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.