tag:blogger.com,1999:blog-15479871.post1573024392128294747..comments2024-02-29T03:26:17.906-05:00Comments on Recording Industry vs The People: Jury awards plaintiffs $1,920,000.00 in Capitol Records v. Thomas-Rassetraybeckermanhttp://www.blogger.com/profile/11063235302436280455noreply@blogger.comBlogger63125tag:blogger.com,1999:blog-15479871.post-58786503256268918132009-06-21T10:44:48.769-04:002009-06-21T10:44:48.769-04:00" We all recognize what the Excessive Fines C..." We all recognize what the Excessive Fines Clause refers to, but we also all recognize the motivation for it -- and the exact same reason it's appropriate in criminal cases makes it even more appropriate here! "<br /><br /> Likewise then, considering the amount of<br />devastation wreaked on an individual, <br />the burden of proof in these cases should also<br />be the same as criminal cases.<br /><br /> Wouldn't you agree ??<br /><br /> DreddsnikAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-60120988435116085582009-06-20T19:45:30.211-04:002009-06-20T19:45:30.211-04:00June 20, 2009 2:47:00 PM EDT Anonymous:
We all re...June 20, 2009 2:47:00 PM EDT Anonymous:<br /><br />We all recognize what the Excessive Fines Clause refers to, but we also all recognize the <em>motivation</em> for it -- and the exact same reason it's appropriate in criminal cases makes it even more appropriate here!<br /><br />XYZZYAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-26041178389715393192009-06-20T14:47:13.295-04:002009-06-20T14:47:13.295-04:00A number of commenters have made reference to the ...A number of commenters have made reference to the 8th amendment. To be clear, the Supreme Court holds that the Excessive Fines clause is only applicable to fines paid to the government. In the case of RIAA, absent a state action theory (very unlikely), the 8th amendment simply does not apply.<br /><br />The Gore cases are more relevant, but people do not pay attention to the remedy in that scenario. Yes excessive damage awards could be held unconstitutional, but that result would not overturn the statute. It would just create an option of remittur (agreed reduction in damages) or new trial when a jury is too zealous. If you want to see these types of litigation campaigns reigned in or halted, challenging verdicts is unsatisfying.<br /><br />There is a separate line of Supreme Court cases where civil statutes were challenged as civil in name but criminal in effect. However, the standards set by the court to reclassify a civil statute as criminal are almost insurmountably high. The Copyright Act is not likely, on its face, to meet these standards.<br /><br />Often overlooked is 512(h) of the Copyright Act. RIAA uses this section to obtain subpoenas to force ISPs to turn over customer information associated with specific IP addresses at specific dates and times. In many states, it is illegal for an ISP to provide this information without a subpoena. Under 512(h), the subpoena requires only the approval of a clerk of the court - no judicial officer is involved. <br /><br />Given the recent jury award in Minneapolis, there are significant due process concerns with a civil statute that allows such enormous penalties. Arguably the Copyright Act, at least in file sharing cases, is quasi-criminal because the damages are almost entirely punitive and deterrent in nature. This suggests that issuance of a subpoena should occur only after a judicial review of the evidence supporting the request.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-6663605683122382482009-06-20T02:15:40.654-04:002009-06-20T02:15:40.654-04:00This man is surprised by, among other things, that...This man is surprised by, among other things, that the actual technician who collected the data wasn't required to directly testify. Unless he was being directly supervised during the data collection then this man thinks that all testimony about it would be hearsay.<br /><br />@Btx<br /><b>Something like $750 per song is plausible;</b><br /><br />Surely you jest!<br /><br />@Neroden<br />The Necessary & Proper clause was amended to prohibit excessive fines by the 8th Amendment.<br /><br />Also the term "common law" is explicitly mentioned in the 7th Amendment.<br /><br /><br />{The Common Man Speaking}Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-74526117843289963172009-06-20T01:35:07.589-04:002009-06-20T01:35:07.589-04:00I recently got nailed for jury duty. It was a prop...I recently got nailed for jury duty. It was a property damage case. Long story short, it was a plaintiff against an insurance company, though the insurance company(ies) of the landlord and contractors were never anmed. With the exception of one litle old lady, everyone picked by the lawyers was a college graduate. A lot of people were in salaried positions where they jurors were expected by their employers to meet their due dates. With laptops, the Internet and Blackberrys, it is possible for people to be required to put in very long days between sitting in the courtroom and cranking out their day job work in a telecommuting setting.<br /><br />In the case I was on, it boiled down to the jury setting a dollar figure for damages to the plaintiff. The only reason it went to trial was because the plaintiff must have wanted a million dollars and the insurance company wanted to pay ten dollars.<br /><br />I happen to have stumbled upon a case that I knew some of the dollar figures involved. But, I ran loggerheads with some people who had no idea what anything was worth, especially the little old lady. At one point, I even said the the rest of the jurors, "Look, lets quit torturing ourselves. Award the plaintiff two million dollars. (The plaintiff was due about $10,000.) Then we can get back to our day jobs. Let the insurance company battle it out in appeals court." Before we left the juror's room, we took all the paper we wrote on and stick it in our pockets.<br /><br />I can see these jurors in Minnesota throwing up their hands and awarding an outrageous and impossible sum of money just to end their time on jury duty. They know damn well the case is going to get appealed.RecentJurornoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-59000998266658531252009-06-20T00:09:22.307-04:002009-06-20T00:09:22.307-04:00Begin quote:
Anonymous Quiet Lurker,
Just for cl...Begin quote:<br /><br />Anonymous Quiet Lurker,<br /><br />Just for clarification, the portion of article you quote was testimony on cross.<br /><br />June 19, 2009 11:45:00 AM EDT<br /><br />:end quote<br /><br /><br />I humbly stand corrected.<br /><br />-Quiet LurkerAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-55564151828095582962009-06-19T19:58:39.695-04:002009-06-19T19:58:39.695-04:00Jury should have been instructed to make finding a...Jury should have been instructed to make finding as to when defendant began course of action of using Kazaa to (a) make unauthorized copies, (b) make "distributions" of copies as to each song. As to any copyright registration effective date subsequent to that date, plaintiff would be limited to recovering actual damages, no statutory damages.raybeckermanhttps://www.blogger.com/profile/11063235302436280455noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-41029364119609532142009-06-19T19:39:56.071-04:002009-06-19T19:39:56.071-04:00" the jury could also have wanted to reduce t..." the jury could also have wanted to reduce the fine to $80,000 (total), "<br /><br /> So 80,000.00 ,for 25 songs that<br />would retail through itunes for<br />about 28.00, ( 80,000 is still enough<br />to ruin most people for life ) is<br />reasonable ?<br /><br /> Consider that no evidence was, or<br /> apparently needed to be, shown that<br /> anything was tranferred from a pc<br /> to anyone other than Mediasentry.<br /><br /> This is still reasonable ?<br /> Fair ?<br /><br /> Wait till they come for you.<br /> Don't tell me that 'I don't<br /> download' because it doesn't matter.<br /><br /> An IP as an identifying device is<br /> a crapshoot and MANY innocent people<br />get caught in the net.<br /><br /> You COULD be next.<br /><br /> IF it is ever your turn, think of<br /> how 'reasonable' any of this is.<br /><br />DreddsnikAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-86119789185874929392009-06-19T18:31:29.741-04:002009-06-19T18:31:29.741-04:00On the requirement that plaintiffs prove the effec...On the requirement that plaintiffs prove the effective date of the registrations, didn't they put them into evidence and doesn't that establish the date?facebonehttps://www.blogger.com/profile/04479109567543259392noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-19944197158299844072009-06-19T17:46:20.596-04:002009-06-19T17:46:20.596-04:00If there was anything designed to encourage more f...If there was anything designed to encourage <i>more</i> filesharing in order to screw over the RIAA as much as possible, this verdict is certainly it.<br /><br />{The Common Man Speaking}Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-48602369320051893362009-06-19T17:44:22.459-04:002009-06-19T17:44:22.459-04:00The Peer
You would have to ask the judge. I don&#...The Peer<br /><br />You would have to ask the judge. I don't have a clue as to what his expectations were.<br /><br />Just a biased observerAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-87621416537847533632009-06-19T17:33:19.329-04:002009-06-19T17:33:19.329-04:00Never attribute to malice what can be explained by...Never attribute to malice what can be explained by incompetence. IMHO, the jury could also have wanted to <b>reduce</b> the fine to $80,000 (total), but were so incompetent that they overlooked the "per song" part.<br /><br />If that's the case, and the jury realized their mistake, could they have a legal way to correct it after the fact?cpghostnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-25681814169074225042009-06-19T17:18:52.627-04:002009-06-19T17:18:52.627-04:00biased observer, is it possible that the judge fel...<b>biased observer, is it possible that the judge felt there was more chance of the jury upholding the spirit of the law, rather than the letter of it, which might have set an awkward precedent?</b><br /><br />That's all fine and dandy, but RUINING SOMEONE FINANCIALLY FOR LIFE IS PERFECTLY ACCEPTABLE!!!???<br /><br />If she committed the alleged acts, okay, then prosecute her accordingly. But ruining someone financially for the rest of her life over a couple of dozen songs that wouldn't have cost more than $25??<br /><br />How can a supposed loss of about $25 equate to almost $2,000,000 in damages? Oh, I get it, the $25 dollars they lost in sales on the copies downloaded by their own investigator that was authorized by the copyright holders to do so proves without a doubt that millions of these copies were distributed to the entire world and the poor recording companies should pin it all on Jammie.<br /><br />Explain that to me would you? <br /><br />What's next? Fining people $10,000 because they were caught singing in the shower? Or how about $50,000 because they were humming a song in public? And better yet, we won't let the state collect the fine, we'll let the person/organization who has some mistaken belief "in being entitled" collect the money.<br /><br />I just hope that this gets overturned on appeal/constitutional grounds/something. Otherwise this is going to end up pretty badly for everyone else caught in the RIAA's litigation scam.<br /><br />If this isn't a wake up call for something to be done with the current laws, then I don't know what is.<br /><br />-PO'ed and Angry In The SouthAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-77840388509483080652009-06-19T16:22:13.814-04:002009-06-19T16:22:13.814-04:00" is it possible that the judge felt there wa..." is it possible that the judge felt there was more chance of the jury upholding the spirit of the law, rather than the letter of it,"<br /><br /><br />Jury Instruction 18 pretty much insured a guilty verdict regardless<br />of evidence presented ( IMHO ),<br />So i doubt that.<br /><br />I can't comment on my opinion of<br />the Judges motivation on Ray's Blog.<br /><br /> DreddsnikAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-44714194745242655422009-06-19T16:19:36.649-04:002009-06-19T16:19:36.649-04:00A victory for the hunting dogs!
For the future:
...A victory for the hunting dogs!<br /><br />For the future:<br /><br />Call on the RIAA to prove your hard drive wasn't compromised by a third party using metasploit.<br /><br />Although you may not find expert witnesses at 2600 meetings, you should find people who know where you can find expert witnesses locally.<br /><br />Approach 2600 meetings like a supplicant praying for answers at a temple of tech. Allow the techie's their arrogance, and they will allow you your if/when they have legal questions to ask you.<br /><br />2600 meetings are about sharing knowledge, so may well be strange territory for lawyers used to charging for knowledge. In this case, knowledge may well be one of the few things you have to barter with.<br /><br />As a lawyer at a 2600 meeting for the first time you may well be perceived to be a representative of "The Man" until after you have made your case to the forum. Don't take tech you don't want pwned. Take pen and paper. Courts are paperwork crunching machines, and lawyers hack courts in the same way that hackers hack computers.<br /><br />Above all, read this before attending a 2600 meet.<br /><br />http://www.catb.org/~esr/faqs/smart-questions.htmlAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-6699350016958990992009-06-19T15:07:39.754-04:002009-06-19T15:07:39.754-04:00biased observer, is it possible that the judge fel...biased observer, is it possible that the judge felt there was more chance of the jury upholding the spirit of the law, rather than the letter of it, which might have set an awkward precedent?The Peerhttps://www.blogger.com/profile/06652353880241402561noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-34260611005036348082009-06-19T13:44:34.224-04:002009-06-19T13:44:34.224-04:00For those bashing the expert witness,
It appears...For those bashing the expert witness,<br /><br /> It appears to my uneducated eyes that<br />Jammies expert witness was pretty much<br />'hogtied' and thus unable to testify in <br />any meaningful way, deliberately rendering<br />him useless.<br /><br /> Not his fault. Another marvel of our<br />american 'justice' system.<br /><br /> DreddsnikAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-91409915103010138852009-06-19T11:56:26.513-04:002009-06-19T11:56:26.513-04:00The Peer
In your first post, I agree with paragr...The Peer<br /><br /> In your first post, I agree with paragraph 1, but not with 2. The Copyright act is fully aware of the Internet and online communication, for example the DMCA. If Congress had intended to alter 106, they would have added 123 or whatever and made it a prerequisite for 106 just like 107-122 are now. There is nothing significantly unique about the so called p2p networks. The same functionality can be obtained for example by running a web server and a web browser on the same machine.<br /><br /> On your second post, the Special Verdict Form did not require the the jurors to determine how the copyrights were infringed, only if they were owned, if they were infringed, if the infringement was willful or not, and the damages.<br /><br /> I would have expected the judge to be more specific this time, but this form will not help to identify which (if any) jury instruction cause them to declare infringement.<br /><br />Just a biased observerAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-56916109460865775502009-06-19T11:45:30.026-04:002009-06-19T11:45:30.026-04:00Anonymous Quiet Lurker,
Just for clarification, t...Anonymous Quiet Lurker,<br /><br />Just for clarification, the portion of article you quote was testimony on cross.Marc W. Bourgeoishttps://www.blogger.com/profile/01576505039183403754noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-91828357078478833312009-06-19T10:48:53.303-04:002009-06-19T10:48:53.303-04:00XYZZY,
I'm not sure the criminal analogy is t...XYZZY,<br /><br />I'm not sure the criminal analogy is the best one. The constitution has a provision explicitly preventing the levying of excessive fines by the government. There is no such corollary in civil law. The due process argument under <i>BMW</i> is available but is, I think, a difficult case to make in the context of statutory damages.<br /><br />-fjAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-86856163738165213732009-06-19T10:03:23.813-04:002009-06-19T10:03:23.813-04:00So of which exact clause of the copyright act has ...So of which exact clause of the copyright act has she been found to have fallen foul? Someone on here must know.The Peerhttps://www.blogger.com/profile/06652353880241402561noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-74241348558634404932009-06-19T09:13:25.518-04:002009-06-19T09:13:25.518-04:00Dr. Jacobson's testimony this morning
begin q...Dr. Jacobson's testimony this morning<br /><br />begin quote:<br />Then Mr. Sibley asked about whether or not Dr. Jacobson had an opinion on whether all 1700 songs MediaSentry found evidence of came from CDs or KaZaA, or another source. He testified that he could not tell the original source of the files, and admitted that it would be easy for a user to move files around, such as in to a shared folder, regardless of their original source.<br />---end quote<br /><br />posted by Marc W. Bourgeois @ 6/16/2009 02:00:00 PM<br /><br />-from this very blog.<br /><br />The <i>plaintiff's expert</i> cannot state where those files came from. I gather that this was on direct. Doesn't that qualify as impeaching your own witness?<br /><br />Exhibit 4, certificates of registration, were excluded; the plaintiffs own expert disavows any knowledge of the source of the files in question, and there's a preponderance of evidence showing defendant <b>purchased</b> discs containing many of the tracks found. There's no evidence of p2p software and (possibly) another hard drive.<br /><br />The jury finds in favor of plaintiffs, awarding $1.9M to same.<br /><br />I KNOW I'm about to brand myself a kook for saying this, but methinks I smell a rat.<br /><br />-Quiet LurkerAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-19385039051629189282009-06-19T09:09:26.691-04:002009-06-19T09:09:26.691-04:00The Peer,
I think p2p would fall under a performa...The Peer,<br /><br />I think p2p would fall under a performance to the public; although for that to be the case they have to show that someone else downloaded the song since her own downloading would not count despite the RIAA's claims.<br /><br />Let's say the harm per infringement is $0.79 and willful infringement is 4x$0.79 ( a little on the generous side since wholesale is probably half this ). Let's also pre-suppose that the infringing files are 4 mb in size and that she had a 1mbps upload ( that would have been very fast for that time ).<br /><br />In order to justify $80k/infringement, 1.92M dollars, at $3.16/incident they are claiming that she uploaded 19.43 terabits of data which equivalent to maxing out her 1mbps connection for 7.5 months ( assuming she even had 1mbps and could sustain those upload speeds 24/7/365. Realistically her sustained upload was probably more likely 1/4 that rate which means it would have taken almost 2.5 years years to reach that many copies.<br /><br />This still does not explain the RIAA's pursuit of this case since they have to know that she has only has a token amount of assets to claim at this point.<br /><br />I would also love to see the appeal and hear her lawyers explanation for the poor job they did at trial. Even with an appeal on constitutional grounds she has still be tried and found culpable for the willful infringement which the courts will find hard to deny at this point.Erichttps://www.blogger.com/profile/07719707203372377982noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-80269182968050500762009-06-19T08:40:18.433-04:002009-06-19T08:40:18.433-04:00The Peer:
You're wrong. There are various ri...The Peer:<br /><br />You're wrong. There are various rights exclusive to copyright holders, and while the distribution right doesn't lend itself well to P2P cases, others do.<br /><br />-ytAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-27579935322697940702009-06-19T08:28:10.610-04:002009-06-19T08:28:10.610-04:00They professed to have no knowledge of the first t...They professed to have no knowledge of the first trial.raybeckermanhttps://www.blogger.com/profile/11063235302436280455noreply@blogger.com