Tuesday, June 23, 2009

How Thomas-Rasset case would have played out, had we not been in the Parallel Universe

The normal world in which we litigators travel is that both sides are represented by lawyers, and there are a judge and jury to act as umpires, and cases are decided according to time tested principles of substantive and procedural law.

The RIAA cases, however, proceed in a parallel universe, where the plaintiffs are overlawyered, the defendants underlawyered, and the Courts misled by both. The courts have not received the benefit of the crystallization of issues that would normally result from the proper working of our judicial system, resulting in a “parallel universe” which, to an outside observer, might look like litigation, but is not.

So I thought to myself : “how would this case have played out in the real world, rather than in the parallel universe?”

Here's how:

Courtroom demeanor

None of the lawyers would have been permitted to mention, or educe any testimony, on any copyright infringement by anyone other than defendant, the alleged reasons for the large record companies' business difficulties, any other litigations, or the possible amount of any statutory damages award.


Liability-Reproduction right

Plaintiffs failed to introduce an iota of evidence that Jammie Thomas-Rasset had made a single copy using Kazaa.
Result: directed verdict on reproduction right.

Liability-Distribution right

Plaintiffs failed to introduce an iota of evidence that
(1) any copy was disseminated to anyone other than MediaSentry
(2) any dissemination “to the public” occurred
(3) any sale, other transfer of ownership, rental, lease, or lending occurred.
All of the above are necessary components to the distribution claim.
Result: directed verdict on distribution right

Evidence-Plaintiffs' Experts

(1) Under Fed. R. Civ. P. and Fed. R. Evid., MediaSentry was an expert; therefore testimony barred for failure to provide expert witness disclosure;
(2) Alternatively, MediaSentry documents and testimony barred for failure to satisfy Daubert and Fed. R. Evid. 702;
(3) Jacobson testimony barred for failure to satisfy Daubert and Fed. R. Evid. 702

Evidence-Defendant's Expert

Since he was a rebuttal witness, Court was wrong to prejudge what defendant's expert could and could not testify about; the scope of his testimony could not be determined until after plaintiffs' case had been put in.

Assuming the Court denied or reserved decision on defendant's motion to dismiss at close of plaintiffs' case, we reach the following:

Statutory Damages-entitlement-jury instructions

The jury should have been instructed that a “work” is an album, and that multiple mp3's from one album constitutes a single “work”.
The jury should have been required to make findings as to (a) the date defendant commenced using an “online media distribution system” (Kazaa) and (b) the copyright registration effective date of each work they find was infringed.
The jury could have been instructed that no statutory damages could be awarded as to any work whose copyright registration effective date was subsequent to the date of defendant's commencement of use of Kazaa [or the Court could itself have made that determination based on the answers to the verdict form].

Statutory Damages-amount-jury instructions

There is long standing case law under the Copyright Act that statutory damages should bear a reasonable relationship to actual damages, and that even in commercial cases the usual multiple is from 2:1 to 4:1. There having been no evidence of defendant having been a distributor, and the actual damages being as a matter of law something less than the maximum wholesale price of 70 cents, the jury should have been instructed to award $750 per work it found to have been infringed.

If the Court submits the case to the jury, and the jury awards $750 per infringed work, then the parties could litigate the constitutionality of that award in motion practice.

That's the way it would have played out in the real world.

I can dream, can't I?

-R.B.

[Ed. note. The above list of matters which were overlooked should not be deemed to be exclusive. I keep thinking of other things that appear to have been overlooked in this trial. E.g., was MediaSentry ever required to prove that the 24 song files in question were in fact song files? Most likely they only had 6 files or so with which to do that. -R.B.]

Commentary & discussion:

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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

18 comments:

Alter_Fritz said...

"I can dream, can't I?

-R.B."



now playing: Supertramp-Dreamer.mp3

Thanks it's only a filename, no link, no hosting no nothing! Imagine you, Charles Nesson and me in one cell for "making available" ;-)
But your question...
...maybe the authors guild will sue you non the less since the words seems perfectly suited for a songline!

*SCNR*

Anonymous said...

Let's just focus on the distribution claim. Judge Davis figured this out for himself last year. What went wrong this year? Did Jammie's lawyers even make this point or follow it through? Was there any discussion of the controlling 8th Circuit case law?

Anonymous said...

Some dreams are nightmares. But the world is waking up to the reality of this injustice. The RIAA opened this door long ago and those in charge of it are ashamed to admit they made a terrible mistake. They have shown time after time they will not back down from any pursuit crushing anyone who questions them. The RIAA kids are not the smartest people on the block, but when the neighbors see them using Napalm on their lawn to go after dandelions, it won't be long before the police are called to keep them on their side of the fence.

Oldphart in Kansas

Anonymous said...

Considering how these are boilerplate cases, this man wonders why there hasn't yet been a boilerplate defense created.

In the animal world communities that are highly genetically similar are subject to being wiped out by a single disease against which none of them has immunity. Why hasn't the RIAA suffered a single defeat with all the people working against them so far that brings down all of their cases at once?

{The Common Man Speaking}

Ray Beckerman said...

Dear Anonymous Common Man Speaking asks "Why hasn't the RIAA suffered a single defeat ?"

They haven't had a single defeat or a single victory in any fully contested case. In those cases where they are headed to defeat, they invariably crawl away with their tail between their legs.

Anonymous said...

Isn't the judgment the best thing ever to actually raise the attention of the public and of the Supreme Court?

Seriously this case seems to make it easier to flag the amount due as unconstitutional.

M. Yass said...

Neither set of lawyers for JTR did a good job by her. In other words, the representation was worth what she paid for it.

Cases are won or lost long before they reach trial. JTR's previous lawyers, who were forced to stay aboard despite attempting to bail, obviously did not do a good job of preparing for trial.

Her new lawyers didn't do a much better job by her. For starters, they should have asked for a trial continuance so that they could get up to speed and they didn't. Their strategy of putting the RIAA on trial didn't work either.

This case is a perfect illustration of why the right to indigent counsel should be extended to civil cases. Will it happen in America? Not bloody damn likely.

M. Yass said...

Liability-Distribution right

Plaintiffs failed to introduce an iota of evidence that
(1) any copy was disseminated to anyone other than MediaSentry
(2) any dissemination “to the public” occurred
(3) any sale, other transfer of ownership, rental, lease, or lending occurred.
All of the above are necessary components to the distribution claim.
Result: directed verdict on distribution right


Did they allege all of this stuff in the complaint? If not, that's a dismissal on 12(b)(6) with possible Rule 11 fees.

Ray Beckerman said...

Dear M. Yass,

No they did not allege any of those in the complaint.

Yes you are right that the complaints are insufficient under well settled principles of law.

But I know of at least 6 fully briefed dismissal motions, none of which were granted.

Yet another example of the "parallel universe" at work.

The only 2 instances of which I am aware, of a judge holding the RIAA's complaint to be insufficient, are Interscope v. Rodriguez, and Atlantic v. Brennan. Both cases denied an RIAA default judgment application because of the insufficiency of the complaint. These are the only examples of which I am aware of the judges holding the RIAA to normal pleading standards.

I am hopeful that the 2nd Circuit will reach such a conclusion in Arista Records v. Does 1-16, which is being briefed at the moment. Then perhaps District Court judges will start dismissing these sham cases at the appropriate juncture, which is at inception.

Anonymous said...

Mr. Yass has a point. But whether her lawyer was "free" because the judge wouldn't let him off the record or whether he volunteered in the hope of winning with a Hail Mary pass, the lawyer has a duty to do a competent job. The new guy at least seemed to grasp more of the issues, especially the more hard core copyright ones, but from all the tweets and reports that I saw, it's not at all clear that he followed through on all of them. I agree he needed more time - and did not ask for it.

All that said, Jammie's testimony last time and this time wasn't exactly endearing.

Hopefully, there's enough on the record to salvage this on appeal - but who knows?

I shudder to think what will happen if the Tenenbaum case has a similar result.

Ray Beckerman said...

Comments were rejected as off topic.

Anonymous said...

Can you shed some light on these questions: Why are the RIAA cases in a parallel universe? What did they do to receive such favorable treatment? Given that multiple venues, judges, and juries have ruled in their favor, is it just chance that massive errors keep happening or is the system broken?

Ray Beckerman said...

Forgive me, but this post was addressed, primarily, to knowledgeable lawyers. It assumed familiarity with the law.

Its purpose was neither to go into a long essay about why the law was not applied, nor to brief the law.

Its purpose was restoration of sanity.

To remind us regular lawyers who still have a sense of decency and half a brain left that this runaway jury in Minneapolis, Minnesota, did not go off half cocked because of the law, but because the law was not applied.

Any lawyer knowledgeable about the bodies of law I discussed knows that there is nothing controversial in anything I said.

Anonymous said...

Ray, do you figure that the RIAA used jury selection experts here? Were there any challenges at all - or other evidence of strategic jury selection?

Ray Beckerman said...

I would imagine they did have a jury consultant.

Wesley Parish said...

I would have thought that one could apply "bringing itself into disrepute" here to the court.

After all, the RIAA is committing institutionalized larceny here with the courts aiding and abetting open-eyed, and nothing is guaranteed to bring a government institution into disrepute faster than fraud.

When the court itself is in contempt of the court ...

Anonymous said...

Jacobson testimony barred for failure to satisfy Daubert and Fed. R. Evid. 702


There are now reports from three acknowledged experts (Drs. Bratus, Kim and Pouwelse) lambasting Dr. Jacobson.

So, consider a hypothetical new trial for which none of those experts was called to prepare an opinion. Could their opinions still be introduced in this hypothetical new trial at least to characterize the quality of Dr. Jacobson's report, and thereby support that information being barred under F.R.E. 702: the work has been reviewed and found wanting by Dr. Jacobson's (academic) peers.

Maybe something for counsel to at least consider?

-Quiet Lurker

john said...

As I see it, downloading music or films from the net in loss formats (mp3/divx, etc) amounts to downloading photocopies of Gioconda.

Especially in case of the movies, it is, in most of the cases, definitely not the product that has ever been offered for sale by the copyright owners (which product is the DVD version at resolution of over 4 GB).

In the case of mp3s they constitute lower value copies of a copyrighted product, which should automatically lead to a correspondingly lower infringement fine (1/5-1/6).

Has this approach ever been tested by a defense?