More details on the the early morning motion argument in Capitol v. Thomas-Rasset

The first motion up for argument was whether or not the retail purchased CDs that Plaintiffs offered for comparison to the mp3 files obtained by MediaSentry were appropriate to be admitted for this purpose.

Defendant's argument hinged on a 5th circuit case which held that the copies introduced for comparison must be "certified copies of the deposit copies filed with the copyright office". Their argument was that the retail CDs offered were not "certified copies of the deposit copies filed with the copyright office" and that such certified copies were required. There was little argument that the copes were not such certified copies, but instead focused on whether or not these copies were required.

From the beginning the the judge seemed reluctant to accept the argument. He at one point during the argument noted that all of the copies, including the deposit copy, were made from the same master.

Plaintiffs focused on a few things. The statute nowhere states that such a copy is required, which the defense argued that was instead covered by the rules of evidence and that certified copies would constitute the "best available evidence". Plaintiffs also argued that such certified copies may not exist. They point out an e-mail they acquired from General Counsel of the copyright office sent at 11:40PM last night (to which the judge joked that the government employees work late) that stated that the copyright office does not retain such copies, and that they are provided to the Library of Congress. Defense argues that copyright circulars provide both information and a method for obtaining information on whether or not such certified copies exist and that if they did not then the retail CDs would then be the best available and admissable, but since Plaintiffs didn't even try to find out if they could get these copies they should be excluded. Plaintiffs also pointed out that the facts of the 5th circuit case were different, since that plaintiff had no other copies (deposit or otherwise) with which to compare works.

This motion was denied, and the CDs will be allowed to be admitted.

The next motion was on the "stack of documents" which had been excluded previously. As I posted about before, this motion was denied. The argument was relatively straightforward, since the documents wern't produced in discovery and instead at the last minute they are not admissible, and Plaintiffs will have to show proof of copyright ownership in another manner.

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