Thursday, June 18, 2009

Capitol v. Thomas-Rasset Defense closing arguments

First to present closing arguments was Mr. Sibley from the defense.

He began by stating that in opening both sides made promises to show evidence that their version of events was true. Only one side fulfilled their promise. All of the evidence that was presented, if believed, would only point to Ms. Thomas-Rasset's computer, not her. He argued that the only witness who knew Ms. Thomas-Rasset at the relevant time in question, her ex-boyfriend had testified that he had never heard her say anything about KaZaA and had never heard of her downloading music from the internet.

He argued that Plaintiffs evidence of week and required the jury to make a leap of faith. He stated that hte record executives had testifed and they want maximum damages, or $3.6 million dollars. If the jury returns a verdict finding her responsible they must be certain, $3.6 million dollars certain that they are correct.

He again argues that all the evidence stops at her computer and offers several reasons why. First, why would the defendant steal music that she already owns? There has been evidence presented that she owns CDs for the works in question. Second, it doesn't make sense that she would use KaZaA and have mp3 files when she had testified to ripping CDs with Windows Media Player into wma files. Third, Best Buy records show hundreds of dollars of CD purchases, including purchases around the time in question. He again says that the argument that Jammie did it just does not make sense.

He argues that other people could have done it, and that their having done it makes more sense than her having done it. Her ex-husband has spent time in the house when she was gone with the kids and had used the computer. There were seperate user accounts on the computer and the other accounts had used software which utilized the mp3 format. KaZaA could have been easily found and installed on the computer.

He states that the tereastarr name is not enough to find Jammie responsible for copyright infringement. It is the only piece of evidece which plaintiffs claim to have which links to Jammie, and not her computer, but this is a family known name, and why would Jammmie use her own name to commit crimes? He argued that even Dr. Jacobson testified that a KaZaA user is more likely than not to use a different username than for their e-mail when using KaZaA.

Mr. Sibley argues that Ms. Thomas-Rasset has been painted by Plaintiffs as a cunning criminal, who destroyed evidence. But even if she recieved instant messages from MediaSentry, why would someone wait two weeks before destorying the evidence? If someone had accuesed you of shoplifting and sent you a message saying stolen goods were in your closet you wouldn't wait two weeks to get rid of it. He also argued that Best Buy is a smart business, which as with any warranty repair would inspect the computer to make sure that it was truly in need of repair. For Ms. Thomas-Rasset to sabotage the computer in a way which would confuse Best Buy in to thinking it was broken with no evidence of the sabotage demonstrates a level of technical skill which the Plaintiffs have not demonstrated.

He then goes to talk about the inconsistencies in dates in various depositions. He claims Plaintiffs are nitpicking, and that almost every witness who testified had trouble remembering dates. Even Dr. Jacobson prepared a written timeline for himself so he could rimind himself of the dates that events occured regarding his examination.

He argues they are also nitpcking about her previous answer about always watching her children using the computer, implying that must mean she always stands over them and watches every second of computer use. He claims that these small inconsistencies don't prove that anything has been done wrong.

Mr. Sibley then argued about the recording industry executives who had come and testified to the importance of this case to them and their companies. He scanned the gallery and noted that all these executives who had come for this important trial were now all gone, and that this demonstrated that it really wasn't very important to them.

He argued that the real message that they wanted to send was that, if they say you did it, then you're guilty. The message is that if you own a PC, which is linked to filesharing, which has music you like, then you're guilty. He brings back to light Mr. Connelly's testimony that MediaSentry "makes no mistakes" and says that if they find you that they are going to come after you "like the terminator".

He argues that Plaintiffs never bothered to talk to or depose her ex-husband and that it was not her job to help them with their case.

He then began ending his argument by asking the jury if they were going to sentence Ms. Thomas-Rasset to permanent indebtedness and a lifetime of misery based on the evidence that has been provided.

He goes back to the arguments that things don't make sense. She owns the CDs, the file types don't match, was buying music at the time she was accused.

He tells the jury that infringement is the most important question in this case and that question number two on the verdict form is the most important that they will answer. He states that checking no means Ms. Thomas-Rasset goes home, and checking yes means that she will owe record companies a minimum fine is $18,000, a sum difficult for anyone to afford, much less a mother of four.

He passionatley argues to the jury that it would be a travesty to find her guity and sentence her to a lifetime of financial misery.

Keywords: lawyer 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 portable music player

6 comments:

Eric said...

Emotionally telling and true. Our copyright policy is designed to bankrupt anyone convicted of doing it no matter the reason or situation. It's worse because it's civil law and you need not prove beyond a reasonable doubt, just preponderance of evidence in order to ruin someone.

The laws need to be changed. We need quick, cheap, and streamlined laws for dealing with this new medium. Something that can reasonably and fairly used against personal, non-commercial file sharing and the people that pay for the connection.

Are you willing to bet your livelihood that someone using your computer has not downloaded something under copyright illegally?

Ray Beckerman said...

I don't know that what you say is true of our copyright policy; it's true of the RIAA's misinterpretation of copyright law.

Terry Hart said...

It seems like the defense is trying to argue a criminal case. The references to "sentencing" Jammie, and finding her "guilty." Is this normal in a civil case?

Eric said...

I should have said the current application of copyright law by the rights holders, but it's true. $750-$30k, $150 if willful for 1 infringement?! A 3 year statute of limitations is also insane when dealing with home computers and non-savy defendants.

Ray Beckerman said...

I think he was being metaphorical. If you had a large money judgment against you, which bankrupted you, I'm sure you would feel like it was a "sentence". You would have been sentenced to poverty & insolvency.

Anonymous said...

Sorry for getting slightly off topic, but "why would the defendant steal music that she already owns?"

The same reason I would download music I already own: in order to avoid the hassle of ripping it myself. Even those of us who are experienced with format-shifting of this sort often find it much more convenient to just download someone else's rip than to make our own, and we see nothing wrong with it. What's the difference? Either way, I wasn't going to pay for the music twice. It would be great to see this kind of copying clarified as Fair Use, or even just authorized by the RIAA, but of course at present, copier & supplier alike are "pirates" according to the record companies.