Recording Industry vs The People: According to Wired.com, Jammie Thomas's lawyer told Colorado officials Gabriel was "standup guy" & "good lawyer"

Wednesday, May 07, 2008

According to Wired.com, Jammie Thomas's lawyer told Colorado officials Gabriel was "standup guy" & "good lawyer"

According to a report in Wired.com, Jammie Thomas's lawyer, Brian Toder -- when asked by Colorado officials for his opinion of Richard Gabriel as part of their investigation of Mr. Gabriel for his judicial appointment -- told them "he's a standup guy and a good lawyer. And I think he would be a good judge".

[Ed. note. I am beyond speechless. -R.B.]

Commentary & discussion:

p2pnet.net

Keywords: digital copyright law online internet 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 intellectual property

10 comments:

Diabolos said...: Speechless? Really? What makes a lawyer good is rarely connected to whom he represents, but rather the quality of his work and his legal mind. In this case it's pretty clear that he was good enough to convince a jury of 12 people that this was copyright infringement. No small feat given that so many of the jurors wouldn't know a transistor from a vacuum tube. Sounds like a good lawyer to me.; May 7, 2008 at 1:06:00 PM EDT
Unknown said...: Maybe there's a subtext here you're not seeing. Maybe he's thinking, hey, if I can help get this guy on the bench, I won't have to deal with him anymore as a lawyer. Almost everybody wins.; May 7, 2008 at 1:36:00 PM EDT
Anonymous said...: Jamie Thomas should be suing her lawyer for malpractice over this.

-DM; May 7, 2008 at 2:08:00 PM EDT
derivative said...: diabolos --

I can't speak for Ray, but the reason I would be "speechless" is that Mr. Gabriel made (IMHO) many material misrepresentations to the court in the Thomas case, and got away with it.

Now,(again IMHO) if I were Mr. Toder, I would either be mad at Mr. Gabriel for this, or at myself for not stopping him, or both, but I would not equate a victory that was achieved by misrepresentation as "good work."

The fact that Mr. Toder seems to think that Mr. Gabriel's work was good might indicate that Mr. Toder didn't fully appreciate the nuances of the case, and that Ms. Thomas didn't get the best representation possible.

It certainly indicates that Mr. Toder has not thought about Mr. Gabriel's actions in the wider context. As Ray has pointed out: this is a man who makes a living by suing children.

While this apparently will not be true any longer, one has to question whether a man who makes a very good living suing children will make a very good judge, and also whether he will be happy with a judge's salary or not.; May 7, 2008 at 2:11:00 PM EDT
Anonymous said...: "Speechless? Really? What makes a lawyer good is rarely connected to whom he represents, but rather the quality of his work and his legal mind. ...Sounds like a good lawyer to me."

Under RG's direction the RIAA has repeatedly misjoined defendants in spite of an outstanding injunction, knowingly used an unlicensed investigator in violation of state laws, pursued sham litigation, filed tens of thousands of ex parte law suits not to seek relief but for the sole purpose of improperly using the power of the court to subpoena private information... and the list of violations goes on.

In my opinion, Richard Gabriel is wholly ethically unqualified from holding any position in the legal profession and especially ethically unqualified to hold a judgeship

While it is true that ethical lawyers can appreciate and praise each other in spite of their adversarial positions, the key word is **ethical**. Based on Mr. Toder's inexplicable praise of Gabriel, were Ms. Thomas case a criminal one I'd say she would have grounds for appeal based on inadequate representation. Unfortunately I such is not possible in her civil case. There seems to be a serious lack of objective judgement on Mr. Toder's part. I think we can see why she lost now.

This post represents my opinion only.; May 7, 2008 at 2:40:00 PM EDT
Jadeic said...: I just picked up this story over at p2pnet.net...

I will be watching Mt Toder's next career moves with great interest.

Dave; May 7, 2008 at 3:22:00 PM EDT
Anonymous said...: His comments are actually a good reflection of his representation in the Thomas case...clueless; May 7, 2008 at 5:16:00 PM EDT
mhoyes62 said...: I look on it as a way of getting Mr Gabriel out of the way. As a lawyer, I would think it would be fairly reasonable to exaggerate the qualifications of a person, if that means that he will no longer be in the picture. Since he was being moved to a State Judicial Seat, and all of the Copyright cases are Federal charges, this removes a big cog in the RIAA machine. I think that is a pretty good move.

meh; May 8, 2008 at 11:36:00 AM EDT
Nohwhere Man said...: One thing unasked, as anyone confirmed this opinion with Mr Toder himself? As we all know, ofttimes the press will selectively quote their sources, and I'd like to give Mr Toder the benefit of that.; May 8, 2008 at 1:49:00 PM EDT
raybeckerman said...: David Kravets is a superb, and a very serious, reporter.

I am sure he quoted Mr. Toder accurately.; May 8, 2008 at 2:27:00 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