In Capitol v. Thomas, the plaintiffs and the defendant have filed their briefs in response to Judge Davis's May 15th order.
The US Department of Justice took no position on the issue.
[Ed. note. I hope the answer to the following question is "yes": Has a single one of the briefs that's been filed on behalf of Jammie Thomas pointed out to the Judge that Atlantic v. Howell had been vacated a week BEFORE her trial?]
[Ed. note. Another odd thing about the brief Mr. Toder submitted on behalf of Ms. Thomas is that it states that the Judge, in his May 15, 2008, decision, brought the April 29, 2008, decision in Atlantic v. Howell to the attention of the parties. What is that about? The RIAA lawyers knew on September 27, 2007, about the September 27, 2007, decision, and they knew on April 29, 2008, about the April 29, 2008, decision.]
Defendant's brief in support of new trial
Plaintiffs' brief opposing new trial
Notice from US DOJ that it takes no position
May 15, 2008, Order indicating possible manifest error of law
September 27, 2007, Order Granting Reconsideration and Vacating August 20, 2007, Order in Atlantic v. Howell
Commentary & discussion:
Wired.com
LA Times
p2pnet.net (Digest of Capitol v. Thomas stories)
Ars Technica
Online Media Daily
AzOz
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
11 comments:
Huh?
Me is a bit confused!
Mr Toder wrote the judge:
"On April 29, 2008, the United States District Court for the District of Arizona
reconsidered its decision in Atlantic Recording Corp. v. Howell, No. CV06-2076-PHX2
NWB, 2007 WL 2409549 (D. Ariz. Aug. 20, 2007), a case relied upon by plaintiffs in
advocating Jury Instruction No. 15, the “making available” instruction which the parties
battled over during the course of the trial.[date bolding by me]
what is he talking about?
I thought the thomas trial was in 2007 and a week before that, the howell reversal decision was handed down.
What is it with the date 29.April 2008 then?
I am confused as well.
Yes it was on April 29, 2008, that Judge Wake finally decided the summary judgment motion, this time denying it.
But it was on September 27, 2007 -- A WEEK BEFORE THE CAPITOL V. THOMAS TRIAL -- that he GRANTED Mr. Howell's reconsideration motion and VACATED the August 20, 2007, decision upon which the RIAA was relying.
I would have thought that EVERY brief submitted on behalf of Jammie Thomas would have pointed that out, since Judge Davis's May 15th order seemed to suggest that he was under the mistaken impression that Howell had been vacated after the trial.
But I don't recall seeing that ANY of the briefs mentioned it.
I hope it's there, and I just overlooked it!
oh then I think I see!
this "selective mentioning" of timeing events by Mr Toder is then allegedly just a case of simple CYA.
Since he hadn't informed the judge about this "one week prior"-thingy either!
Well, on oral argument the Fred von L. for EFF can mention that timeline fact briefly to put the judge on it in case he hadn't already noticed it in the meantime himself ;-)
Comment rejected for making false statement of fact.
Judge Davis said in his May 15th order that Atlantic v. Howell has since been vacated, meaning that he believed it had been vacated after the Thomas trial.
I've posted a copy of the May 15th order.
Is the RIAA just shooting themselves in the foot with quotes like this one on the bottom of page 2?
"Congress cannot possibly have intended to allow a person to set up a business selling copyrighted works without a license and invite customers in to acquire the infringing works when the customer wants, so long as they were never caught in the act of actually transferring copies of copyrighted works to others. {emphasis mine}
Aren't they just saying their new argument "We don't need no stinkin' proof"? If it's possible for it to happen they must be guilty!
Also on top of page 3:
"A person who makes infringing works available for copying by others has done everything that a person needs to do to transfer infringing copies to the public, and there is no reason to allow a person to do so with impunity."
Sooooo... as far as they are concerned, if you do everything necessary to commit the crime but don't actually go through with it, you are still guilty? What kind of illusions do these people live under thinking that stuff like this?
I can only hope that the judge in this case can see through all of this and basically tell the RIAA to stuff it where it will do them the most good!
Just too disgusted to read through the rest of their garbage. I just hope Jammie Thomas' attorney eats them for lunch!
Comment rejected because it contained an incorrect date for the oral argument.
Oral argument is scheduled for August 4th, at 10 AM.
If it is true that Judge Davis did not know that Howell had been previously vacated when considering the jury instructions during the Thomas trial, he must be made aware of that fact now.
Given that RIAA Richard knew that Howell was vacated when he was arguing for the "making available" instruction 15 and citing Howell as primary authority, Judge Davis should consider dismissing the complaint in total as sanction for the failure of Plantiffs to fulfill their duty of notifying the court that the grant of summary judgment in Howell was vacated. RIAA Richard appears singularly responsible for wasting the Court's time and resources of the first trial because of this failure to notify. Judge Davis should be feeling quite used and abused by Gabriel's actions which are perhaps best described as a fraud upon the Court. Of course he will SAY he didn't learn of the vacation until later. Dismissing the suit entirely would be an appropriate remedy for the scandalous actions and inactions of Plaintiff's counsel.
Why the Thomas appeal did not include challenging the making available instruction as well as point out the late September 2007 vacation of Howell is difficult to understand. The due process issue, while potentially meritorious, does not challenge the finding of guilt or innocence as would have an appeal of the erroneous jury instruction.
Looking back at the report of the trial, it would also seem the defense missed effective rebuttal of the RIAA witnesses to include the Sony person and of course Dr Doug. Most of these cases quite possibly could be suitably gutted by effectively refuting the errors and misrepresentations of the so called technical evidence as presented by Plaintiffs. It would seem for these reasons the Defendant has not been well served by counsel.
Why doesn't the RIAA try to settle with Thomas rather than facing the Court for oral argument and whatever fallout might occur from that? Certainly both sides agreeing to a "settlement center" style agreement would serve everyone better than a new trial. Of course, as you say, Ray, these are not reasonable people
Fred
I would think it to be a big deal that the United States Department of Justice is clearly proclaiming that they're not taking a position on the issue of "Making Available." Certainly the RIAA would have been hoping for them to backup the unsubstantiated opinion of Mary Beth Peters, Registrar of Copyrights, and the international treaties that the RIAA has contended rewrite United States Copyright Law in the recording industry's favor. For them to not supply a position in this matter seems to this observer to be highly significant.
{The Common Man Speaking}
Hey, is it just me, or is the RIAA intentionally trying to obfuscate the issue because they really have no case and are trying to make things appear more serious than they really are. Consider the following evidence from the RIAA filing:
Congress cannot possibly have intended to allow a person to set up a business selling copyrighted works without a license...
Selling was never a part of this case. It's not part of any filesharing case. There is a huge difference between profiting from copyright infringement and not profiting. A detail – loophole, if you prefer – that the recording industry wants badly to close. Right from their Introduction the RIAA brief taints the very issue they're arguing by trying to cast it as something it never was. A sharp judge would be outrageously insulted by the egregious tactics used here by the RIAA to try and sway his opinion.
The whole RIAA approach to this judge is blatantly saying, "Mr. Judge, we believe you're a fool who will buy this line we're selling you because you're either not that bright, or won't spend time to fully study this issue yourself because that would be work and you have a busy caseload already."
Were I that judge, I'd be so insulted by their transparent attempt to make this case into something it never was that they'd be lucky to get out of my court with all their skin still intact.
One additional note: Jamie Thomas's lawyer needs to learn how to spell "insight". "Incite" has a whole different meaning and is more appropriate to the RIAA's hyperbole.
XxX
The RIAA's stance should be...
Congress cannot possibly have intended to allow a person to set up a business " Investigating" copyrighted works without a license...
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