Friday, October 05, 2007

My Comment on the Jury Verdict in Virgin v. Thomas

A verdict of $222,000.00, for infringement of 24 song files worth a total of $23.76?

In a case where there was zero evidence of the defendant having transferred any of those files?.

It is one of the most irrational things I have ever seen in my life in the law.

If the Judge doesn't set aside the verdict sua sponte, I expect there to be motion practice to set aside the verdict, based on its obvious unconstitutionality and numerous other reasons, and if that fails I expect there to be a successful appeal.

It is an outrage, and I hope it is a wakeup call to the world that we all need to start supporting the defendants in these cases, and the attorneys who are sacrificing so much to represent them. And the support cannot be with words, it must be with check books. And it cannot be next year, it must be now.

All the business people who make a living from the vibrancy, democracy, and freedom of expression which is the internet, need to get behind the RIAA's victims; if they do not, the world in which they hope to thrive and prosper will disappear rapidly.

The RIAA ghouls smelled blood in Duluth, and I guess they were right.

But it isn't over.

-R.B.



Commentary & discussion:

All Things Digital
Michael Geist
Fergie's Tech Blog
The Atlantic (Daily Dish by Andrew Sullivan)
Content Agenda
Download Squad
Computer Shopper
AzOz





Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs




22 comments:

StephenH said...

Do you beleive that this will be appealed, or do you beleive that Jammie Thomas will simply declare bankruptcy? $222,000 is a lot of money for the average individual to pay. That would buy a small house in some areas.

Dragon said...

We should let the RIAA know this is rediculous. I propose a boycott on buying their music.

For most of the people that download these songs for free is because they can't afford to go out and buy the cd's they want at the price that is charged for them.

I suspect if people suddenly stopped buying the cds altogether, the prices on these cds might go down.

Or the RIAA would go after people for more money to make up their losses from the boycott.

mickey said...

Ray,

I have a question about the final hour jury instruction that was changed. Given that the judge refused to allow Ms. Thomas' attorney to question the RIAA about the making available argument, do you know whether her attorney objected to the instruction because it was prejudicial to his client? If he didn't, can you think of any strategic reason for not doing so? I'm saying prejudicial based on the fact that he wasn't allowed to question anyone about the subject matter of the added jury instruction.

I have worked with at least five litigators previously, and they all did things differently, and had different ideas about strategy, which is why I'm asking. I assume her attorney had a reason for not pointing out to the judge that he was unable to question anybody about the subject matter of the disputed jury instruction (assuming he didn't). I was just wondering what your take on it was. I focus on that jury instruction, because I suspect that it was key to the verdict, given how easy that one instruction made it to find that she had infringed.

Thanks.

Just A Texas Girl said...

Ray,

As someone who is currently fighting their own lawsuit against the RIAA, I want to say thank you for such up-to-the-minute coverage of this trial. I can only imagine what Jammie was feeling because I have been riddled with anxiety and fear all week.

I almost feel betrayed in some way. From the moment I was served with the lawsuit, I have researched, talked to lawyers, etc, and everything I have heard and read says the same thing- the RIAA has no case, period. So for judges in some cases to allow this to continue and most shockingly, for a jury of 12 American citizens to subject this woman to a $220K judgement to multi-billion dollar companies is beyond comprehensible. I understand that this particular case is far from over with appeals and what not, but from the moment I read about the verdict I have contemplated ending my own lawsuit. Be it through bankruptcy or some obscene judgement amount, I just want it to be over.

I thought when I took this on, I was courageous enough to battle this cartel, and now, knowing that there are years and years left of this stress and anxiety, I want out. I want to be able to wake up at least one day and not have to worry about my future, my finances, whether or not my lawyer is on top of things, or being harrassed by multi-billion dollar companies.

Dragon - I appreciate your support and wanting to boycott the riaa. however, it's been tried before. www.boycott-riaa.com Boycotting their products is not going to work because there will always be pre-teens and kids wanting their hands on a CD by the next disney channel phenomenon. And there will always be fans that will support their favorite bands no matter what.

The concept of the world wide web is centered around "making available" information that was previously harder to obtain. The internet is made up of people "sharing" and "distributing" information for learning purposes. Whether it's art, music, literature, videos, news articles, emails, etc - it was designed to share information. People need to realize the implications of what the RIAA is trying to do - change laws so that our rights as Americans are controlled by big business.

Like Ray said, it's going to take monetary donations to the cause, letters to congress, and spreading the word about the RIAA's terror campaign. there are so many people walking around that have no clue any of this is going on. I was one of them, until I was sued. If you aren't able to make a monetary donation, at least tell someone you know, or don't know about these lawsuits. So many people think it won't happen to them and don't know someone personally who is being sued. Spread the word so that these defendants who have sacrificed so much still have a voice, even if main stream media refuses to hear it.

So, again, thank you Ray for being such a pioneer and steadfast figure in this fight against the RIAA. Sometimes I think your blog is the only thing I can trust. And many thanks to Jammie, Pattt, Debbie, and the rest of the people fighting back.

Daljit said...

The world is dark. I hope RIAA look in the mirror and see her children. No not the mother, but the company RIAA. I'm disgusted. $23.00 for christ's sake. The record labels make multi-million's of dollars for rap artists who've dealt drugs all their life. It is no surprise they target single mothers. RIAA are terrorists.

mhoyes62 said...

Based on what has been reported of the trial, I think the jury got lost in the "techno-babble" and things that were said that are obvious to computer people may have just sounded like nit picks to the jury.

As for boycotts, you can do that, but like Ray says, we really need to have a fund set up to help defend against actions like this so that a set of case law can be created and the erosion of fair use and our rights can be upheld.

Micahel

Jersey Cynic said...

I wish more artists would sell their music directly.

for example - when I go to hypem.com (I am a 50 year old music addict who works overtime trying to feed her kids good tunes) I get directed to hundreds of songs I can "sample". If I like the artist, all of these blogs direct me to itunes/amazon/or wherever, to buy their music. I can't afford to pay 15 dollars for the entire album and won't if I only like a song or 2. At least I can (most of the time) buy the song for a buck at itunes. and BLESS ME FATHER FOR I HAVE SINNED -- if I can't get the tune there, being the addict that I am, I must resort to other means!!! So There!! I've done what all the big boys do - confessed my sins. I won't ever do it again. My computer spoke!! I should be safe from the RIAA goons right?

Since we live in "Clear Channel Airspace" I don't allow the kids to listen to the radio, but Of course they do - no way around that. They agree that most of the music sucks. (I'm pretty sure it's a conspiracy.) They would not know this if I didn't provide them with music that I have "shared" with other music addicts. It's one of the hardest jobs and takes up a lot of my time -- what's a mother to do??!

I think the fact that Brittney is the best that this country can give us as a music goddess, says it all about the RIAA!!

Can't these artists let us buy music directly from their own site. Can't they record a CD without signing over their life to a recording industry guy in a suit? They can't possibly be getting the cut they SHOULD BE getting from CD sales.

Russell said...

Dragon,

In a rational world, reduced sales would result in reduced prices to increase volume. Walmart does quite well with that, thank you.

But we are talking about the the RIAA, who have their own little world they live in. They recognize that sales are down, but that has to be because of everything but an outmoded business model, crappy product and premium prices.

They just sued the crap out of a prime customer (how many CD's had she bought?), do you truly think a boycott is going to bring sanity?

Scott said...

StephenH: Where she lives, $222,000 would buy a new four-bedroom house with a detached two car garage on five acres of land.

pepper said...

dragon


http://www.boycott-riaa.com/news/

They are in strong support of Ray's site here and the boycott riaa movement. And here's hoping Jammie will appeal this case!

Ghost coins said...

It is a sad day when an organization cannot prove that an illegal transaction was made, but, simply because the material is available, can continue on with a case and rake in several hundred-thousand times the value of the losses. The judicial system has become the craps table for the RIAA. They happened to hit it big on this one, but how long will it take before they have nickel and dimed themselves back into a hole?
What does bother me is that this was an opportunity to really dig into the RIAA on a legal level, bring out the experts, and challenge the blatantly overbearing and heavy-handed interpretation of the DMCA by the RIAA. I understand that sort of wordplay and extrapolation of the law is more in tune with the halls of Washington DC, but for the sake of legal precedence something should have been brought forward.

Mike said...

Given that a substantial part of the defense was that the sound recordings found on her hard drive were copied from her CD's, where was the jury instruction on fair use or the Audio Home Recording Act?

I wonder if a more aggressive defense posture - something more than "Someone else did this and we don't know who" and shrugging - would have given a different result in this case.

Ray Beckerman said...

ghostcoins, this remark you made is meaningless to me:

"What does bother me is that this was an opportunity to really dig into the RIAA on a legal level, bring out the experts, and challenge the blatantly overbearing and heavy-handed interpretation of the DMCA by the RIAA."

Who was going to pay Mr. Toder to do that? Who was going to pay for the experts?

Please read my comment again, the part where I said:

"the support cannot be with words, it must be with check books. And it cannot be next year, it must be now"

Ray Beckerman said...

... and this case has nothing whatsoever to do with the DMCA.

Randall said...

Ray,

I don't understand why Dr. Jacobson was even able to testify since he fails all of the Daubert factors. Why did he get to take the stand at all? Did the defendant's lawyer fail to remove him as an expert witness? If he wasn't an expert witness, why was he testifying?

Haddock said...

"the support cannot be with words, it must be with check books."
You're right!!
but to who, to what, and what for?
UNITY MAKES STRENGTH.
We need an internet user association dedicated to the defense of the right of sharing information on the web. As any consumer association, it would be funded by subscriptions.
Who would subscribe? potentially millions of persons when they know about such an association which is going to defend their rights and eventually turn the law to the side of freedom.
Does it already exist? If yes, it needs more advertisement. If not, the question is: who is going to create it?

Caladil said...

Now that a verdict has been reached, is it too late to challenge the constitutionality of the copyright laws on appeal? In other cases we seen defendants claim that the copyright law is unconstitutional when you consider the value of the item versus the damages awarded.

Ray Beckerman said...

1. In my opinion, people should send checks here, payable to the law firm and mailed to the attention of Mr. Toder.

2. No it's not too late to attack the jury's award on the ground of unconstitutionality, either by motion to set aside the verdict, or by appeal, or both.

eclectica said...

If I were to define "justice" it would be: givng people what they deserve.

This verdict of the jury did not deliver justice.

Squarebird said...

I am a part-owner of small label (we do make money .. sales average about 6,000 per release) .. and nothing makes me angrier than the fact the RIAA claims to represent me and my artists. The fact is that our music is shut out of commercial radio (except overseas). And recently it has been largely shut out of Internet Radio due to RIAA-pushed legislation. And now they are pursuing cases like this to shut out file-sharing. The fact is, is that UNHEARD MUSIC is UNBOUGHT MUSIC. RIAA does not want independent music heard .. they don't want the music of my artists heard. Because then someone may actually want to purchase it. (If RIAA believed their own propaganda, then major-labels would be fighting to keep their acts OFF the radio rather than bribing their way onto it.).

Pat said...

Squarebird: I think it should be made extremely clear that this whole circus has nothing to do with suporting artists. It has been known for years that artists make very little money from sales of recordings, and that their income originates from the most part from ancilliary products and touring.

RIAA members have demonstrated over the years how much they care about artists: By stealing from them, not paying them what they are due according to their contracts (NYAG did look into this a while back), cooking sales numbers, creating abusive contracts - and sending artists out to pasture the very minute they are judged "unprofitable".

RIAA members, without exception, have all been stealing intellectual property from their signed artists, year after year, for decades.

Because there was no alternative for music distribution, this was tolerated. But now they are driven by fear - because in fact, their whole business model has been rendered obsolete.

Artists CAN sell directly to their public and fans. They CAN self-promote, gain popularity and access airplay without the big music corporations. They are no longer locked in an oligopolistic situation.

So - do they revise how they do business? No. They've always been thieves and bullies, and so now act lik scared thieves and bullies.

In the process they are burning bridges, antagonizing the general population, and essentially contributing to the creation of that same situation they fear so much.

Courts and laws are often biased toward large corporations, if only because the financial, and thus legal, resources they can bring to a case are so unbalanced. That's just my opinion.

But social pressure has had great success in the past in creating or changing the legal framework. So far, the victims have been remote, "someone else", and so the public remains in "can't happen to me" mode.

As the number of cases grows, and attract more media attention, it's getting closer to home for more and more people. The only hope I can muster in this deplorable situation is that eventually, a critial mass will be achived, and pressure will be applied on elected officials with such determined force that they will have no choice but to hear our voice.

Until then, I fear little can be done, and corporate profit will be priority number one, well above humanity and reason.

harrispaul said...

In the process they are burning bridges, antagonizing the general population, and essentially contributing to the creation of that same situation they fear so much.
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harris
http://www.shepelskylaw.com