RIAA's $222k Verdict Is Likely To Be Set Aside

NewYorkCountryLawyer writes "Apparently the RIAA's 'big gun' didn't fare so well this morning in Duluth, when he tried to persuade the judge in Capitol v. Thomas that the part of the Copyright Act which says 'by sale or other transfer of ownership, or by rental, lease, or lending', can be disregarded. According to an in-person account by Wired.com the Judge indicated that he is likely to grant a mistrial, setting aside the $222,000 jury verdict based upon his incorrect jury instruction, and that he will probably hand down his decision in September. Just yesterday some of the same lawyers got rebuffed by the US Court of Appeals for the Second Circuit in their attempt to argue that Cablevision's online storage for its customers constitutes a copyright infringement, in Cartoon Network v. CSC Holdings. There, too, the content owners had argued that the wording of the Copyright Act did not mean what it said. There, too, the Court politely but firmly disagreed."

Infringing your own copyright

The part that bugs me is where Toder (defense lawyer) says that the plaintiff can't introduce evidence of the investigators downloading files from the defendant. According to TFA:

Those downloads, Toder said, cannot be considered unauthorized downloads because the RIAA authorized them.

I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?

Not defending the RIAA, but just pointing out something that seems illogical to me.

Re:Infringing your own copyright

As I understand it, it is because the undercover cops are legally sanctioned to conduct investigations (provided the follow all the proper laws/regulations). However, that doesn't mean I can buy drugs and then give said drugs to the court as evidence that whomever I bought them from is a dealer. There is most certainly a probability of some sort of conflict of interest. Perhaps I am a drug dealer, and simply don't like my neighbor.

In any case, the RIAA is not using (or so it seems on /.) legitimate means to go undercover (ie unlicensed investigators). They are in some effect being a vigilante (or trying to anyway).

Re:Infringing your own copyright

The reason this may stand up is that in the drug case it is SELLING the drugs that is illegal. In copyright law it is making the copies that is illegal. So -

in the drug bust the cops observe the dealer selling drugs; i.e. the illegal act.

in the copyright case making available is not the illegal act. The party making the copies (i.e. downloading) is the only one committing the illegal act.

Re:Infringing your own copyright

In copyright law it is making the copies that is illegal.

This is not true, which is kind of the point of the judgment being referred to.

It is distributing copies that is illegal. You can make as many copies as you want, but if you rent them out, sell them, etc, then you are in trouble.

The party making the copies (i.e. downloading) is the only one committing the illegal act.

You're pretty close there... but making the copy is not the problem. The problem is downloading it. If I were to log into your computer remotely, and copy all your copyrighted media files to the same computer, that is not a violation. Transmitting the files? That's a copyright violation.

Re:Infringing your own copyright

The library makes copyrighted works available and they aren't at fault if someone violates copyright using one.

Re:Infringing your own copyright

Most libraries have a copy machine in them. So, Person 'A' walks into a library, takes a book off the shelf, walks over tot he library's copy machine, and copies the book.

Who's responsible? Person 'A' who did the copying? Or the library for 'making available' the copier??

Re:Infringing your own copyright

Basically, it's the same as a library making CDs available for borrowing and providing a CD copier. As I understand it, if you as the borrower are making the copies, even if the library provides the equipment, you are violating copyright, not the library. Not sure if that theory has been tested in court, though. But yeah, one could reasonably interpret copyright law to indicate that the downloaders are violating copyright, not the people making it available. This differs from hosted storage in which the person who uploaded it to the server initially was making an unauthorized copy, i.e. both parties committed a copyright violation.

Of course, when they were going after downloaders, everyone screamed and said that they should go after the people making it available in the first place. I don't think there's any way for these folks to win... except... oh... maybe not suing their fans.

Re:Infringing your own copyright

So, genius, explain to me how you upload something without making a copy.

I don't know why you got modded down as a troll. You ask a very important question which, fortunately in this case, has a very simple answer:

Jammie Thomas isn't accused of uploading, she is accused of "making available". If you have a file that you have the legal rights to, and you happen to put it on your hard drive in a place where your file sharing software (which you only use for legal purposes) can find it (presumably by accident), then you're "making available" even if no upload happened.

Copying != copyright infringement

So, genius, explain to me how you upload something without making a copy.

Typically it is legal to make a copy of material under fair use [wikipedia.org] guidelines. Whether the copy is on a CD or on a server or some other medium is generally irrelevant. What is relevant is whether mens rea [wikipedia.org] can be proven and whether the use clearly falls outside fair use guidelines. Upload stuff to a website saying "Warez here - come and get it" and you likely are committing a copyright violation. But simply putting files on a server is not an automatic copyright infringement. The issue is a lot more complicated than that.

Both sides copy, and as you say, the act of copying without permission is illegal.

This statement could not be more wrong. Copying material is not an automatic copyright infringement and both case law [wikipedia.org] as well as legislation [wikipedia.org] have strongly established this fact. All copyright infringements require the act of copying but not all copying is an automatic copyright infringement.

Re:Infringing your own copyright

Undercover cops buy drugs in the course of performing their duties as a law enforcement officer and the state doesn't have to prosecute them for buying them.

Fixed that for ya.

Re:Infringing your own copyright

I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them.

You missed the point. The problem for the RIAA is that when they downloaded the files, they were authorized to download the files (as representatives of the copyright holders) and thus, because this was an authorized download it does not provide evidence of a copyright violation. It's really a catch-22 situation for the copyright holders.

Re:Infringing your own copyright

If I'm handing out copies of the latest Josh Grobin CD and I hand one to Josh Grobin himself (he's probably the only one who would take it) that doesn't suddenly make it okay for me to be handing them out, even to him. He didn't give me permission to distribute, I just happened to hand it to the one person who could give me permission.

I don't think your example is applicable. To make it closer to the real event: imagine that I offer to make copies of Josh Grobin's CD and the only person who asks for a copy is Josh Grobin. I stress "asks", because that is what happens with P2P. There is no evidence that anyone else received a copy, so a court has to assume that no-one else did receive a copy. Now, do you think that the copy that Josh asked for was unauthorized?

Re:Infringing your own copyright

The relevant question the court would ask is "Did you know it was Josh Grobin when you made the copy for him?".

Would a court ask this? I don't recall seeing intent in any copyright statues that I have read (not that I claim to be an expert on the subject of copyright). Essentially, what you are suggesting is that the court should say: "in the hypothetical case that the person requesting the file did not have permission, the defendant would have violated copyright". The problem is that courts don't make awards (or, should not) on the basis of hypothetical violations.

To use a car analogy, it's like being given a speeding ticket by a cop who states "had the defendant not seen me, he would have been speeding down this stretch of road, so we can presume that he is guilty".

Re:Infringing your own copyright

The part that bugs me is where Toder (defense lawyer) says that the plaintiff can't introduce evidence of the investigators downloading files from the defendant. According to TFA:

Those downloads, Toder said, cannot be considered unauthorized downloads because the RIAA authorized them.

I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?...

The reason undercover cops arent charged is because they are officers of the law, and are thus believed to be pursuing the upholding of the law. See entrapement [wisegeek.com] as it relates to undercover cops "selling" illegal drugs. Since the RIAA "Investigators", many of whom are not even licensed, they are not officers of the law, and thus should not face the same privilege. For similar reasons, setting up your own drug sting operation to help cleanup your neighborhood by trying to sell oregano will probably get you thrown in jail instead of any "customers" you might catch. The defense is arguing that if the investigators are not liable for downloading the content illegally, then the content must be authorized by the RIAA. In this case, its like they sent their own "Johns" out on the street to find prostitutes, and then rather than turning over their own Johns after the deed is done, only turn over the prostitutes, all while not being official law enforcement agents. They are overstepping their rights and should not be afforded the privilege they have assumed.

Tm

Re:Infringing your own copyright

I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?

Sharing music is not inherently illegal. Copyright violation only exists when a copy is made without authorization of the copyright owner or some special circumstances (fair use, media shifting, etc.). If a copyright owner or their agent transfers a song, no violation has occurred. Contrast with a drug deal which is always against the law.

Re:Infringing your own copyright

I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?

Because the criminal requirements are that if someone believes they are committing a crime, then they are. If there is a buy for drugs and it's flour, it's still a crime. If someone shoots into a trunk they previously locked someone in with the intent of killing them, it could be tried as attempted murder even if the person was moved from the trunk and was in no actual harm. However, civil cases are different. Most require that you get actual damage. If someone tries to break a contract and believes they did break a contract, they still aren't guilty of breaking it unless there is some harm to the other side. You can't sue someone if they didn't harm you.

If he "makes available" something, but no copies were made, then there was no loss. If he makes something available and the only person that makes the "illegal" copy is the copyright owner or their agent, then there was no loss. Without a loss, there can be no civil case.

Not defending the RIAA, but just pointing out something that seems illogical to me.

You have pointed out another reason why they are pressing hard for making all infringements, including incidental non-commercial infringement into crimes, rather than simply "illegal" (but requiring civil actions). There is a different set of rules for civil suits (not to mention the cost of prosecution) and they favor the RIAA if these are all criminalized.

Don't celebrate yet.

Even if the 'making available' argument doesn't stand under current law, you can expect attempted copyright infringement to be made illegal when congress gets back from vacation.

Brilliant

I think it's an indication that judges do read ABA journals, that word does get around, and that perhaps there is a hope that these tactics are being exposed for what they are, a colossal rort of the legal system for private gain. You can fool some of the people some of the time, and some of the people all of the time, but you can't fool all of the people all of the time, it appears.

Don't bother cheering. We're all screwed.

None of this means a damned thing if the RIAA succeeds in getting their private gestapo made into an arm of the Department of Justice. Remember, they are pushing a bill to create a Federal framework for billing the US Government for both civil and criminal actions using Federal officers to do their dirty work. Even if you don't download music, you're gonna pay through the nose in tax dollars and the loss of more civil rights as the government bureaucrats try to ram through new laws to "support their mission" - mandatory ISP snooping and filtering, legitimized abuse of due process, lower standards of evidence, and a grab bag of laws to "protect jobs" (that's the rationale being currently used to get this bill passed). We're setting ourselves up for an Orwellian nightmare of epic proportions if this nightmare passes.

Re:Mistrial? WTF

but to set aside a jury's verdict is fairly unamerican

Not when the judge in question gave an incorrect interpretation regarding a point of law to the jury that almost certainly affected the verdict. I think it's a sign of a pretty good judge when he has the balls to say he made a mistake big enough to warrant a do-over.

Re:Mistrial? WTF

I, personally, am an adherent to the principle of jury nullification.

As was John Jay, the first Chief Justice of the U.S. The really sad thing is that all jurors should already be aware of their absolute rights as arbiters of facts *and* the law, but peoples' knowledge of how their own government works is a joke nowadays.

Re:Mistrial? WTF

did you read the part where it said the verdict would be set aside because of bad jury instructions ... if the jury gave the wrong answer because they were asked the wrong question it should be set aside.

Mistrial is not a set-aside...

He's not saying that the Jury's verdict is wrong, he's saying that the decision was made on incorrect information. The fact that they based their decision on were wrong. If a Jury found a man guilty of murder but it turned out that the prosecution had hidden facts that would have exonerated the defendant, would you consider that "unamerican"?

Re:Mistrial? WTF

Look, I'm no fan of the RIAA, but to set aside a jury's verdict is fairly unamerican. A jury listened to the facts, contemplated the charges, and rendered a verdict.

They were essentially mis-instructed in the charges.

Setting that aside is something that courts should be loathe to do, and should only be done at the appellate level by seasoned, reasoned jurists.

Lawyers are officers of the court. They must act within the bounds of the court process. To give purposefully misleading information to the judge is outside what they are supposed to do. The judge is not and can not be an expert in everything. The lawyers in the case are supposed to bring up everything relevant, and the judge decides points of law and the juries points of fact. But, the judge decided a point of law incorrectly, essentially because the lawyers on one side lied to the judge. That is a violation of the process and should require a mistrial. The jury made a decision based on incorrect instructions. Thus the decision they made may have been correct based on their information, but may not have been correct if they were properly instructed. The judge gave them one last chance to convince him that the information provided to the judge was correct, and he indicated that he does not believe the instructions he gave the jury were correct, and thus he should declare a mistrial.

As for whether that's right or wrong or whatever, that's what's happening here, and well within the rules of order. It was started because the lawyers on one side misinformed the judge. And that's simply not allowed.

Re:lucky for her, really

since she was found to have used the same username for her file sharing app as she did for email and other websites, I think anyone who thinks she wasn't guilty of filesharing is being silly

I guess you're not familiar with the facts. There was ZERO evidence that she had used the "file sharing app". There was evidence that(a) her computer had been malfunctioning, and (b) someone had used a "file sharing app", and (c) that someone had used defendant's frequent user name. The techie from Best Buy testified that the computer was irretrievably corrupted and infected. I.e., all of the facts were completely consistent with a 'zombie' situation.