Recording Industry vs The People: Wired.com reports: Judge Rules Cary Sherman Can't Testify; Defendant Takes the Stand; Evidence Done; Closing Arguments Tomorrow

Wednesday, October 03, 2007

Wired.com reports: Judge Rules Cary Sherman Can't Testify; Defendant Takes the Stand; Evidence Done; Closing Arguments Tomorrow

Some goodies from the excellent trial coverage by David Kravets of Wired.com:

RIAA Defendant Denies Kazaa Use, Admits Liking Music

DULUTH, Minnesota -- The defendant in the Recording Industry Association of America's first copyright infringement trial took the stand here Wednesday to deny that she illegally shared music on Kazaa.

Jammie Thomas was composed but visibly uncomfortable in 75 minutes of testimony. Called to the stand by record industry lawyer Richard Gabriel, Thomas said she was not the Kazaa user "tereastarr" who was caught sharing 1,700 tracks over the file sharing service in February 2005. (Only 25 of the tracks are subjects of the lawsuit).

"Is it your testimony that before this case you have never heard of the online file sharing page Kazaa?," Gabriel asked.

"That's true," Thomas answered.

.........
The lawyer scored his sharpest point against Thomas on the issue of a computer hard drive she had replaced in 2005, after the RIAA's investigators spotted the music cache. She admitted to incorrectly testifying in her deposition that she'd replaced the hard drive in 2004 -- which would have made the Kazaa-free hard drive compelling exculpatory evidence.

She said she'd been confused about dates throughout the deposition. "I was a year off on everything."

But Thomas was unflappable on the issue of her alleged file sharing, even when Gabriel pummeled her with questions that seemed intended to cast her as a copyright scofflaw to the jury.

Gabriel asked Thomas whether she had ever burned CDs, either for herself, or to give away to friends. She admitted she had.

"Did you get permission from the copyright owners to do that?," he asked.

"No," she admitted.....................

Judge Says RIAA President Can't Testify
By David Kravets October 03, 2007 | 4:21:15 PM

DULUTH, Minnesota -- Cary Sherman, the president of the Recording Industry Association of America, made the trip to Duluth for nothing. U.S. District Court judge Michael Davis ruled that Sherman can not testify in the trial of accused music-sharer Jammie Thomas.

"His testimony would not be relevant," Davis told industry attorney Richard Gabriel.

Gabriel argued that Sherman's testimony was necessary so the jury would understand why the RIAA is targeting people like Thomas with multi-million dollar lawsuits: for the deterrent effect......

After some testimony establishing the plaintiffs' ownership of the various music copyrights, the testimony in the trial concluded with the defense calling no witnesses of their own. Closing arguments are set for Thursday morning.

Complete Wired.com Coverage

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

3 comments:

Daniel said...: On redirect, RIAA attorney Richard Gabriel asked Jacobson whether he believed there was any evidence that the IP address that trafficked the songs was hijacked. "Did you see any evidence of zombies in this case? " Gabriel asked.

"No."

Well of course not, Jacobson was looking at the new hard drive. The evidence of zombies, hacking, etc would have been on the old hard drive that was replaced.; October 3, 2007 at 6:29:00 PM EDT
jsimmons said...: IANAL but I don't think the defense is as strong as it could be. What does CD ripping speeds really have to do with the question if Ms. Thomas distributed music on kazaa? I think they need to focus on the integrity of mediasentry's data collection techniques and reinforce the notion that an ip does not = person. Am I missing something?; October 3, 2007 at 7:12:00 PM EDT
Igor said...: Yes you are missing something...I think the defense was trying to make the point to the jury that she didn't download any of the songs but legally owned every single one...I would think a jury is less likely to find someone guilty of "theft" if they think the person is honest and owns each of the songs in questions...making it seem like a big corporation picking on the little guy...that said you are probably right about questioning the integerity of the data given how many mistakes they already made and given that Media Defender was seeding false songs for at least one of the plaintiffs that they later mistook for real songs (this is not from the trial but from a leaked email archive of media defender). However, it would be hard to question media defender data if you can't afford an expert (though there are probably many "experts" who live in the area who would have probably done this for little to no charge).; October 4, 2007 at 12:32:00 PM EDT

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove