Thursday, May 15, 2008

Judge in Capitol v. Thomas says "manifest error of law" may have been committed by incorrect "making available" instruction

In Capitol v. Thomas, the case in which the RIAA obtained a $222,000 jury award, District Judge Michael J. Davis has sua sponte issued an order stating that he believes he may have committed a "manifest error of law" by giving the jurors an incorrect jury instruction which accepted the RIAA's "making available" theory.

The judge stated that neither Ms. Thomas's lawyer, nor the RIAA's team of lawyers, had brought to the Court's attention the controlling opinion of the United States Court of Appeals for the Eighth Circuit, in National Car Rental System v. Computer Associates, which had held that there can be no infringement of the 17 USC 106(3) "distribution right" without actual dissemination of copies or phonorecords.

The judge also noted that the RIAA had relied upon the initial, August 20, 2007, decision in Atlantic v. Howell, which had been vacated on September 27, 2007, a week before the trial.

The judge has ordered the parties to file briefs, has invited amicus curiae briefs, and has scheduled oral argument for July 1st.

[Ed. note. If it is true that neither Mr. Toder nor Mr. Gabriel cited the National Car Rental case, then, in my professional opinion, Mr. Gabriel and those involved in briefing Capitol v. Thomas for the RIAA have breached their duty to bring to the Court's attention controlling contrary authorities. Certainly Mr. Gabriel was aware of the case, as it has been cited in numerous briefs which my office, and which other lawyers all across the country, have filed, in cases where the RIAA was seeking to foist its "making available" theory on the Court. Interestingly, the scheduled date of the oral argument, July 1st, is the same date that Mr. Gabriel starts his new job as a state court judge in Colorado, so that one of the other stormtroopers will have to face a very angry Judge Davis that day. -R.B.]

May 15, 2008, Order suggesting possible manifest error of law and calling for briefs and oral argument*

* Document published online at Internet Law & Regulation

Commentary & discussion:

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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

25 comments:

Matthew said...

That sound you here is the giant sigh of relief coming from Ms. Thomas. Hopefully, this is the first step in getting a brave woman a night of worry-free sleep.

Alter_Fritz said...

Well, It is a good sign that the court more or less openly admits that it made an error, isn't it?

That lets the judgement and the effect of the jury verdict -which made the US law system a worldwide laughingstock- shine in a more resonable light!

I guess EFF are the guys that the judge had in mind when he talked about "friends of the court".

Anonymous said...

Assuming for the moment that the judge reverses, will the RIAA be obligated to notify all the other courts where they have cited this case?

Kip Patterson

Alter_Fritz said...

"[...]he same date that Mr. Gabriel starts his new job as a state court judge in Colorado[...]"

Technical Question:
Can the governeur/senator/who ever gave this new job to "Rich" still change his mind and say: "Sorry Rich we weren't aware what kind of bad guy you were when we offered you this Job, we changed our mind: fly back into the vultures nest at HR&O from where you came. We actually prefer a honest guy with integrity over you!"?

John said...

This is good news. Hopefully it turns out differently this time.

Also, out of curiosity, will you be filing an amicus brief, Ray?

Friend of this Blog said...

Between this order from Minnesota and the Tanya Andersen attorney fee opinion in Oregon and what is developing with MediaSentry being unlicensed, the bottom cards are being removed one by one and the RIAA house of cards is about to fall.

Unfortunately there are a lot of students and their families being extorted and intimidated even now into paying $7500 without knowledge or resources to defend.

Once the house of cards has fallen completely, someone has to get these people refunds of these $3000 to 7500 settlements which were fraudulently obtained.

Maybe that RICO case in Oregon or Washington can be the vehicle.

matt said...

Just when I thought the Andersen costs & fees recommendation would be the best news of the day!

Best wishes to Ms. Thomas! Let's hope July 1st puts the "making available" theory of liability to rest for good.

Also, props are in order for Judge Davis catching his error sua sponte. I wonder if perhaps this very blog played a role in that.

Anonymous said...

Is this a CYA by the judge to mitigate the effects of a reversal on his career record now that the case is on appeal over this point? Why else would he revisit this case sue sponte?

And to Friend of this Blog: It seems that RICO charges are being dropped as not likely to be sustainable.

-DM

Ray Beckerman said...

No, anonymous DM.

This is a life-tenure federal judge. He doesn't have to care about what anybody thinks of him.

He is doing it because it is the right thing.

He and his staff probably came across Atlantic v. Howell while doing research to decide the remittitur motion.

Alter_Fritz said...

DM askes

"Why else would he revisit this case sue sponte?"

maybe simply because he is NOT like the Krichbaum's, Gabriel's, Moran's ect. and thinks that what is the law should be used as such.

you know DM, sometimes you find people that are willing to admit to and correct their own errors simply to clear their conscience, not because they try to CTA though.

Anonymous said...

Ray --

Every vacuum-cleaner salesman has been trained to not take "no" for an answer until (s)he's been thrown out of the prospect's home. Until then, salesmen believe that the most outrageous behavior is OK.

This blog documents regular, repeated, outrageous misbehavior by the plaintiff's lawyers. Sure, they may get a tongue-lashing by the judge, but judging from the vacuum-cleaner salesmen I know, this is actually a badge of honor. Are those lawyers' bosses telling them that they haven't even tried unless they get scolded by the judge?

Is this the current state of American justice: lie, cheat, and say you're sorry if you get caught? Why are judges just scolding like little squirrels instead of punishing rule-breaking lawyers ("officers of the court") to dissuade illegal behavior? What about bar associations: just dens of mutually-supportive thieves?

I mean no disrespect to your profession, but this seems to come up time and again in this blog. What really worries me is that this RIAA business is a window into how the whole legal system works. Has it just turned into a self-perpetuating gladiator match that doesn't care about the very people the law is supposed to protect?

Anonymous said...

Dear Ray, as much as I don't like to argue with you, especially on your own blog, please do allow me to point out that even a life-tenured federal judge has opportunities for upward advancement. Appeals courts and The Supreme Court lie above him, and a record of being often reversed by higher courts isn't the best resume to present at appointment or confirmation time for one of those.

-DM

Anonymous said...

Alter Fritz, While I understand the point you're trying to make, I really do think that most judges are so busy, and like most workers would like to leave the job at the office when they can, that they don't spend their copious free time thinking about, "Gee, what should I have done differently in all of my hundreds of past cases, and what sue sponte decisions might I throw out today just to stir the pot." I don't expect a judge on his own to just go back and suddenly reverse himself without a reason because I don't know why he'd even still be thinking about that case from months ago otherwise. Hence my comment.

-DM

Ray Beckerman said...

As I said above:

He and his staff probably came across Atlantic v. Howell while doing research to decide the remittitur motion.

Anonymous said...

I applaud Judge Davis for the honesty and integrity he has shown in calling this into question sua sponte. I hope that Jammie has the resources to file the brief (hint, hint, Jammie Thomas legal fund...). I await with pleasure the RIAA's response on this one.

Regards,
Art

Anonymous said...

I take it that your office was unaware of the National Car Rental case (how could everyone have missed this?). I don't ask as a criticism, but only as a clarification.

carla60626

Alter_Fritz said...

Now that's interesting if it is not just again one of those misspoke thingies or the author misquoted the still national lead counsel Mr. Gabriel!


Tom Corelis at above mentioned Daily Tech link wrote:

With precedent quickly shifting away from the content industry’s favor, the RIAA doesn’t seem fazed: “If we have to retry the case, we’ll do so without hesitation,” said RIAA attorney Richard Gabriel. Record companies can still prove that Thomas violated copyright, because files found on her computer have the same signatures as known pirated recordings – files that Thomas claims were copied from CDs. Beyond that, says Gabriel, evidence that investigators working for the RIAA were able to download music from her computer is more than sufficient to win a second trial.
(emphasis added)

Now If I remember correctly Plaintiffs counsel claimed at trial that defendant had switched the harddrives and that because of that they could not find evidence on the new one to support MediaSentry's claim.
And now out of a sudden there were songs on the new disk that were allegedly "stolen" after all?

Did Mr. Gabriel lied again?

(Note that I will not comment here about the fact why files that they claim to have found "have the same signatures as known pirated recordings" And why that means noting at all. The plaintiffs like to point out this "perfect digital copy"-mantra. That of course applies to the source CDs for those hdd copies too!)

Ray Beckerman said...

We have been citing the National Car Rental case for years, since 2005 when the RIAA first started defending its "making available" language. See the memoranda of law in, e.g., Elektra v. Barker, Maverick v. Goldshteyn, Loud v. Does, Motown v. Does, Warner v. Does, Warner v. Cassin. Additionally, other firms representing defendants have been citing it as well in such cases as Arista v. Greubel, Interscope v Duty, etc.

There is no reason to think that any lawyer in the Capitol v. Thomas case was unaware of it.

RTP said...

Just saw that an Associated Press story quoting Brian Toder as saying "he's in talks with the record companies to settle the case."

Henry said...

Well Jammie Thomas's lawyer wasn't aware of it. If he was and failed to bring it to the attention of the court, he violated his fiduciary duty to his client.

Ray Beckerman said...

I don't know what basis you have for saying that he was unaware of it.

Ray Beckerman said...

No doubt Mr. Gabriel will be desperately trying to settle the case at this point, before the Judge goes ballistic on July 1st over:

1. the fact that Mr. Gabriel violated his obligation to bring contrary controlling authority to the Judge's attention, and

2. failed to advise the Court that one of the primary authorities he had been relying upon had been vacated a week before the trial.

Also the RIAA will be desperate to settle the case because this $222k jury verdict is worth millions to them in its intimidation value; if it gets thrown out, they will be up the creek, and the only big numbers we have left will be the $108,000 attorneys fee award against the RIAA in Andersen, and the $68,685 attorneys fee award in Foster.

Indeed I am not surprised to learn that Mr.Toder and his "stand up" buddy are "talking".

Ray Beckerman said...

Wouldn't that be funny, if in a series of litigations in which the RIAA are the plaintiffs the only large judgments were against the RIAA?

Ray Beckerman said...

Yesterday was a good day.

A $108k attorneys fee award against the RIAA being handed down; the judge indicating the RIAA's big jury verdict is about to become history; the judge indicating in essence that the reason it's about to become history is that the RIAA lawyers misled him on the law.

Are the chickens coming home to roost?

Alter_Fritz said...

Ray wrote:
"Yesterday was a good day. "

Indeed it was.
Even a certain judge in a certain court in a certain "apple" acted as one got already used to expect that he would act.

As the german singer Peter Maffay sung on one of his Tabaluga story for kids songs:

"Danke für das Böse, das das Gute gut sein lässt"

http://en.wikipedia.org/wiki/Tabaluga
http://en.wikipedia.org/wiki/Peter_Maffay

"The First studio album "Tabaluga or the journey to reason." (1983) was the step to success:"" Maybe "a certain judge in a certain fruit" should start that journey too?!

And again an extra serious THANK YOU to judge Davis for the fact that he already took that journey and acts reasonably as a judge!