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The Courts Government The Almighty Buck The Internet News

RIAA's $222k Verdict Is Likely To Be Set Aside 224

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

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  • 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.

  • by Hatta ( 162192 ) on Monday August 04, 2008 @05:58PM (#24473463) Journal

    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 (Score:5, Insightful)

    by Nefarious Wheel ( 628136 ) on Monday August 04, 2008 @06:06PM (#24473563) Journal
    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.
  • by jrl87 ( 669651 ) on Monday August 04, 2008 @06:07PM (#24473581)

    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).

  • by OverlordQ ( 264228 ) on Monday August 04, 2008 @06:10PM (#24473611) Journal

    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.

  • by Anonymous Coward on Monday August 04, 2008 @06:15PM (#24473669)

    Simple. MediaSentry are not the police. However if the RIAA keeps losing court battles like this one I'm sure they will lobby to change that.

  • by Anonymous Coward on Monday August 04, 2008 @06:20PM (#24473739)

    So, genius, explain to me how you upload something without making a copy. I mean, are you seriously telling me that you were able to post a copy without first copying the post into the HTTP request, followed by Slashdot copying the post into its database?

    My understanding is that downloading has been ruled legal in a few countries (notably NOT the US) because the first copy was made on the uploading side.

    So sending a file would be illegal, as the first copy of the file created exists on the uploader's side.

    Unless you're suggesting that the uploader did nothing wrong but somehow a set of bytes that just so happen to be copyrighted material managed to arrive at the investigator's computer from packets marked as being from the uploader's computer.

    Somehow that doesn't seem very likely.

    Seriously, everyone knows that both the uploading AND the downloading are blatantly illegal. Don't kid yourself. Both involve making copies. First the uploader copies it into IP packets, then the downloader copies from the IP packets to reassemble the final file.

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

  • by Dancindan84 ( 1056246 ) on Monday August 04, 2008 @06:34PM (#24473877)
    The library makes copyrighted works available and they aren't at fault if someone violates copyright using one.
  • by dgatwood ( 11270 ) on Monday August 04, 2008 @06:37PM (#24473911) Homepage Journal

    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:Mistrial? WTF (Score:5, Insightful)

    by terrymr ( 316118 ) <<moc.liamg> <ta> <rmyrret>> on Monday August 04, 2008 @06:38PM (#24473929)

    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.

  • Re:strip them (Score:3, Insightful)

    by Kozar_The_Malignant ( 738483 ) on Monday August 04, 2008 @07:03PM (#24474153)
    An attorney we use is fond of saying that words and punctuation have to mean something, or else there is no point in writing things down in laws and contracts.
  • by The Breeze ( 140484 ) on Monday August 04, 2008 @07:04PM (#24474155) Homepage

    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.

  • by notamisfit ( 995619 ) on Monday August 04, 2008 @07:06PM (#24474169)
    This is a civil case, not a criminal one. Unlike criminal liability, civil liability can be waived by the offended party (the RIAA or the companies it represents).
  • 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 (Score:2, Insightful)

    by Anonymous Coward on Monday August 04, 2008 @07:11PM (#24474215)

    I, personally, am an adherent to the principle of jury nullification. I think that's the point of having a jury in the first place. A judge is far more qualified to appraise the "legality" of a case than a legal lay-person. Juries should be instructed to exercise their own judgment taking into account their own values, the circumstances unique, and the legal arguments that take place between the lawyers as arbitrated by the judge. In that order!

    Of course, in America, if anyone tries to make a jury aware of this inherent right during the course of a trial, it is grounds for a mistrial. Look it up.

  • by falconwolf ( 725481 ) <> on Monday August 04, 2008 @07:31PM (#24474389)

    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?

    As the subject line says, you can't infringe on your own rights. The investigators worked for the copyright owners and had their permission. The police, being part of government, has a Get Out of Jail card.


  • by Danse ( 1026 ) on Monday August 04, 2008 @07:37PM (#24474443)

    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.

    Yep. Some of the new legislation they're trying to push through makes the DMCA look like the "Free Kittens and Ice Cream For Everyone Act". As long as our Congress is up for sale and people aren't paying attention to copyright legislation, we're going to keep getting screwed time after time. I hardly ever see anything about copyright legislation in the mainstream media, except when they're talking about how the mean nasty pirates are going to have the poor recording and movie industry execs sending their kids to school wearing last year's fashions. NPR does some decent interviews from time to time, but that's about it.

  • by whoever57 ( 658626 ) on Monday August 04, 2008 @07:37PM (#24474453) Journal

    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?

  • by falconwolf ( 725481 ) <> on Monday August 04, 2008 @07:48PM (#24474549)

    Unless they authorized the uploader to distribute the files, then it isn't a legal upload, no matter who is downloading it.

    That's the line the MafiAA uses, however it is not illegal to make available, which is what the uploader is doing. You have the right to swing at me but your right ends where my nose begins.


  • by falconwolf ( 725481 ) <> on Monday August 04, 2008 @08:00PM (#24474659)

    Copyright violation only exists when a copy is made without authorization of the copyright owner or some special circumstances

    The copying isn't illegal, it's giving the copy away or getting the copy without also getting the original that's illegal.


  • by Pseudonym ( 62607 ) on Monday August 04, 2008 @08:11PM (#24474755)

    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.

  • by whoever57 ( 658626 ) on Monday August 04, 2008 @08:21PM (#24474853) Journal

    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".

  • by lysse ( 516445 ) on Monday August 04, 2008 @08:39PM (#24474989)

    Look on the bright side. Western society is in terminal decline anyway. When archaeologists of the next great civilisation look back at us, the RIAA's efforts to turn corporate policy into federal law are going to be seen as something of a barometer... if they are even remembered at all.

  • Re:Mistrial? WTF (Score:5, Insightful)

    by AK Marc ( 707885 ) on Monday August 04, 2008 @08:40PM (#24475001)
    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.
  • by gnasher719 ( 869701 ) on Monday August 04, 2008 @08:51PM (#24475055)

    Don't be silly, it was quite obvious she was guilty as charged, the only grossly unfair thing was the punishment.

    She was charged of having committed copyright infringement in two different ways. The first charge was incorrect and only happened because the RIAA's lawyers lied to the court, and the evidence for the second charge is most likely incorrect as well.

  • by Lobster Quadrille ( 965591 ) on Monday August 04, 2008 @09:32PM (#24475297)

    No, I'm pretty sure that the act of purchasing illegal drugs, is also illegal, because you are now in possession of said drugs.

    Posession and selling illegal drugs are both illegal, but the penalties for selling are a lot more severe, which is why given the choice, the cops would rather bust the guy for the latter.

  • by Jane Q. Public ( 1010737 ) on Monday August 04, 2008 @09:57PM (#24475429)
    Quote: "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."

    It is actually the other way around: the defense is arguing that SINCE the downloading was previously authorized by the RIAA as part of the investigation, no infringement took place! You can't illegally copy your own goods, or goods that you are authorized to copy by the copyright holder!
  • by Lehk228 ( 705449 ) on Monday August 04, 2008 @11:32PM (#24476027) Journal
    the rightsholder initiated the transfer, the theory is that by requesting the transfer they implicitly authorized those copies, just like your boss can't fire you for stealing company secrets when he asks you to bring a CD of trade secret manufacturing data to a subsidiary's branch office.
  • by Banzai042 ( 948220 ) on Tuesday August 05, 2008 @01:17AM (#24476555)
    I'm honestly not sure they could ever successfully bring a lawsuit against somebody for downloading only. INAL, but as I understand it anybody who purchases a CD (or other physical media) is legally allowed to download a song on that CD because they have already paid for a license of that song. Therefore the RIAA would have a difficult time proving anybody didn't have a right to download a song at the time that they did. All it would take is the defendant holding up a copy of the CD that they purchased in front of the court and the RIAA's case goes out the window. The RIAA can't even prove when the defendant purchased the CD because if it is purchased with cash there is no trail connecting the defendant with a specific purchase event.
  • by Zironic ( 1112127 ) on Tuesday August 05, 2008 @03:45AM (#24477175)

    Fair use gives you the right to make backup copies, downloading the song from the internet is the same as making a backup copy.

  • by cliffski ( 65094 ) on Tuesday August 05, 2008 @04:20AM (#24477291) Homepage

    you don't understand. this is slashdot. it doesn't matter how blatantly guilty she is, we have to find a way to twist logic to make piracy seem ok.

  • I suggest that their PR-dollars would be better spent by trying to compete within their purported area of expertise.

    Did you say "compete"? What's that? That's not a word they're familiar with.

  • by iceeey ( 842254 ) on Tuesday August 05, 2008 @06:20AM (#24477763)

    So ones only option is to vote, ...

    That's not your only option. Don't buy music from RIAA labels or see/rent/buy movies from MPAA member companies, or any other media company involved in tactics like this. Speak with your wallet. And tell your friends to do the same. If they have no cash flow, they have no lobbying power. Buy independent music/movies instead and support the artist.

  • by plantman-the-womb-st ( 776722 ) on Tuesday August 05, 2008 @08:14AM (#24478285)

    Seriously, everyone knows that both the uploading AND the downloading are blatantly illegal.

    These are not criminal matters, they are civil. Copyright infringement is not illegal. It may cause damages to the party infringed upon, but that party must pursue the matter in civil court. Seriously, walk into a police station holding a burned CD full of MP3s and demand to be arrested. They will laugh at you, because it is not a crime.

  • by TheRaven64 ( 641858 ) on Tuesday August 05, 2008 @08:28AM (#24478375) Journal
    I would defend people being prosecuted under unjust laws. I would defend a petty thief I knew was guilty in a country where the penalty was having his hands cut off, for example.

    I'd like to recount a little story of something that happened last week. Someone decided to post a PDF copy of my book (the one available from Safari Books Online) to a public mailing list. It's pretty hard to find a more blatant example of copyright infringement. Under US law, he'd be liable for a statutory penalty multiplied by the number of counts (the number of subscribers to the mailing list, plus the number of people who download it from list archives (it's been taken down from the official one, but you can still find it on places like GMANE). Since the copyright pages are still in tact, it's pretty easy to argue wilful infringement, which means that the statutory damages are up to $150,000 per work (not, I believe per copy).

    $150,000 is almost certainly more than the book will make in total profits. A fine somewhere under $1,000 and being told not to be an ass-hat would make sense in this case. Probably a warning to his employers that they can't trust him with any commercially-sensitive information would be a bigger punishment.

    Even though I, personally, could directly benefit from these laws to a significant degree, I would vote against them because they undermine the entire legal system by making the punishment entirely disproportionate to the crime.

  • by The_reformant ( 777653 ) on Tuesday August 05, 2008 @08:32AM (#24478405)
    But how do they know what they';re downloading til after they make the copy. I could make a file which i license at 1 beeeelion dollars then make it available under a name mangling of the RIAAs latest pop sensation. What happens then? If they have it their way then they are opening everyone to unlimited liability for downloading anything.

    Which is retarted.
  • by sjbe ( 173966 ) on Tuesday August 05, 2008 @09:06AM (#24478649)

    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 [] 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 [] 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 [] as well as legislation [] have strongly established this fact. All copyright infringements require the act of copying but not all copying is an automatic copyright infringement.

  • by sjbe ( 173966 ) on Tuesday August 05, 2008 @09:36AM (#24478981)

    Undercover cops buy drugs and the state doesn't have to prosecute them for buying them.

    Police officers are sanctioned by the government to enforce the law. The RIAA and other private organizations do not (and should not) share the same legal protections as a police officer sanctioned with enforcing the laws. The act of trafficking [] schedule 1 controlled substances [] is always illegal for private citizens. Making a copy of copyrighted material often is entirely legal under fair use doctrine []. Furthermore selling controlled substances without a license is a felony whereas selling copyrighted material without any special license is frequently legal.

    If the plaintiff had assistance from legally sanctioned law enforcement authorities who, in the process of a properly conducted investigation, concluded that there was reasonable grounds to suspect attempted copyright infringement then it would seem more likely to be acceptable as evidence. But just because some private investigator found "evidence" doesn't mean a court will or should automatically allow it to be presented.

    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 a private citizen cannot manufacture a crime against another private citizen. Without getting into the particulars of any given case is is easy to think of situations where the defendant was not attempting to commit copyright infringement. Making copies of copyrighted material is not prima facia [] evidence of copyright infringement.

  • by sjbe ( 173966 ) on Tuesday August 05, 2008 @10:37AM (#24479771)

    The GP did specifically write "without permission". Under any reasonable readings of that expression,...

    Don't confuse reasonable readings with legal interpretations. Fair use copying does not, under any circumstances I am aware of, require permission from the copyright holder. The GP post you refer to is at best ambiguous on this point and I see no reason why anyone should assume your broad interpretation of "without permission" since permission is not necessarily required.

  • by krondell ( 1147917 ) on Tuesday August 05, 2008 @12:43PM (#24481961) Homepage
    Ah, but isn't it? That's the crux of the RIAA's problem - that digital data is perfectly reproducible. What's the difference between downloading a ripped mp3 and doing it yourself if the resulting files are identical? Effort?

The amount of time between slipping on the peel and landing on the pavement is precisely 1 bananosecond.