Ms. Thomas-Rasset's previous attorney, Brian Toder, was kind enough to furnish us with the following statement concerning the recent flurry of motion practice:
Regarding the RIAA’s motion to bar objections – you may recall that, in the first trial, plaintiffs moved, pretrial, for “summary adjudication” so they wouldn’t have to prove ownership, but we won that, so they had to so prove. They produced 400 pages of documents that they claimed proved ownership, but we successfully moved to preclude their admission, because they were not produced in discovery even though we served discovery demands calculated to cause their production.
So the RIAA had to put on live witnesses, but lo and behold, it turned out Virgin Records didn’t own the copyright to the one song that was theirs, so the morning the trial was to begin the title of the case was changed from Virgin Records v. Thomas to Capital Records v. Thomas. I consented to the name change provided the court agreed that we preserved our right to seek attorneys fees against Virgin Records which the court so agreed.
By the way, the reason I said a few nice things about Richard Gabriel was because he agreed that plaintiffs would give up their right to seek attorneys fees against Jammie Thomas, if we agreed not to seek attorneys fees against Virgin Records, a deal that prevented a judgment for hundreds of thousands of dollars more. I also said those things about Gabriel before I found out that, at the time we were arguing the making-available instruction during trial, he knew that the Atlantic Recording v. Howell decision in Arizona that plaintiffs relied upon had been vacated a few days earlier.
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