do not believe it. Just a 'gut' feeling, okay?"

Re:the fine didn't fit the crime

You're missing the reason for the penalty, I think.

If this woman had downloaded 22 songs and been caught, _then_ turned over the right hard drive and not told lies, taken straight to court with no reasonable offer to settle and been honest, then probably either the jury would've decided on the minimum $750/song penalty or refused to convict. Because then all she would have done would be download a few songs and probably share a few back, total money lost maybe $200 even with the price of a single.

However, what she actually did do was obstruct the police and lie a lot (which juries do not like, especially when it's obvious after the fact that the lies were never going to work), then when she had an offer to settle (which was larger than a 'reasonable offer' would be in the previous case, but after the lies it was probably the best option) she rejected it.

So this jury was not going to be some bunch of totally impartial citizens looking at the money lost by the RIAA only, instead they were a bunch of citizens who probably had lots of better things to do than be grabbed for jury duty, who gave a penalty mainly for lying and acting like an asshat after the downloading. This is why most financial penalties come with a wide range of possibilities: so the jury can either take a bit off if they feel there are mitigating circumstances somehow, or add a bit on if they feel it's necessary. That said, the low end of the range here is far too high.

Short version: if you're on the wrong end of this sort of thing, don't start lying and being obstructive unless you're sure that you can actually get away with it. Instead tell the, truth then if you get a settlement offer below $20/song you probably should take it, otherwise go to court, stand up and say you did download what the prosecution say you did (assuming they don't try to lie which they almost certainly won't) but you do not believe $750/song is reasonable and you hope the jury will agree.

Re:the fine didn't fit the crime

I'd point out that her hard drive was confirmed as damaged, Toast I think was the word used, by a Geek Squad employee. I'd also point out that this occurred PRIOR to her being informed that she was under any sort of investigation. To penalize her for this, as apparently occurred, seems wrong to me. The jurors comments about her benig stupid for not accepting a deal for a few K also appear to show some prejudice, I look at it as she could've gotten off cheap but fought instead which to me shows a tendency to believe that she might have been innocent not to think her stupid. Lastly, the woman was also an avid music purchaser according to her BestBuy purchase records. Someone who has the mentality to purchase that much music (hundreds of CDs was it?) was downloading and sharing freely? I wonder if that's really so likely. I find it interesting too that they claim to have some sort of fingerprint from her cable modem, what might that be? Surely not a MAC address unless it was provided by the cable company and I'd bet that their record keeping deserves a good looking over - particularly if they're a small one. I'd like to read over the transcripts of this, I'm not convinced, yet, that it's really so cut and dry based on at least some of the evidence quoted in a previous /. story.

Most damning IMO was the userID etc. that was being used. Certainly if anything this would seem to teach that it's best to use someone ELSE'S handle when using a service like Kazaa

Re:the fine didn't fit the crime

A right is something granted to you by some entity. Nowhere are you given explicit permission to nullify the law.

And that, my friend, is the beauty of the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

In the USA, at least, the lack of enumeration of a right does not imply that the right is non-existant.

If you go back and read some history, you'll find that a goodly chunk of the first Americans thought jury nullification is a right. I could quote a bunch of famous people, or give you the long history of Bushel's case, Zenger's case. I encourage you to educate yourself and look at both cases, in which jury nullification was upheld as a juror's right in the English common law (which, by the way, where do you think the rights protected by the 9th Amendment are most likely to spring from?).

No, I will quote only one authority:

"It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision... you [juries] have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy"

-- John Jay, First Chief Justice of the United States Supreme Court, State Of Georgia v. Brailsford, 3 U.S. 1,4 (1794).

Re:the fine didn't fit the crime

Jurry nullification dosen't work in civil cases.

In Criminal cases, the jury is the sole arbiter of the facts and law. They read the law as given in jury instrcutions as given by the judge, apply them to the facts, and come up with the verdict. Abesnt evidence of serious corruption within the jury room - that's the end of the road and the Prosecution can't bring the case again or ask the judge to overturn the jury (as opposed to the defense who can ask the judge to toss out a guilty verdict.

In a CIVIL case like this, the Judge is the sole arbiter of the law, the jury decides the facts. If the Jury tosses the law out the window and makes a decision which is contrary to law -- the plaintiff may enter a motion for Judgement as a Matter of Law (formerly: Judgment Notwithstanding the Verdict.) [this is a summary, post trial JMOL is actually a renewed JMOL, if you want to read up on it.. wikipedia is a good source: here [wikipedia.org].]

Essentially, since the judge has determined that "making available" is a sufficient act to violate a copyright - the question for the jury was "did the defendant make songs available for download." Evidence at trial linked her to the share folder - the kazaa username was the same that the defendant uses on myspace, and a small collection of other sites. She also wiped her drive / possibly handed over a false drive durring discovery (trying to hold back evidence == bad in the eyes of the court - as attempting to flee is evidence of guilt, attempting to hide or destroy evidence is evidence of a guilt.) The judge must then ask (in response to the JMOL) could a reasonable juror reach the conclusion that it is more likely the defendant did NOT make those files available for download? If no - then the JMOL is granted - the jury finding gets tossed, and they move on to determining the damages.

Jury Nulification is NOT for the win in RIAA cases.

-GiH

Re:the fine didn't fit the crime

And that's the jury's fault? The maximum was, according to TFA, $150,000 a song, and the minimum $750. They settled on less than $10,000. The law screwed her over long before the jury became involved (at least on damages; she seems to have screwed herself on the facts of the case and her defense).

So they could have settled on a penalty of anywhere between $18,000 and $3,600,000? Certainly that upper limit is absurd, but I don't see how that takes the blame out of the jury's hands for choosing $222,000 when they could have chosen something more reasonable.

Re:the fine didn't fit the crime

and secondly, if she did all that trickery, wouldn't it be plausible that she did shared *knowing* that it was illegal?

I think she was probably informed by the prosecution that she had broken the law. But I could be wrong. Those RIAA lawyers are wacky.

the fines are in the "low" side of the possible spectrum (from $750 to $150,000). Just consider she could have faced a $3'600,000 fine... now THAT would be outrageous.

If I'm ever on a jury and I disagree with the spectrum for something like the 'theft' of 'intellectual property,' I'm going with not guilty. I don't think it's fair to charge 220,000 for 25 songs, which works out in the neighborhood of $9,000 per song. Let's just pretend she got songs from 25 different CDs, and that the CDs are $20 apiece. That's only $500 that she could have possibly ACTUALLY stolen. In theory. How about we then fine her half a year's salary, say, ohhhhh $15k, and her kids have to eat ramen, don't get vitamins, and get to go to community college on pell grants. now THAT'S reasonable.

$220k? Not fucking reasonable. At a dollar per song, that's 220,000 people that downloaded it from her. What the fuck? This did not happen. I personally object to the whole thing based on the RIAA's:

1. 100-year reputation of treating artists and consumers like shit
2. argument that copyright infringement is theft, when last time I checked, theft was measured by the material loss of the victim.
3. everything else. I'm getting tired.
-Nathan

Re:the fine didn't fit the crime

Damn, it's disturbing that we need to make this correction so often.

I think she was probably informed by the prosecution that she had broken the law. But I could be wrong.

You certainly are. You meant to say, "I think she was probably informed by the plaintiff that she had committed a tort.

civil case != criminal case.

Re:the fine didn't fit the crime

Bankruptcy doesn't take your retirement savings or home unless you have used the home to secure a loan that you are in default on, and even then you can often work out a way to keep the home. You are also often allowed to keep a cheap car and tools that you need for your job. The idea is that the bankruptcy process should not leave you as a ward of the state, rather it is a way of keeping creditors off your back so you can repay at least some of the money.

Re:the fine didn't fit the crime

The woman had an opportunity to settle out of court for a much lower amount. She chose to pass up the opportunity to settle and instead decided to push the issue knowing what the possible outcomes were (anywhere from her winning to around $150000 per song). She lost and got a smallish fine compared to what it could have been.


OK. So when someone threatens you with a law suit but offers to settle for a much lower amount, you should always settle. Well, if that's how you feel. Your name here on slashdot offends me. It is too close to dick, which is a common euphemism for a penis. I'm going to sue you for 10 Billion dollars. You have the option, of course, for settling for a measly $5 million if you so choose. Since that is so much lower than the total amount (less than 1%), I expect that you will be settling. Send me a message via slashdot with your bank account information so I can go ahead and do a reverse ACH payment and we will consider this little matter closed. I expect you to have the money within a week.

Re:the fine didn't fit the crime

"However, during the Civil Rights era, all-white juries were known to refuse to convict white defendants for the murder of African-Americans."

From the Wikipedia article on jury nullification. If the laws are unjust, let them stand and be mocked. Let them be remembered in history as a shameful chapter. But don't take matters into your own hands in a back room.

Re:the fine didn't fit the crime

The other effect of jury nullification is also important. William Penn once was brought into court for preaching a Quaker sermon. A jury refused to convict him for his illegal actions. http://www.constitution.org/trials/penn/penn-mead.htm [constitution.org] (Actually a fascinating read.) Were the members of this jury delinquent in their duty? Were they criminals? I say they weren't (and the law agrees). I say that, more importantly, they were doing precisely their duty when they refused to convict a man unjustly, based on an unjust law.

Re:the fine didn't fit the crime

Want a higher principle?

Lets start with the notion that copyright is meant to serve the public interest.

Follow that up with the notion that "cruel and unusual" punishment is wrong.

Yesterdays top 40 hits simply aren't worth ruining a civilian's life over.

Re:the fine didn't fit the crime

I'd rather have guilty people go free than have innocent people be found guilty. Jury nullification achieves that. (And a judge can prevent a jury from convicting someone unjustly, so there is balance.)

Re:the fine didn't fit the crime

think the law is retarded. But blaming the jury is like blaming the soldier on the ground in Iraq for the war--he just does what he's told, and not what he thinks should be done.

Blaming a US soldier serving in Iraq for Iraq war would be like blaming a Mafia thug for helping enable the crimes of Mafia. US doesn't have conscription, but a voluntary for-pay army. If you choose to take money from it in order to help it in its activities, of your own free will and under no coercion, then of course you can be blamed for taking part in said activities. Why on Earth would US soldiers be exempt from being held accountable for their choices ?

As for the jury, it decided to enforce an unjust law when it had the option of not doing so, and not only that, but ordered higher penalties than the law required. It is guilty as Hell.

Besides, if the jury must uphold the law, then just why are they there ?

That juror "never used the internet"!

Here's one of the more interesting quotes from the juror:

Hegg, a married father of two who said he formerly raced snowmobiles, said he has never been on the internet. He said his wife is an administrator at a local hospital and an "internet guru."

I think we can all see the problem here. Anyone in the US who hasn't been on the internet by 2008, well, they have no clue what the hell they're talking about. Also this guy calls her a "liar", while she was off by a year in terms of when she had the HD replaced, she had it replaced *before* the RIAA notified her and the guy who replaced it testified that it was really, honestly broken.

Apparently, there was only one juror who held out for reasonable damages (the $750 minimum) and the $9,250 per song was a compromise.

"I think she thought a jury from Duluth would be naïve. We're not that stupid up here," he said. "I don't know what the fuck she was thinking, to tell you the truth."

Naïve? No. Ignorant? Yes.

At least she plans to appeal [freejammie.com].

Re:So did the jury ...

Wrong [wikipedia.org]. Half the point of having a jury of peers instead of government officials is to add another check to the system if the jury feels the law itself is a just one.

Re:So did the jury ...

Sorry, but Jury Nullification, while having deeply entrenched common law roots, is not as cut and dry as you may think it is. Many court cases, including some from notable power courts such as the Supreme Court of California have held that Jury Nullification is "contrary to [the court's] ideal of justice of equal justice for all and permits both the prosecution's case and the defendant's fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law." People v. Williams (2001) 25 Cal.4th 441, 463

Also, just from browsing the Wiki article you linked there are many examples of court cases in which Jury Nullification has either been criticized or not been held to be a viable option for juries. See U.S. v. Krzyske 836 F.2d 1013, 1021 (Upholding on appeal a judge's answer to a juror that jury nullification "didn't exist") and U.S. v. Thomas 116 F.3d 606 (2d Cir. 1997) (holding that jurors can be removed if there is evidence that they are planning on utilizing jury nullification)

Now, I'm in no way advocating the removal of the concept of jury nullification from our system, but I'm simply stating that to just throw out such a blanket action as the answer to this question doesn't help much because the action itself is under attack by significant powers in the legal realm. At least IMO, it seems like it would make much more sense to focus on electing a decent legislative body to reject these rules, rather than holding out for jury nullification that really only works as a one shot deal to begin with.

Re:So did the jury ...

Supreme Court of California have held that Jury Nullification is "contrary to [the court's] ideal of justice of equal justice for all and permits both the prosecution's case and the defendant's fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law."

The application of law is already whimsical and often capricious. Bush had the Justice Dept. stop prosecuting Microsoft. Cops have the freedom to not give tickets to friends. DA's have the freedom to (silently) choose not to prosecute for political reasons.

And besides, we can't really expect judges to support the people's overriding of a conviction the judge would like to make. We the People are the final authority in the U.S. system, even if judges, DA's, congressmen, and Presidents claim otherwise. I submit that we just lack the balls to consistently assert our authority.

Re:So did the jury ...

The application of law is already whimsical and often capricious. Bush had the Justice Dept. stop prosecuting Microsoft. Cops have the freedom to not give tickets to friends. DA's have the freedom to (silently) choose not to prosecute for political reasons.

In other words because the system isn't perfect, we should make it worse?

And besides, we can't really expect judges to support the people's overriding of a conviction the judge would like to make. We the People are the final authority in the U.S. system, even if judges, DA's, congressmen, and Presidents claim otherwise. I submit that we just lack the balls to consistently assert our authority.

The jury already has authority on matters of fact, and it's typically the evidence that's lacking when if the judge is out to "get someone". The judge has very little leeway to interpret law, and is likely to get overturned on appeal if he tries. There are in fact supreme courts that only deal with matters of law and whether it was correctly applied. From what I've understood, the primary function of jury nullification is to counteract corrupt laws.

But when the legislative process is working properly, I'd much rather trust the "we the people" that through representative elections vote in congressmen which pass law, rather than the "we the people" biased sample of a dozen, where any single individual is given the authority to fuck the process. To give one member of the public the authority to override the authority of we the people, is not to empower the people.

Re:So did the jury ...

just because a jury can go against the law doesn't mean that's half the purpose of a jury.

It's not "half the purpose of a jury", it's the whole purpose of a jury of the defendant's peers. When the law is wrong, the jury's constitutional, patriotic duty is to overturn the bad law. If not for jury nullification, a jury of peers is useless. Laws are laws and peers or not, a jury would have to uphold them against any benefit to society allowed by removing the bad laws. Except they can nullify bad laws and not have to uphold them.

Only in the case of a good law (i.e. not indefinite copyrights held by non-human, non-individual entities) would a jury need to find the accused guilty.

Re:So did the jury ...

It clearly shows what is going on in minds of regular (and "better") people in the US.

One aspect is that, if somebody is not doing well, or has done something wrong, it's ok to kick even more so s/he "learns" and gets better (the stern father penalizes).

Effects are overpopulated prisons, total weak or missing social umbrella and an increasing number of people under poorness level.

The other fact shown here is that people are totally out of touch with financial reality. Financially ruining a life of (is she a single mother?) a person with the idea to doing something "right" shows an overwhelming degree of insensitivity.

I am appalled!

Re:So did the jury ...

If she was aware that she was breaking the law, she probably didn't think the punishment would be so ridiculous.

If mp3 copyright infringement was prosecuted as this case was, 99% of the people aged 15-22 would be in bankruptcy.

This case was akin to being charged a $1,000,000 fine for a speeding citation. The statutory minimum damages are unreasonable, and the jury is even more unreasonable for assigning an even higher fine.

Re:So did the jury ...

she broke the law and she lost.

We don't actually know that yet. She did appeal the case.

The law says you can't distribute stuff when you don't hold the copyright.

Did she distribute?

She was convicted of distribution. Actually, she was also convicted to pay more than 9000$ for each song she allegedly distributed. But there wasn't a shred of evidence that she distributed anything.

For that simple reason, she should not have been convicted.

Don't get me wrong here. I am no pirate. I fact I am probably one of the few rare examples of people who don't have a single illegal MP3 file or movie. I also believe that pirates should be punished.

But the evidence must be present. No matter how much I dislike pirates, ensuring a fair trial (with appropriate evidence) is far more important that collecting money for the greedy "content industry".

- Jesper

"But the evidence must be present"

Not according to the judge in this case.

Link [eff.org]

Jury Instruction #15: The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown.

Re:"But the evidence must be present"

Not so fast, he says it violates the copyright owner's exclusive right of distribution because copyright law says only the copyright owner can authorize copies to be made. She allegedly violated their right to authorize, by making the file available and even though no actual distribution was in evidence. For example, if you sell somebody the right to perform a copyrighted work you've violated the actual copyright owner's exclusive right to do this.

Or in other words, if you leave your keys in the car then you must have authorized people to steal it, and if you leave the keys in your friend's car then you must have put somebody up to stealing it since you obviously authorized the theft by leaving the keys in it. Or your Sunday newspaper, hey it's right there on your lawn where anybody could take it so you must be ok with that. Or if you are walking down the street with no underwear on and get 'assaulted' it's not rape because, hey, you made it available that means you authorized it.

Making available != authorizing and this judge is an idiot. That part of the verdict is complete bunk. The part about her violating the copyright sounds right though.

Re:"But the evidence must be present"

Wasn't this the same instruction that had previously been overturned [slashdot.org] in another pending case... that the RIAA kindly forgot to mention to the court in this particular case?

Re:So did the jury ...

Appeals aren't decided by juries. In fact, they are almost entirely to decide legal questions and procedural questions; an appeals court more or less doesn't redecide a jury's finding of fact.

If the appeals court decides, for instance, that the trial judge was wrong in the instructions to the jury in a material way, the case could be retried, but the retrial itself isn't the appeal.

Re:So did the jury ...

But in this case, as I understand things, there was a deliberate effort by the prosecution to mislead the judge and jury about the outcome of another critically relevant case in which it was decided that making available != distributing. Therefore, the finding of facts in this case may have been based on a fundamentally incorrect understanding of the law, and thus completely invalid.

Re:So did the jury ...

That is a legal issue. It's going to be up to the appellate court to decide whether or not copyright can be violated by "making available" or if actual distribution must be proved.

The appeal is going to be a lot more interesting than the trial.

Appeals are where precedents get set. If the appellate court rules that the trial court erred in its instruction that "making available" equals copyright violation, then that will blow up the RIAA's current business model.

Re:So did the jury ...

No, the jury's job is to determine if she broke the law, *and* determine if the law makes sense. There's this notion called Jury Nullification [wikipedia.org] that provides for juries to not convict despite violation of law.

Re:So did the jury ...

Perhaps you can explain WHY the Constitution specifically requires that people can be tried by a "jury of their peers", if not for the reason if giving common citizens a way to nullify unjust laws or judicial decisions.

A little hint: it's not because such a jury is going to "weigh the evidence" better than a panel of people who have received training in analyzing legal & evidentiary issues.

It's specifically because the Founders wanted a last-ditch mechanism for common citizens to protect each other if all three branches of government are operating out of the bounds of common sense.

It's only natural that the judicial system try and discourage this kind of thinking (and it's a damn shame that schools don't teach enough American Civics anymore to make people aware of their duties in this area), but that doesn't change the original intent of the Founders, and it's one damn good way for people to push back against an out-of-control government.

It's too bad there aren't more such ways. I personally think that it should be a Constitutional right to vote, regardless of whether you've been convicted of a crime or not (unlike the usual policies of disenfranchising convicted felons).

The way I see it, if your society is running in a healthy way, then there shouldn't be too many criminals & their vote won't have much of an effect on votes/elections.

If the government is heading in a direction where it's criminalizing a large chunk of the populace, however (which is a common tactic when the "leaders" of a society want to disenfranchise people who don't support them), then the votes of the convicted should provide a valuable negative feedback mechanism to the officials being elected to make them think twice about what kinds of laws they are passing.

Re:So did the jury ...

No, the jury is free to vote with its conscience. The juror's conscience is the final line of defense against an immoral and unjust law. The beginning of the end of Canada's old abortion laws came when juries repeatedly refused to convict a doctor of providing abortion services, which finally clued in the politicians to the fact that the winds of public opinion were turning against the law.

If you are on a jury and feel that the law was unjustly applied, nobody can stop you from putting your foot down and refusing to convict.

Re:So did the jury ...

You can name the guy. Dr. Henry Morgentaler [wikipedia.org]. Over and above the caes cited in the previous link, he was also tried 3 times for running abortion clinics, and 3 times, jurors refused to convict. This was around the same time that Jean-guy Trmblay tried to prevent his girlfriend (Chantale Daigle) from getting an abortion [wikipedia.org]. Turns out the creep was a control freak, and liked using his fists. Here's what happened 10 years later.

n 2000, Jean-Guy Tremblay was convicted of two counts of assault in the violent beating of his former girlfriend and her close friend which had taken place the year before in Calgary. He was sentenced to five years in prison plus a ten-year supervision order. Tremblay took his fight against the supervision order to the Supreme Court, but the Court decided against hearing his appeal in 2005. At the time it was revealed that he had been convicted of 14 attacks on women, most of whom were his former girlfriends.

Do I dare say "typical right-to-life control freak"? Well, maybe not typical, but certainly in retrospect his motivations had more to do with control and getting back at someone who had the "audacity" to dump the creep than with any concern for any potential offspring.

Re:So did the jury ...

Why? The case was cut n dry, she broke the law and she lost.

Cut and dry? BULLSHIT While I was not there, every article I have seen on this indicates the RIAA wasted most of their and everyone else's time ranting about what "piracy" was doing to the industry, the only "evidence" that might have indicated there was even the possibility that she had even so much as a kazaa account was the testimony from their "expert witness".

That witness does not even validly qualify as an "expert witness" and has had their testimony thrown out of numerous courts as well as being threatened with legal action if they continued their work in the state of Texas. Their "facts" have been proven invalid again and again as well as being laughed at and torn apart here at Slashdot. Unfortunately her lawyer didn't mount a strong attack on this or apparently even object to their ranting in court about all the harm being done by "pirates" as being irrelevent as to the matter of whether or not his client was liable in this particular case. Further, the "expert witness" has been known to break into people's computers to look for evidence, once that happens how can you expect to be able to call anything they "find" on a computer to be valid?

The interviewed juror seemed to think spoofing was an unbelieveable claim just because he didn't know how ("we aren't stupid") and with his comment about his wife you have to wonder if he didn't discuss it with her, which would be a conduct violation on his part. Being as this jury wanted to prove "we aren't stupid around here" then it was likely that in their ignorance they decided to go with the "higher authority" and perceiving that to be the RIAA instead of one individual.

All this case proves is that the system works and I don't mean the Justice System, I mean the one that starts with you being taught to blindly accept authority by the Public School System. The jurors perceived the RIAA as the authority here and accepted all the crap they fed them.

One of the major problems with the civil justice system is that "preponderance of evidence" is too often equated with who produced the most evidence. It is undeniable that a corporation can afford to produce a greater quantity of "evidence" then an individual can and it is almost impossible to prove you did NOT do something. In this case Best Buy even had the sales records where she had purchased the albums that include the songs she was accused of sharing. There was no Kazaa software on her hard drive nor any evidence it had been there. Yes the drive had been replaced but it was testified by the Best Buy tech that this had been done before the alledged events.

She testified she ripped all those songs from cds she owned, RIAA tried to say she couldn't have done it as fast as the times indicated. Feel free to test this, grab a fast entire cd at a time ripper and race it against finding and downloading the same tunes, willing to bet the ripping process wins hands down especially if you have your cd collection right there and run it like the back up operation it is.

There is more that could be said but I am tired of ranting. Maybe Mr. Beckerman will log in and give that "cut and dry" line a proper roasting.

Re:So did the jury ...

Well, actually, it's more like $200,000 for illegally downloading and distributing copyrighted material, and wasting a court's time with lies and deception to try and get off it.

She would have paid far less if she hadn't wasted the court's time and insulted the intelligence of the Jury.

I support more excessive remedies for people who bring lawsuits or escalate civil action to court under fraudulent circumstances (yes, on both sides of the battlefield).

Re:So did the jury ...

The job of the jury isn't to decide on the basis of a popularity contest; the decision is...did she break the law or not?

They got to choose what her financial penalty was.

They purposefully picked an amount that had absolutely no relationship, whatsoever, to the financial damages that may have been incurred. This was not a matter of law. This was a bunch of citizens sitting in a room and purposefully deciding to ruin the life of somebody that they didn't like.

Re:So did the jury ...

This was a bunch of citizens sitting in a room and purposefully deciding to ruin the life of somebody that they didn't like.

May I introduce you to the U.S. Congress?

Re:So did the jury ...

The only thing this jury proved, IMO, is that people tend to abuse any power that is given them.

They were legally required to assign a penalty appropriate to the crime, but they did not do so. They ignored this obligation, choosing instead to "send a message" to a woman who they did not like.

They used the law as a weapon to destroy a person who offended them personally. They succeeded only in proving that feeble people, when given power, tend to abuse it, and that Duluth has plenty of feeble people.

We're not stupid up here

Apparently you are lady, you put a judgement of 200K over a few songs.

She could have shoplifted the cds for a few hundred dollars in fines.

Re:We're not stupid up here

No, but she made the songs available to all of them, and that is what she got punished for.

There's one thing I don't understand...

let's assume that the woman DID share the files.

OK, let's assume there were 50 to 100 total downloads.

100 downloads, at 0.99 cents a piece (let's be realistic here), equal = 100 dollars!

So, what's the basis to affirm that she should pay $222,000 for 24 songs? This is where the RIAA's case is illogical. They assume that the downloaders will distribute and that this will cause them many losses. But that's THE DOWNLOADERS' FAULT, not hers.

They're making her responsible for what EVERY DOWNLOADER DID. Instead of downloading from her they could have bought a CD (even pirated!) or downloaded from someone else.

And this is where "making available" doesn't equal massive infringement. The fines MUST BE PROPORTIONAL TO THE NUMBER OF DOWNLOADS.

Re:We're not stupid up here

Her lawyers are clearly morons though.

She should have gone for a guilty plea, but then majored on mitigation.

The jury should have been asked to consider this:

• Have you ever created a mix tape? You're guilty of copyright infringement.
• Have you ever taped a song of the radio? You're guilty of copyright infringement.
• Have you ever played a CD in your car with the windows down next to a busy bus stop? You're guilty of copyright infringement.
• Have you ever sung Happy Birthday To You to a friend or loved one? You're guilty of copyright infringement.

What matters here isn't the facts, which are clearly against the defendant, but the law, which is clearly against the people.

More than a preponderence of evidence

This really was an open and shut case. There was very little doubt the woman was guilty, that's why the RIAA didn't drop the case. I think her hope was that the jury would see a bunch of rich record labels going after some poor ignorant middle aged woman, and the jury would say "fuck you" to the labels. The only gripe I have with this was the size of the award- $10K per song is pretty stiff.

Sounds like a great jury

From TFA: But Hegg said the jury in U.S. District Court in Duluth would have found her liable even if the plaintiffs had been required to establish that Kazaa users had actually downloaded the music.

"It would have been a lot harder to make the decision," he said. "Yes, we would have reached the same result."

I'm glad to see that jurors no longer need to hear evidence/proof and have their minds made up in advance. /sarcasm The article made it sound like (imho) that the jury had already decided before all arguments had been heard.

Copyright penalties are DELIBERATELY draconian.

... [$]222,000 is in no way reasonable (~9k per song).

Penalties for copyright violations are deliberately draconian and have been since the beginning of the law.

The idea is apparently that:
  - It's very hard to identify the violators (or even that a violation took place).
  - So only a small fraction will be caught.
  - If the penalties are comparable to the actual damage of the offense (a pittance), potential offenders may simply make take the chance - and be rewarded on the average by nearly-free copies.
  - So the penalties are set high in proportion to this fraction.
  - With high penalties the offenders' bet becomes a losing proposition, a low probability of a big hit. Paying for the content in the first place becomes cheap insurance.
  - And with high penalties the copyright holders can make enough from the small fraction they do catch and convict to be "made whole" on their losses from the great mass they miss.

Of course there are problems with this. And the biggest one is with the standard of proof.

Civil law is about making things right. Two roughly equal parties with a dispute go to a court. The court decides which is more likely to be right ("preponderance of evidence" rather than "beyond a reasonable doubt"). The one found to be in the wrong pays the amount needed to make things right. If the one found in the wrong was found to have known what was right and been wrong deliberately, that typically means he pays the wronged party three times the amount of correcting the harm, rather than just the amount.

  - Draconian penalties to shift the expected outcome of a rule-breaker's bet is the stuff of criminal law, with its higher standard of proof.

  - A person paying, not only for his own misdeeds, but for that of thousands of others, is hardly "setting right" the result of their own misbehavior.

  - If the punishment is to be, not three times, but nine thousand times the cost of the alleged offense, how fair is it to use a "more likely than not" standard? If an innocent person is to be put at risk of paying nine thousand times the price of the stuff he allegedly obtained, shouldn't this require a "nine-thousand-to-one" standard to prove the case?

Not the question of guilt, but of quantity

Well, yeah, she was pretty clearly guilty (e.g. wiping the hard drive after she got in trouble). That's not the issue. It's a question as to whether the ruinous damages were justified.

They weren't.

Re:Not the question of guilt, but of quantity

Well, yeah, she was pretty clearly guilty (e.g. wiping the hard drive after she got in trouble).

She wiped the HD *before* being notified.

Re:Not the question of guilt, but of quantity

She also had the hard drive wiped by the geek squad and they testified that it was due to a legit windows problem. The geek squad guy was also asked of the defendants music buying habbits at bestbuy. The defendant was a huge purchaser of music cds.

Re:Not the question of guilt, but of quantity

Windows is crapping the fuck out on me lately. I think it's time for a reinstall. Do I need to have a judge sign and affidavit stating that I did it soley for the purposes of fixing the fact that Windows doesn't load half the stuff I want it to on boot up (I want my Volume control dammit!).

The jury *was* full of morons...

"That is a compromise, yes," said Hegg, a 38-year-old steelworker from Duluth, Minnesota. "We wanted to send a message that you don't do this, that you have been warned."

Sorry, $9,250 is ridiculous and doesn't send a message about anything other than the fact that, contrary to the comment of your fellow juror that you do in fact know what's going on in Duluth, you really don't know what the fuck is going on. You awarded money that was originally meant for people who were *SELLING* copyrighted songs, not "sharing" for free.

White Bronco Redux

All of the Slashdotters who are holding up Jammie Thomas as some kind of martyr remind me of the African-Americans who embraced OJ Simpson as some symbol of racial injustice.

You guys have picked the wrong horse.

Re:White Bronco Redux

You are absolutely right. Sure, we all hate the RIAA because their tactics are suspect, but the fact is that the music she downloaded and shared was not hers to distribute. The rights belonged to the artists who recorded it, and those artists made a decision to sign with a record label and therefore protected by the RIAA. What she did is wrong. Did the penalty fit the "crime". No way. But she should not be vilified. She fucked up. Bad.
The lesson learned is that the next person who get a fine from the RIAA, and the opportunity to settle had damn sure better have a solid defense if they take it to court. Claiming someone outside your apt hacked your wifi when you don't own a wireless router just won't cut it, even in RedneckVille, USA.

Re:White Bronco Redux

I believe in copyright law.
Unfortunately the current laws regarding copyright, and it's power in enforcement is completely unjust, and against it's intent.
Not to mention paying a 100 times the common sale value of something as a fine is excessive.

Re:White Bronco Redux

It's a simple issue. If nobody complains when a less than saintly person gets unusual and vindictive punishment, it's all the more harder to complain when later a saintly person gets the same punishment.

This is because the British and American systems of law are based on precedents (unlike many European systems that are derived from Roman law), and like it or not, the precedent is now there to fine YOU a quarter of a million dollars for no good reason if this stands.

Insane.

Two points here:

1) I can't imagine what a pathetic and aggressive loser you have to be to think that somebody should pay $3.6m as restitution for letting somebody copy 24 songs (even if you think they're guilty.)

2) It really sounds like they don't understand the difference between a defense lawyer saying "they didn't prove that this technically feasible activity didn't happen" and a woman who is actively claiming that this was the case.

I hope that the douchebags who pushed for $150k/song get hit by the RIAA because their kids installed some software without their knowledge, because only then will they realize how completely and totally fucking wrong they are.

Jury Instructions...

For what it's worth, I was recently picked to be on a jury in a (totally unrelated) criminal case, and the judge's instructions to us were very specific that it was our job as jury to decide what the facts of the case were, but that it was not our job to decide what the law said or whether the law was fair or not. I'd guess this jury received some similar instructions.

(I know that, historically, some juries have refused to find a defendant guilty when they thought the punishment excessive for the crime or didn't agree with the law. I'm just throwing this out there because I suspect it'll be relevant to some of the posts to follow.)

Re:Jury Instructions...

I know that, historically, some juries have refused to find a defendant guilty when they thought the punishment excessive for the crime or didn't agree with the law.

That's called "jury nullification" and judges hate it because there's not a damned thing they can do about it. In fact, attorneys are forbidden to mention the concept in their arguments. If the jury in this case had decided to do that, the RIAA would have had no grounds for appeal, because the jury is the *only* arbiter of fact. You can appeal decisions of the judge, but not the actual jury decision. IANAL and all that, but that's how I understand it.

She was made an example of

It's sort of the perfect target for the RIAA. Somebody was caught and then stubbornly played dumb, ignoring the possible repercussions. The result is exactly what they wanted - big headlines to scare the general file-sharing public. The money reward is pocket change.

Meanwhile, will it really deter piracy? No. Does the punishment fit the crime? No. They can see all that money slipping away and there's not a thing they can do about it.

I agree but ...

The most disturbing part of these interviews was that the jurors said they would've reached the same conclusion regardless of whether a transfer had to take place to be infringement, especially since none of the case coverage mentioned the RIAA lawyers showing evidence that any transfers took place at all. They mainly focused on how file sharing is terrible for their cartel, estimates for its effect on their cartel as a whole, etc ... They never said anything like, "As a result of her making files available, N people downloaded the song for free, which translates to $D in lost sales". Absent any evidence that transfers took place, there was no way the jury could have found her guilty of infringement if the instruction was "Infringement only occurs when a transfer takes place".

The jury definitely had their minds made up well before their deliberations. They came to the right legal conclusion for the wrong reasons: they felt insulted.

Re:I agree but ...

The RIAA did not have to show that they lost $D in lost sales. They sought statutory damages instead. Statutory damages can be a bit problematic though, especially copyright statutory damages which are per work. They tend to overpunish on works such as individual songs; a light infringer can rack up even minimum damages very quickly. In this case, the defendant would have been liable for at least $18,000 once infringement was found. On the other hand, they can underpunish in other situations. Imagine someone making an illegal copy of a pre-release movie reel, but being caught before distributing it. The potential damages the individual could have caused to the success of the movie and the total cost of producing the movie may have been much more than the damages caused by the infringer of a bunch of songs, but the statutory liability is quite low (less than what the defendant in this case was hit with I believe).

A naive jury from Duluth.

"I think she thought a jury from Duluth would be naive."
Way to disprove that by fining a stupid Kazaa user a quarter of a million dollars.

Stupidity

"I think she thought a jury from Duluth would be naïve. We're not that stupid up here" implies that Duluth juries are stupid... just not *that* stupid.

Conclusion

The obvious conclusion is that if you want to avoid bankruptcy, don't illegally share songs on Kazaa. I don't see what's so hard about that.

Don't Lie

I think the real lesson here is that you shouldn't lie to a jury. It sounds like the juror was pissed off that the defendant didn't respect them enough to tell the truth.
If you're going to get up and give testimony, don't tell obvious lies.
The jurors have been called away from their everyday lives to sit and listen to an argument between two parties they have no interest in. The least you can do is show them some respect.
If I was on that jury, I would have counted that as a big strike against the defendant as well.

Re:Sorry, juries don't work like you think they do

IANAL either, but my fiancee who is assures me that jury nullification is alive; the courts just don't want to mentioned.

Your woeful ignorance of the concept of jury nullification not only bothers me, but it terrifies me. The jury is the final arbiter of truth, and a not guilty verdict cannot be overturned, "legal" or not. It has a long standing tradition in North America, predating the American Revolution. In fact, citizens of the colonies used jury nullification several times to "nullify" laws they found unjust. Since you've served on so many juries, no doubt you noticed that the jury doesn't read the verdict plus a paragraph of reasoning? Jury nullification cannot be truly removed with the current system we have in place.

That said, I also believe that she was shown guilty far beyond what the law calls for.

Unknowingly making available?

I'm thinking about something here.

Usually when you rip a CD, where does the software put it? In "my music", of course. That's the default for music - and most Joe users put their documents in guess where? "My documents"

And when you install kazaa, doesn't it automatically scan for music in "my music"? In fact, I think it scans "my documents", too!

She could easily have alleged ignorance of how the software worked, i.e. she ignored she was sharing it and was only using it for downloading.

help her out then /.

in light of the 10 year anniversary of /. and a bunch of people completely pissed off at the RIAA agenda, someone could easily setup a paypal donation account or something of the sort and we could see if /. user base really cares about a woman who's life has been ruined by the RIAA. That would make sense, be easy, help someone who thousands of people find has received injustice, piss RIAA off, and perhaps grab headlines around the globe. She may be guilty of sharing the songs, she may owe SOMETHING, but if so many people can plainly see the injustice, then how come no one helps another citizen? Corporations and government have already won, good game.

Re:help her out then /.

For the same reason that buying animals at a pet store because you feel sorry for the way they're being treated is self-defeating. If you shovel a bunch of money down the maw of the RIAA, they'll come back for more. Contrary to the popular (and petulant) belief around here, the RIAA doesn't actually care about music piracy. What they care about is making money. It just happens that music piracy stands in the way of that goal. They're just as happy to make their money by draining legal defense funds as they are by selling CDs.

If you want to fuck with the RIAA, a) write a letter to your congresscritter, perhaps along with a campaign donation, and b) don't buy RIAA products. But don't think giving a bunch of money to the RIAA is going to discourage them.

Distribution is irrellevant.

Copyright governs copying, not distribution. Distribution, or even sufficiently shown intent to distribute, is only used as _evidence_ of copyright infringement when it occurs, and should not be confused with the actual infringement itself (further, distribution magnifies potential damages that can be awarded). The copyright infringement happened when she copied the work in the first place for purposes that were themselves, in the end, not exempt from infringement (ie, putting it up for distribution on a public network, whether or not distribution actually occurred).

Re:Distribution is irrellevant.

Copyright governs copying, not distribution.

I'll start with giving you the benefit of the doubt: you may be living in a very exotic country.

For the rest of us, however, copyright legislation contains more than just the one word "copyright". For the most part, it contains numerous paragraphs with restrictions on copying, distributing and performing the work in question as well as many other restrictions around use of the work.

Case of stupidy

In the article, it says that she did turn the hard drive over to the RIAA. That act is just stupid, as RIAA can plant there evidence there if they wanted to do so. Also, most computers on dial up and ADSL have dynamic ip, but as most here knows, that means the end user ip changes each time it is connected to the internet. That alone should have been able to cast the whole case in doubt. The jury is a case of people how have no understanding of computers or how the internet works.

RIAA should also be sued for tampering with the evidence by demanding that people hand over there hard drives for them to "inspect" them. By there own specials investigators, but RIAA doesn't have the right to do so. Since they are not a police force of any type.

How did the prove

a) That it was a different hard drive. Maybe the shared folder didn't exist on the drive she turned over? But wouldn't her assertion that she was spoofed have made any dent in the credibility of the so called expert witnesses presented by the RIAA?

b) There are enough loopholes that you could prove that she didn't have the monitored IP address since almost all broadband ISP's do two things. First your IP address cycles regularly. Second the logs only go back for so many days. So the proof is hard to come by.

c) The number of open wireless networks near me is astounding. Were I to share files I'd most definitely be using someone elses network and not mine. Therefore spoofing made easy.

Attorneys aren't the brightest bulbs to begin with. In RI Attorney Brian Cuynha cannot sue the foam manufacturers in re the Station Fire because he forgot to notify them that he was filing suit against them. There is an electronic filing system and he doesn't know how to use it.

And jurors, were I to be dragged into court on an RIAA charge I'd want a true jury of my peers. My peers being I.T. people who know the difference.

She was from out of town

The key line: "I think she thought a jury from Duluth would be naïve. We're not that stupid up here."

She was from out of town.

Minimum

From TFA:

At least two jurors, one of them a funeral home owner, wanted to award the Recording Industry Association of America the maximum $150,000 for each of the 24 copyright violations, while one juror held out hours for the $750 minimum for each violation of the Copyright Act, he said.

There's a $750 minimum?? WTF? Where did that come from? Is that for anything? It seems pretty lucrative.

Ok, this post is copyright me.

Now I just wait until somebody copies it without my permission. That's a minimum $750 bucks, dude! Hand it over.

Dangers of Jury trials

You can always get 12 clueless idiots. Or 12 with a vengeance.

Sounds like they got at least one this time.