Music Download Case Goes to Jury

[Teutatis]

I am posting this in the news section because the same thing directly applies to video downloads.



http://ap.google.com/article/ALeqM5gUiUM7D5ibA1Nf5u08i0_RTmq1nAD8S2I2E00

Music Download Case Goes to Jury
By JOSHUA FREED – 2 hours ago

DULUTH, Minn. (AP) — An attorney for six major music companies urged a federal jury Thursday to find a Minnesota woman liable for damages for illegally downloading and sharing music online, activity he said has gnawed at the industry's bottom line.

Record companies have filed some 26,000 lawsuits since 2003 claiming their music's been misused, but the case against Jammie Thomas, a mother of two from Brainerd, is the first to go to trial. Many other defendants settled by paying the record companies a few thousand dollars.

Regardless of how the first trial of a person accused of illegally sharing music online turns out, a spokesman for a record industry group said companies plan to keep suing listeners.

Richard Gabriel, the lead attorney for six companies that sued Thomas, didn't ask jurors to award a particular dollar amount or to find Thomas willfully infringed on copyrights.

"I only ask that you consider that the need for deterrence here is great," he said.

Thomas had testified that she did nothing wrong. Her attorney, Brian Toder, argued Thursday that music companies presented plenty of technical evidence but never proved that "Jammie Thomas, a human being, got on her keyboard and sent out these things."

"We don't know what happened," Toder told jurors. "All we know is that Jammie Thomas didn't do this."

Gabriel called such assertions "misdirection, red herrings, smoke and mirrors."

The record companies' evidence included testimony that sought to link Thomas to a Kazaa file-sharing account that held the copyrighted material. Thomas testified that she never had a Kazaa account, but acknowledged giving conflicting dates for the replacement of her computer hard drive — something Gabriel suggested was done to cover her tracks.

The companies are seeking damages regarding 24 songs the trial focused on, not the 1,702 that were described in their complaint.

The 12-member jury must agree unanimously. If they decide Thomas infringed on the record companies' copyrights, they will then consider whether she did it willfully — a distinction that could drive maximum damages from $30,000 per song as high as $150,000 per song.

U.S. District Judge Michael Davis ruled Thursday that the record companies did not have to prove songs on Thomas's computer were transferred to other users for her to be found liable. The act of making the files available would constitute copyright infringement, he said.

Cary Sherman, president of the Recording Industry Association of America, which coordinates the lawsuits, said companies will keep filing them.

"We think we're in for a long haul in terms of establishing that music has value, that music is property, and that property has to be respected," said Sherman.

Sherman said Wednesday night that he's surprised it took this long for one of the industry lawsuits to go to trial.

After four years, he said, "it's become business as usual, nobody really thinks about it. This case has put it back in the news. Win or lose, people will understand that we are out there trying to protect our rights."

The record companies involved in the lawsuit are Sony BMG, Arista Records LLC, Interscope Records, UMG Recordings Inc., Capitol Records Inc. and Warner Bros. Records Inc.

[jagabo]

Guilty:

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

Ars Technica has been following this pretty closely with day by day summaries.

[ntscuser]

I am posting this in the news section because the same thing directly applies to video downloads.

The case revolved around making copyright files available for others to download, not about downloading itself. It's an important distinction

[Teutatis]

I am posting this in the news section because the same thing directly applies to video downloads.

The case revolved around making copyright files available for others to download, not about downloading itself. It's an important distinction

I think making files available for others to download is covered under "downloading". Whether the defendant made copyrighted files available for others or did anything at all illegal has yet to be proven

[Teutatis]

Here is the verdict.

http://abcnews.go.com/Technology/story?id=3691170&page=1

[ntscuser]

I am posting this in the news section because the same thing directly applies to video downloads.

The case revolved around making copyright files available for others to download, not about downloading itself. It's an important distinction

I think making files available for others to download is covered under "downloading".

No, it is what most people would call "uploading".

Whether the defendant made copyrighted files available for others or did anything at all illegal has yet to be proven

Did you not read the second post in this thread? According to the jury she did.

[lordsmurf]

The result of 12 dipshits in one room, charged with an important decision.

[redwudz]

A jury in the US properly works with only the information that is given to them and what they are told to consider. Nothing else. If there's a problem, it's usually with the information they are asked to consider, or the instructions given by the judge, or a flaw in the information itself. A jury normally has only to make black and white decisions from the judges instructions. If they are given the proper info, there is only a simple choice. I never blame the jury, they are just a part of the system.

And this case is subject to appeal on both the amount awarded and the jury's decision, and the judges instructions, and possibly the law itself. If there were mistakes made.

You would need to read the whole transcript and have some legal expertise to second guess any of this properly. JMO.

[jagabo]

Juries in the USA are allowed to make decicions based on anything they want. Of course, the judge doesn't tell them that.

[bendixG15]

The result of 12 dipshits in one room, charged with an important decision.

Sorry to hear that from you ......

[RLT69]

Here's another article with more details on the evidence in the case:

http://www.duluthnewstribune.com/51559.htm

But if anybody read the Ars article the evidence is pretty good:

"Gabriel ran through the screenshots showing the user tereastarr@KaZaA and then showed other instances of her using the same screenname online. "All the fingers in this case point to Jammie Thomas," he argued. He ticked off the evidence of the MAC and IP addresses, a password-protected PC that only the defendant had access to, use of the tereastarr nickname across several services and e-mail accounts across the years, and the "eclectic musical tastes" of Thomas that he said were reflected both on the hard drive and in the shared folder. "

Let's review:

Her screenname used in kaza and the same name used elsewhere.
Her IP address.
Her MAC address.
Password protected computer.
Files on her computer.

That's a pretty open and shut case. Where's the reasonable doubt?

Look her computer did it. What her lawyer should have done was present evidence that SOMEONE hacked into her computer. If you can show that, she would have gotten off.

Don't blame the jury. Blame the lawyer.

[SCDVD]

I am posting this in the news section because the same thing directly applies to video downloads.

The case revolved around making copyright files available for others to download, not about downloading itself. It's an important distinction

File sharing methods like bittorrent make files available for others to download. While downloading, portions of the file that have already been downloaded are simultaneously being uploaded to others on the same bittorrent. That is "making files available for others to download".

[ntscuser]

I am posting this in the news section because the same thing directly applies to video downloads.

The case revolved around making copyright files available for others to download, not about downloading itself. It's an important distinction

File sharing methods like bittorrent make files available for others to download. While downloading, portions of the file that have already been downloaded are simultaneously being uploaded to others on the same bittorrent. That is "making files available for others to download".

Which is why people shouldn't use file sharing applications to "download" copyright material. It is illegal in almost every country in the world and sooner or later they will be caught.

[lordsmurf]

The result of 12 dipshits in one room, charged with an important decision.

Sorry to hear that from you ......

I find a jury asking a 30-year-old mom to pay $9,000 apiece for music to be as vulgar as the ideas of Osama Bin Ladin himself.

She's being financially and emotionally raped by the RIAA.

If she had stolen some CDs from the store, which is what the RIAA always wants to compare it to, she'd have a misdemeanor, and most likely would get away with a fine of $1,000, community service, and probation.

The fact that 12 people can agree with corporate rape is an abomination and reminds me of "mob justice".

[ntscuser]

If she had stolen some CDs from the store, which is what the RIAA always wants to compare it to, she'd have a misdemeanor, and most likely would get away with a fine of $1,000, community service, and probation".

She made it possible for thousands of people to steal the equivalent of a CD from a store, in this case 24 titles which hadn't even been released yet.

"If you can't do the time, don't do the crime"

[jagabo]

She made it possible for thousands of people to steal the equivalent of a CD from a store

Those people are responsible for thier own crimes.

[CBC]

Kinda like asking to bust the coke users, but not the dealer who sold it to them.

[dadrab]

She made it possible for thousands of people to steal the equivalent of a CD from a store, in this case 24 titles which hadn't even been released yet.

Well, if the tunes haven't been released to stores yet, where'd she get them?

I submit a master disc was stolen and distributed pre-release date. Anybody going after the real thief? No, because it's a pain in the ass. It might involve a real investigation. It might require that some folks get off their collective ass and ask some hard questions to those in post production.

I have NO sympathy for the record companies. There are hundreds of business models I've read (and even written) over the last 10 years that would legitimize downloading for a reasonable price. The companies can't live with a low cost model to the consumer and instead opt for their $.99/song load of crap, which, in case you haven't been counting, will easily add up to the price of the retail disc if you buy all the tracks.

Which segways nicely into my next bone of contention. When CDs were first released (what--15 years ago, or so by now?) they were $14.99, or thereabouts. How much do they cost today at the same brick & mortar we've been shopping in for low these last 15 years. By damn, it's the same $14.99. What's happened to the drop in prices that's usually associated with technology coming of age? What's happened to cost reductions that are normally associated with manufacturing techniques being honed and refined? Where are the dollar savings that naturally follow as distribution and packaging technologies grow to meet demand? Been anymore cost reductions to our heroes in the record industry? You'd best believe there has. Where are the savings to the consumer?

I know where...

[jman98]

I find a jury asking a 30-year-old mom to pay $9,000 apiece for music to be as vulgar as the ideas of Osama Bin Ladin himself.

She's being financially and emotionally raped by the RIAA.

If she had stolen some CDs from the store, which is what the RIAA always wants to compare it to, she'd have a misdemeanor, and most likely would get away with a fine of $1,000, community service, and probation.

The fact that 12 people can agree with corporate rape is an abomination and reminds me of "mob justice".

Well, I don't know if any of you have served on a jury in the USA, but I have. It's not pretty. Few jury members are well educated. I work in IT and was the only guy on the jury with such experience. Most of the people on the jury didn't know how to do anything more complicated than opening email on a PC. Fortunately we acted on a criminal case that had nothing to do with technology.

Juries often make crazy decisions. The insane and infamous McDonalds coffee case comes to mind from more than a decade ago where a lady got awarded almost $3 million because her coffee was "too hot" and it burned her when she accidentally spilled it on herself. So when you have:

1)juries that don't understand the issues they are deciding
2)people that I call "rules freaks' who are obsessed with law and order and punishing those who break the rules
3)a past history of juries in the USA awarding insane amounts of money

then this kind of thing is not surprising at all.

[RLT69]

Like I said - BLAME THE LAWYER!

Four reasons why the RIAA won a jury verdict of $220,000
http://www.news.com/8301-13578_3-9791764-38.html?tag=nefd.blgs

"The key difference is that the RIAA offered two suggestions, which would eventually become Jury Instructions 14 and 15, which the defense left out. Once U.S. District Judge Michael Davis sided with the RIAA on that crucial point, which he did, and adopted its suggestions, the recording industry had a much easier time of it. Those two crucial instructions are:

JURY INSTRUCTION NO. 14: The act of downloading copyrighted sound recordings on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive reproduction right.

JURY INSTRUCTION NO. 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.

3. "Making available." Jury Instruction 15 is more important. It says that the RIAA doesn't need to offer any evidence that rapacious Kazaa users actually downloaded songs from Thomas' computer. All they need to do is claim that Thomas left the songs in a publicly accessible directory where they could have been downloaded. Big difference. "


Why $9,000 per song:

"4. Copyright law is harsh. Once the jury decided that Thomas was behind the IP address in question, there was almost certainly going to be a stiff fine--of at least $18,000. In this case, the jury was given these instructions:

JURY INSTRUCTION NO. 22: In this case, each plaintiff has elected to recover "statutory damages" instead of its actual damages and profits. Under the Copyright Act, each plaintiff is entitled to a sum of not less than $750 or more than $30,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just. If, however, you find that the defendant's conduct was willful, then each plaintiff is entitled to a sum of up to $150,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just.

In determining the just amount of statutory damages for an infringing defendant, you may consider the willfulness of the defendant's conduct, the defendant's innocence, the defendant's continuation of infringement after notice or knowledge of the copyright or in reckless disregard of the copyright, effect of the defendant's prior or concurrent copyright infringement activity, and whether profit or gain was established.

In this case, the jurors chose $9,250 in damages for each of the 24 songs, or $222,000. They could have gone as low as $18,000 in total or as high as $720,000, and seemed to want to pick something closer to the middle. "

As redwudz pointed out, unless you had the jury instructions and the transcript you can't make an informed comment on why the jury awarded the RIAA $220,000. The defense lawyer did not do his job. The jury instructions were plain. It was pretty easy to award damages.

[SCDVD]

Flawed jury instructions are a frequent basis for appeal. I agree with many of the criticisms that have been made about juries. It's just that all the other systems of justice are worse. Yeah I know about dummies etc. on juries but I also know about what happens when too much power resides in the hands of government "functionaries".

The reality is that the RIAA et al have one objective. They want you to be terrified about illegal downloads. There's nothing like the absolute destruction of a few guinea pigs to accomplish this.

[TJK1911]

The reality is that the RIAA et al have one objective. They want you to be terrified about illegal downloads. There's nothing like the absolute destruction of a few guinea pigs to accomplish this.

Cary Sherman, president of the Recording Industry Association of America, which coordinates the lawsuits, said companies will keep filing them.

"We think we're in for a long haul in terms of establishing that music has value, that music is property, and that property has to be respected," said Sherman.

Okay, music has value but not that much value. At most these cases should be handled in small-claims court. They're hammering these little people to scare everyone, because they can't file millions of claims against all the individuals involved which is what they should be doing if they want to be "fair".

[lordsmurf]

She made it possible for thousands of people to steal the equivalent of a CD from a store

Those people are responsible for thier own crimes.

Bingo.

[SCDVD]

TJK1911, I agree with your point; it certainly isn't right or fair. But the RIAA has no desire to be fair. They want to use terror to intimidate people. They don't care if someone collapses and bleeds to death on the courtroom floor. They don't even care about the money they may get from a lawsuit. They want YOU to be terrified about downloading.

[ntscuser]

TJK1911, I agree with your point; it certainly isn't right or fair. But the RIAA has no desire to be fair. They want to use terror to intimidate people. They don't care if someone collapses and bleeds to death on the courtroom floor. They don't even care about the money they may get from a lawsuit. They want YOU to be terrified about downloading.

And this is "bad" because...?

[SCDVD]

TJK1911, I agree with your point; it certainly isn't right or fair. But the RIAA has no desire to be fair. They want to use terror to intimidate people. They don't care if someone collapses and bleeds to death on the courtroom floor. They don't even care about the money they may get from a lawsuit. They want YOU to be terrified about downloading.

And this is "bad" because...?

Because it is out of scale with the infraction committed by the person accused. In actual fact, the RIAA is exploiting her for their own good. Exploitation by trial is "bad". What if it happened to you? What if the constabulary and courts where you live got into their heads that reading a magazine more than once was a crime. Their contrived version of copyright law says that you are entitled to only one reading. Each successive reading of the magazine requires that a new copy be purchased. But some dick peeking into your window late one evening found you reading a magazine for a second time. And you, YOU dastardly criminal are hurting "their" revenue stream. So they drag your lame ass into court and sue you for 500,000 pounds to make sure your neighbors are too frightened to ever commit such a serious crime.

And this is "bad" because...?

Strain real hard and I bet you can figure it out.

[ntscuser]

TJK1911, I agree with your point; it certainly isn't right or fair. But the RIAA has no desire to be fair. They want to use terror to intimidate people. They don't care if someone collapses and bleeds to death on the courtroom floor. They don't even care about the money they may get from a lawsuit. They want YOU to be terrified about downloading.

And this is "bad" because...?

Because it is out of scale with the infraction committed by the person accused. In actual fact, the RIAA is exploiting her for their own good. Exploitation by trial is "bad". What if it happened to you? What if the constabulary and courts where you live got into their heads that reading a magazine more than once was a crime. Their contrived version of copyright law says that you are entitled to only one reading. Each successive reading of the magazine requires that a new copy be purchased. But some dick peeking into your window late one evening found you reading a magazine for a second time. And you, YOU dastardly criminal are hurting "their" revenue stream. So they drag your lame ass into court and sue you for 500,000 pounds to make sure your neighbors are too frightened to ever commit such a serious crime.

And this is "bad" because...?

Strain real hard and I bet you can figure it out.

Well, as a former magazine publisher that sounds like a pretty good idea to me but what I was specifically asking is why is it "bad" that people be terrified about downloading copyright material without consent?

[SCDVD]

Well, as a former magazine publisher that sounds like a pretty good idea to me

Well at least you are a "former". I have already clearly answered your question and I have no desire for "recreational equivocation" so enough said.

[lordsmurf]

but what I was specifically asking is why is it "bad" that people be terrified about downloading copyright material without consent?

So you approve of terrorism?

[ntscuser]

but what I was specifically asking is why is it "bad" that people be terrified about downloading copyright material without consent?

So you approve of terrorism?

So you approve of warez?