Recording Industry vs The People

The RIAA has made a motion for a protective order to keep its revenue information secret in SONY BMG Music Entertainment v. Tenenbaum.

Plaintiffs' motion for protective order for revenue information

[Ed. Note. This motion is a sham. I sincerely hope Judge Gertner denies it. It is ludicrous for 4 competitors to be jointly moving to keep the information confidential. As any observer of the RIAA litigations knows, there is one and only one reason for making this motion : to make it more costly for other defendants' lawyers to get this information when they need it. I.e., it is part and parcel of the RIAA's strategy of making the costs of defense as high as possible. Hopefully Judge Gertner will see through this rank gamesmanship. -R.B.]




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posted by Ray Beckerman @ 7/10/2009 05:01:00 PM 1 Comments Links to this post

Plaintiffs have filed papers opposing defendant's motion for leave to have expert witness testimony from an ethnomusicologist, in SONY BMG Music Entertainment v. Tenenbaum.

Opposition to motion for leave to call ethnomusicologist as expert witness



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posted by Ray Beckerman @ 7/10/2009 02:21:00 PM 0 Comments Links to this post

Came across this Huffington Post story thanks to @NWatzman on Twitter.

What chance do musicians, filmmakers, and consumers have for fair and balanced copyright legislation when the RIAA is allowed to wine and dine our legislators behind closed doors? It is a national disgrace.

We need legislation to prevent this type of corruption. Now.

I am sick.

-R.B.

Commentary & discussion:

p2pnet.net





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

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posted by Ray Beckerman @ 7/10/2009 12:52:00 PM 2 Comments Links to this post

The RIAA has filed a reply responding to the Nesson response in SONY BMG Music Entertainment v. Tenenbaum.

Plaintiffs' reply to Nesson response



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posted by Ray Beckerman @ 7/09/2009 06:11:00 PM 12 Comments Links to this post

In Fairey v. Associated Press, the fair use litigation in which Associated Press accuses artist Shepard Fairey of copyright infringement in connection with a painting he did based upon a portion of a photograph which appeared in the AP, the actual photographer -- Manuel Garcia -- has now moved to intervene in the action, claiming that he -- and not the Associated Press -- is the owner of the copyright in the photograph.

Memorandum of Law in support of intervention motion





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posted by Ray Beckerman @ 7/09/2009 04:39:00 PM 5 Comments Links to this post

Prof. Nesson has filed his response to the order to show cause in SONY BMG Music Entertainment. v. Tenenbaum.

Response to order to show cause




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posted by Ray Beckerman @ 7/09/2009 02:33:00 PM 3 Comments Links to this post

According to this article in p2pnet.net, Kazaa, which is now a business partner of the RIAA/Big 4 record companies, is referring to the Jammie Thomas-Rasset case in its advertising, saying "they" are going to "come at you like they came at tereastarr".



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posted by Ray Beckerman @ 7/08/2009 04:13:00 PM 3 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, the RIAA has filed papers opposing defendant's motion objecting to the admissibility of the MediaSentry materials.

Plaintiffs' opposition to defendant's motion to suppress MediaSentry materials



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posted by Ray Beckerman @ 7/07/2009 06:25:00 PM 10 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, defendant has been ordered to show cause why he or his counsel should not be sanctioned for violation of the Court's order regarding unauthorized reproduction.

Judge Nancy Gertner: Electronic ORDER entered; "The Court is deeply concerned that the Defendant has violated the Court's June 16, 2009 Order [850] as well as the Court's oral order at the June 26, 2009 hearing. Both orders made clear that deposition recordings, while permitted within the terms of Rule 30(b)(3), were not to be made public via the internet. Indeed, at the hearing, the Court said that "recording" the upcoming deposition did not mean "posting it on the internet," to which Mr. Nesson replied, "Okay. Thank you." Although Mr. Nesson did not object to the order, seek to clarify it, or raise any issue with respect to either the fact of the order or its breadth, he nevertheless made portions of the Palfrey deposition available to the public on the Berkman Center website. See http://cyber.law.harvard.edu/~nesson/palfrey%20_deposition01.mp3 (last visited July 7, 2009); http://cyber.law.harvard.edu/~nesson/after_my_tweet.mp3 (last visited July 7, 2009). As a result, the Defendant is hereby ORDERED to SHOW CAUSE, by July 9, 2009, why he or his counsel should not be sanctioned for what appears to be blatant disregard of a court order on an issue that the Court has addressed repeatedly in this case."

Commentary & discussion:

Slashdot
Excess Copyright
p2pnet.net






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posted by Ray Beckerman @ 7/07/2009 02:52:00 PM 15 Comments Links to this post

The defendant has moved for a new trial in Capitol Records v. Thomas-Rasset.

Defendant's brief (PDF) argues, among other things, that the 'monstrous' sized verdict violates the Due Process Clause, consistent with 100 years of SCOTUS jurisprudence, since it is grossly disproportionate to any actual damages sustained. It further argues that, since the RIAA elected to offer no evidence of actual damages, either as an alternative to statutory damages, or to buttress the fairness of a statutory damages award, the verdict, if it is to be reduced, must be reduced to zero.

Defendant's motion for new trial

Commentary & discussion:

Slashdot
p2pnet.net





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posted by Ray Beckerman @ 7/06/2009 06:14:00 PM 20 Comments Links to this post

The RIAA has moved to amend the judgment to add an injunction in Capitol Records v. Thomas-Rasset.

Plaintiffs' motion to amend judgment

Commentary & discussion:

Det Standard (German)





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posted by Ray Beckerman @ 7/06/2009 05:59:00 PM 6 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, the RIAA has made a motion for discovery sanctions and for a protective order barring unofficial recordings, and directing defendant's counsel to remove and destroy materials allegedly posted publicly.

Plaintiffs' Motion for Discovery Sanctions & Protective Order



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posted by Ray Beckerman @ 7/06/2009 10:55:00 AM 7 Comments Links to this post

According to this report in p2pnet.net, the attorneys for Jammie Thomas-Rasset have indicated that they are planning to file an appeal in Capitol Records v. Thomas-Rasset.



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posted by Ray Beckerman @ 7/02/2009 01:10:00 PM 7 Comments Links to this post

In Capitol Records v. Thomas-Rasset, the court has entered an order allowing the attorneys in the case to contact the jurors.

Order allowing attorneys to contact jurors




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posted by Ray Beckerman @ 7/02/2009 01:06:00 PM 4 Comments Links to this post

We are pleased to report that "Recording Industry vs. The People" has passed the 3 million visitor mark. Since we began counting, we have had 3,027,314 visitors, and 4,343,631 page views. We presently average 2000 visitors a day.

Thank you all for your support.

-R.B.



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posted by Ray Beckerman @ 7/01/2009 02:30:00 PM 2 Comments Links to this post

In Arista Records v. Usenet.com, Inc., both of the RIAA's motions -- for discovery sanctions and for summary judgment -- have been granted, and the matter referred to the Magistrate Judge for determination of damages and an appropriate injunction.

Decision granting plaintiffs' motions
Order of reference to Magistrate Judge

Commentary & discussion:

Slashdot
p2pnet.net
ZeroPaid
e-Discovery Team






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posted by Ray Beckerman @ 6/30/2009 04:28:00 PM 10 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, the Court has denied defendant's motion to compel interrogatory answers, but ordered plaintiffs to produce certain sales information. The court's order is as follows:

Judge Nancy Gertner: Electronic ORDER entered granting in part and denying in part [852] Motion to Compel. "The Defendant's Motion to Compel [852] is GRANTED in part and DENIED in part. As a general matter, the Defendant's discovery requests are untimely under Fed.R.Civ.P. 33(b)(2). Counsel filed his appearance in this case on September 22, 2008, when discovery was already underway. Yet he did not file his First Set of Interrogatories until May 8, 2009, more than seven months later, when the Court had already ordered that discovery would close on May 30, 2009. See February 23, 2009 Order at 3 (document # 759). Rule 33(b)(2) provides that a party shall have 30 days from the date of service to respond to interrogatories, unless that period is altered by stipulation or court order. As a result, in order to be considered timely, such requests must be served with enough time for responses to be made before the discovery deadline. See Thomas v. Pacificorp, 324 F.3d 1176, 1179 (10th Cir. 2003); Ginett v. Federal Express Corp., 166 F.3d 1213 (6th Cir. 1998) (unpublished); Whitman v. Proconex, Inc., 2009 WL 113740, at *4 (E.D. Pa. 2009); Williams v. Little Rock Mun. Water Works, 155 F.R.D. 188, 189 (E.D. Ark. 1993). Defendant's counsel protests that the case did not crystallize until early May and that his team's energies were consumed by the abuse of process counterclaims that the Court has now dismissed, the constitutional challenge that the Court has deferred, and the webcast dispute. Lawyers, however, constantly face strategic choices about how to expend limited time and resources to advance their client's case. Discovery is obviously a central tool in defending against a civil suit; it is hardly an afterthought. Moreover, many of the issues raised in the interrogatories -- the ownership of the copyrighted works and factors relating to damages -- have been at the core of this case from its inception. Having delayed seeking this discovery until the deadline was weeks away, and having failed to request a timely extension from the Court, Tenenbaum has forfeited his right to compel the Plaintiff to answer any interrogatories unrelated to the fair use issue. However, because the Court has held discovery open on fair use, discovery requests on this subject served prior to June 22, 2009, the deadline set by the Court, are treated as timely. See Revised Scheduling Order at 5 (document # 850). Yet even here the Defendant's late-breaking effort to add the fair use defense, and the imminent trial date reaffirmed today by the parties, necessarily limits the breadth of the available discovery. See Fed.R.Civ.P. 26(b)(2)(C). Thus, to the extent that Interrogatories 2, 3, and 8 seek information related to the fair use analysis under 17 U.S.C. 107(4) (requiring consideration of "the effect of the use upon the potential market for or value of the copyrighted work"), the Court will permit some investigation. By July 10, 2009, the Plaintiffs shall provide the Defendant with yearly estimates, beginning in 1999, of the revenues generated by their copyrights in the specific songs for which they intend to prove infringement at trial. They should separate physical and digital music sales and should provide Defendant with a description of the methodology used to arrive at these figures. The Court will reconsider the need for discovery on any issues relating to actual damages if and when the Defendant's constitutional challenge becomes ripe -- i.e., should the jury award damages against him." (Gaudet, Jennifer)

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posted by Ray Beckerman @ 6/30/2009 01:14:00 PM 3 Comments Links to this post

The plaintiffs' motion to exclude the proposed expert testimony of former Grateful Dead lyricist John Perry Barlow has been granted, in SONY BMG Music Entertainment v. Tenenbaum. The court's order is as follows:

Judge Nancy Gertner: Electronic ORDER entered granting [855] Motion to Strike. "The Plaintiffs' Motion to Exclude Defendant's Expert John Perry Barlow [855] is GRANTED. The Defendant has indicated that no supplemental Expert Report will be forthcoming, therefore the Court considers the Amended Declaration presently before it (document # 855-2). This report indicates that Mr. Barlow proposes to testify on two main subjects relating to the "fairness of peer-to-peer file sharing in the context of the recording industry": (1) the impact of file sharing on the music industry's business model; and (2) how peer-to-peer technology furthers a fundamental human need to "share art." Id. at 2. Philosophical pronouncements like those in the latter category are not within the scope of expert testimony and the Court cannot give them the imprimatur of "expertise" at trial. Counsel for the Defendant analogized Barlow to the truck driver who offers expert testimony in an accident case on such things as the impact of a load shifting while driving. The analogy is misplaced: If Barlow were to testify about the creative process in which he has been engaged, that would be a matter of expertise drawn from experience. But he seeks to testify about market conditions, on the one hand, and philosophy and policy on the other. The truck driver who is an expert about trucking would not be permitted to testify, for example, about either existentialism or GM's bankruptcy. At most, the policy-judgments that Barlow intends to present may be better suited to testimony before Congress than testimony before a jury. If appropriate anywhere in the courtroom -- a question which the Court reserves -- these considerations belong in counsel's closing argument. With respect to the concrete impact of file sharing on the music industry, Barlow has not identified any data or publication that will support his views, nor does he describe in any depth the conclusions that he would draw from his "personal experiences in the music industry." Id. As a result, he has not provided the Plaintiffs with any basis on which they might examine him. Most notably, Barlow's four-page report fails to include "a complete statement of all opinions the witness will express and the basis and reasons for them," and "the data or other information considered by the witness in forming them." Fed.R.Civ.P. 26(a)(2)(B). It is not enough for Barlow to state that he will rely on his personal experience to testify broadly about a number of topics related to file sharing; an expert must actually disclose the testimony he intends to offer at trial, as completely as possible, and the specific foundation for his opinions. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 641 (7th Cir. 2008). The Rules of Civil Procedure require Barlow to offer those opinions in a manner that enables the opposing party to prepare adequately for trial. The Amended Declaration does not come close to that threshold, and therefore he is excluded as an expert pursuant to Fed.R.Civ.P. 37(c)(1)." (Gaudet, Jennifer)

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posted by Ray Beckerman @ 6/30/2009 12:58:00 PM 2 Comments Links to this post

Hat tip to Jon Newton of p2pnet.net for pointing out that the RIAA told the Kansas City Business Journal in early March, 2006, that it had sued 18,000 people. For the next 2 1/2 years or so it was commencing suits at a rate of approximately 10,000 per year.

Commentary & discussion:

Ars Technica





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posted by Ray Beckerman @ 6/29/2009 01:09:00 PM 1 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, the defendant has sought leave to file an expert witness report of Dr. Wayne Marshall, an ethnomusicologist who is presently a Mellon Fellow at MIT.

Expert Report of Dr. Wayne Marshall
Curriculum vitae
Motion for Leave to file Wayne Marshall report

Commentary & discussion:

p2pnet.net





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posted by Ray Beckerman @ 6/29/2009 12:42:00 PM 10 Comments Links to this post

According to this report in THREsq, The United States Supreme Court has denied the film industry's petition for certiorari in Cartoon Networks v. CSC Holdings, leaving standing the decision of the US Court of Appeals for the Second Circuit that the cable company had not infringed plaintiffs' copyrights by offering its customers online video storage for replay on recall.



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posted by Ray Beckerman @ 6/29/2009 10:50:00 AM 1 Comments Links to this post

In this report in Digital Music News, Matthew Oppenheim's recent declaration that there were only 18,000 people "contacted" by the RIAA is questioned.





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posted by Ray Beckerman @ 6/29/2009 10:26:00 AM 0 Comments Links to this post

According to court papers filed by the RIAA in Andersen v. Atlantic Recording, in opposition to plaintiff's motion for class action certification, Matthew Oppenheim has claimed that in the entire course of the RIAA's campaign, they have "contacted" a total of 18,000 people, of whom 4,000 have settled.

Oppenheim declaration
Coggon declaration
Plaintiffs' memorandum of law in opposition to class certification

[Ed. note. I'm pretty sure I saw an RIAA press release about 4 years ago which said that the number sued as of that time was around 25,000. -R.B.]

Commentary & discussion:

p2pnet.net
Digital Music News
ZeroPaid
Ars Technica




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posted by Ray Beckerman @ 6/28/2009 05:27:00 PM 15 Comments Links to this post

For those of you who have or want to open PACER accounts, and want to help out in the fight against the RIAA's litigation campaign, here is a watch list of cases which I'd appreciate your monitoring whenever you can.

This is not an all-inclusive list of cases we are watching, but just a select list of cases that need extra watching for various reasons.

If anything happens in one of these cases, please email me the *pdf's. This will be a recurring post, in which cases will be added to and subtracted from the list, so bookmark the permalink near the bottom of this post.

The PACER login page is here. To sign up for PACER go here.

Please look only for documents subsequent to June 27, 2009.

Instructions: Log in. Go to district court, then input case number. Request "docket report". If there is new activity, download *pdf file and email to me. (If you're not sure if it's important enough, email me and ask.) Thanks. -R.B.

Commentary & discussion:

p2pnet.net

Keywords: 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

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posted by Ray Beckerman @ 6/28/2009 05:00:00 PM 11 Comments Links to this post

In Lava Records v. Amurao II, the RIAA's case against Rolando Amurao's daughter Audrey, the defendant has moved for summary judgment dismissing the complaint, on the basis of the statute of limitations, the insufficiency of the plaintiffs' moving papers, the legal insufficiency of the RIAA's case for "making available", and unconstitutionality of the RIAA's "statutory damages" theory.

Defendant's memorandum of law in support of defendant's motion for summary judgment

Commentary & discussion:

Slashdot
p2pnet.net





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posted by Ray Beckerman @ 6/27/2009 06:28:00 PM 5 Comments Links to this post

In its case targeting students at the State University of New York at Albany, Arista Records v. Does 1-16, the RIAA has filed its Appellees' Brief in the US Court of Appeals for the Second Circuit.

The "John Doe" proceeding in the court below has been stayed pending the determination of the appeal.

Appellees' Brief



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

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posted by Ray Beckerman @ 6/27/2009 06:22:00 PM 4 Comments Links to this post

For those practitioners advising clients as to the dischargeability of judgments for wilful copyright infringement in bankruptcy, The Electronic Frontier Foundation has on its site an excellent memo, "Dischargeability of copyright judgments in personal bankruptcy" (pdf), by Fred Von Lohmann, which presents a worthy entree into the subject.




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posted by Ray Beckerman @ 6/26/2009 07:41:00 PM 1 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, the RIAA has asked the Court to deny defendant's motion to compel plaintiffs to respond to the outstanding interrogatories.

Opposition to defendant's motion to compel answers to interrogatories

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

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posted by Ray Beckerman @ 6/26/2009 05:08:00 PM 2 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, the RIAA has sought to bar one of defendant's expert witnesses, former Grateful Dead lyricist John Perry Barlow, from testifying.

Motion to exclude expert witness Barlow

Commentary & discussion:

p2pnet.net




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posted by Ray Beckerman @ 6/26/2009 05:04:00 PM 1 Comments Links to this post

According to this report in p2pnet.net, Richard Marx -- whose song was one of those played at the trial in Capitol Records v. Thomas-Rasset, has criticized the RIAA and the verdict.



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

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posted by Ray Beckerman @ 6/24/2009 04:41:00 PM 5 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, the Court has scheduled a June 29th hearing on defendant's motion to compel the plaintiffs to respond to the outstanding interrogatories, and Prof. Nesson has filed a "response" to the Court's June 16th order.

Docket entry for hearing:

ELECTRONIC NOTICE of Hearing on Motion [852] MOTION to Compel Plaintiffs to Respond to Defendant's First Set of Interrogatories: Motion Hearing set for 6/29/2009 09:30 AM in Courtroom 2 before Judge Nancy Gertner. (Molloy, Maryellen)

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posted by Ray Beckerman @ 6/24/2009 03:52:00 PM 10 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, defendant has filed a motion objecting to the inadmissibility of MediaSentry materials on the ground of illegality.

Motion objecting to MediaSentry evidence

Commentary & discussion:

p2pnet.net





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

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posted by Ray Beckerman @ 6/23/2009 06:11:00 PM 10 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, defendant has moved to compel the plaintiffs to respond to defendant's outstanding interrogatories.

Defendant's motion to compel plaintiffs' responses to interrogatories



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

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posted by Ray Beckerman @ 6/23/2009 04:15:00 PM 8 Comments Links to this post

Tomorrow evening, Wednesday, June 24th, at 7:00 PM (EST), I will be a guest on the Off The Hook radio show, hosted by Emmanuel Goldstein, with panel including "Bernie S" and Rob Vincent, a/k/a Rob_T_Firefly of Twitter and Slashdot fame.

Commentary & discussion:

me*dia*or





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

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posted by Ray Beckerman @ 6/23/2009 03:03:00 PM 0 Comments Links to this post

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:

p2pnet.net
Slashdot
ZDNet
Weekly Music News





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

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posted by Ray Beckerman @ 6/23/2009 07:49:00 AM 17 Comments Links to this post

According to this report in Torrent Freak, the anti-filesharing lawyers in Norway have lost their license to pursue cases of that nature.



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

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posted by Ray Beckerman @ 6/22/2009 10:29:00 PM 2 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, the RIAA has made a motion to punish Joel Tenenbaum by assessing attorneys fees and costs against him for the RIAA's motion to compel discovery, which the Court had granted.

Plaintiffs' motion to assess attorneys fees & costs against Joel Tenenbaum




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

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posted by Ray Beckerman @ 6/22/2009 08:03:00 PM 8 Comments Links to this post

Received this welcome report from the Franklin Pierce Law Center, whose clinical program has been defending Mavis Roy, in New Hampshire, in UMG Recordings v. Roy:

Clinics Post Victory in Downloading Case

After nearly a year of research, litigating and negotiating, students in Franklin Pierce Law Center's Consumer and Commercial Law and Intellectual Property and Transaction Clinics have posted a victory in a music downloading case brought in U.S. District Court by members of the Recording Industry Association of America (RIAA) against Mavis Roy.

Roy, of Hudson, New Hampshire, had been charged by four record labels with downloading and distributing hundreds of songs from the Internet. A letter from the record companies' attorneys in July 2007 directed her to a web site where she could pay by credit card to settle the case. Since she did not have a computer in her house at the time she was alleged to have downloaded the music, she ignored the requests. "For many months she thought it was just a scam," Pierce Law Clinic director Peter Wright is quoted in a story about the Clinics' involvement in the case in The Union Leader of January 26, 2009.

The Clinics appeared on her behalf in the federal law suit and the parties agreed to open the default judgment that had been entered so Roy could mount her defense. During the next eleven months both sides thoroughly investigated, researched and prepared for trial. Central to the Roy defense was a very compelling expert report from Dr. Sergey Bratus, Research Assistant Professor at Dartmouth College Department of Computer Science, that seriously challenged RIAA's evidence linking the downloading activity to Roy's computer.

Two weeks after Dr. Bratus' report was disclosed and on the eve of depositions which had been scheduled for Roy and her entire family, a settlement was reached. Under the terms of settlement, the case is dismissed with prejudice and neither side is paying the other any money.

Intellectual Property and Transaction Clinic Professor Ashlyn Lembree said of the students working on the case, "They really felt for Mavis and worked very hard to learn all the ins and outs of networks and Internet service to provide her with the best defense."

In a letter expressing her gratitude to the Clinics and their students for working so hard for her, Mavis noted that despite the positive outcome of her case, she is "still unsettled that the record companies are able to treat upstanding American Citizens this way."

This was one of several RIAA downloading cases still active in the courts. The RIAA has announced that it will discontinue pursuing litigation against individuals where downloading is suspected, looking instead to the Internet providers to deter such activity.

In Pierce Law Clinics, students gain practical experience researching cases, deposing clients, preparing strategies, even presenting arguments during trial. Students are eligible for clinic work after they have completed their 1L year.

Commentary & discussion:

Concord Monitor
Slashdot
Nashua Telegraph
p2pnet.net
p2pnet.net (6/22)
electronista
HardOCP
Gizmodo

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posted by Ray Beckerman @ 6/20/2009 01:11:00 PM 14 Comments Links to this post

In Capitol Records v. Thomas-Rasset, the jury has returned a verdict in favor of plaintiffs in the amount of $1,920,000.00, or $80,000.00 per song file. I.e. 228,571 times the actual damages.

[Ed. note. Well I guess there is going to be a third trial.

I hope that during the next trial the RIAA's technical evidence will be challenged, the defendant's expert will not be precluded, the issue of recoverability of statutory damages will be tested, and the plaintiffs will be required to prove (a) dissemination of copies (b) to the public, (c) by a sale or other transfer of ownership, or by lease, rental, or lending, before being deemed to have shown an infringement of the distribution right.

I also hope that this time the judge and the lawyers will not overlook 17 USC 412 and caselaw about what needs to be shown in order to obtain statutory, as opposed to actual, damages.

The size of the verdict provides ammunition to those of us who are making the constitutionality argument as to the RIAA's mad statutory damages theories.

On a PR note, it is clear from reports I am seeing that this verdict is making the US an international laughingstock, providing great fuel to those inclined to laugh in their beer at the US justice system. When will the courts do something to stop this madness? -RB]

Commentary & discussion:

p2pnet.net
Slashdot
ZDNet
BetaNews
Digital Media Wire
Barrapunto (Spanish)
QGL
Politicomix
Meneame (Spanish)
Heise Online (German)
Electronic Frontier Foundation
Computer World
Groklaw
Gazeta.pl
Winfuture
ShellyPalmerMedia.com
p2pnet.net
The Inquirer
Overlawyered
Wikipedia
Punto Informatico
Bridge Nine
Big Footy
GearSlutz
AusGamers
Piraattiliitto (Finnish)
Althouse
Associated Press (via KATU Portland
p2pnet.net
Groklaw
Chicago Tribune
NDNation
Club Delphi
TechJournal
Slyck
Neowin.net
Kaaahn
SemiAccurate (prior to verdict)
SemiAccurate (after verdict)
Door64
ZDNet (6/19)
Raw Story
Doom 9
Heise Online (6/20) (German)
ItCafe (Hungarian)






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

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posted by Ray Beckerman @ 6/19/2009 01:56:00 PM 63 Comments Links to this post

Labels: bymarc

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posted by Marc W. Bourgeois @ 6/19/2009 12:16:00 PM 0 Comments Links to this post

Hello Everyone,

I'm just writing to say I will be leaving Minneapolis shortly. It has been a pleasure to write about the events of the case for all readers, and I appreciate your tolerance of all the spelling and gramatical errors that I'm sure I have made.

I will make an attempt to answer any questions or comments that people have of which I may be able to provide insight when I arrive at my destination either very late this evening or sometime tomorrow.

Thank you for reading.

-Marc W. Bourgeois

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

Labels: bymarc

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posted by Marc W. Bourgeois @ 6/18/2009 06:31:00 PM 1 Comments Links to this post

I just wanted to take this opportunity to thank Marc Bourgeois for the great job he did as my correspondent.

Marc, if you're available for Trial #3, let me know. Same salary, same benefits.



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

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posted by Ray Beckerman @ 6/18/2009 06:28:00 PM 1 Comments Links to this post

Labels: bymarc

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posted by Marc W. Bourgeois @ 6/18/2009 06:25:00 PM 2 Comments Links to this post

Labels: bymarc

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posted by Marc W. Bourgeois @ 6/18/2009 05:27:00 PM 7 Comments Links to this post

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posted by Marc W. Bourgeois @ 6/18/2009 04:50:00 PM 0 Comments Links to this post

We've just gotten a copy of the blank special verdict form in Capitol Records v. Thomas-Rasset

Special verdict form

[Ed. note. The form seems to be instructing the jury that each song file, even if it is one of several on the same album, represents a separate infringement. That is not correct, as I recall. Disturbingly, neither the instructions nor the verdict form contains any instruction or inquiry about the effective dates of the copyright registration, or the date the alleged use of Kazaa began, which would be needed in order to establish a right to statutory -- as opposed to compensatory -- damages. See practice tip. The judge just seemed to assume that if there was an infringement, plaintiffs are entitled to statutory damages, regardless of the dates. -R.B.]



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

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posted by Ray Beckerman @ 6/18/2009 04:05:00 PM 0 Comments Links to this post

6/18/09

Ars Technica

6/17/09

p2pnet.net
SemiAccurate


6/16/09

p2pnet.net
Heise Online (German)
Ars Technica
Associated Press (via e-Commerce Times)
BetaNews
Ars Technica


6/15/09

Ars Technica
Minneapolis Star Tribune
SemiAccurate




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

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posted by Ray Beckerman @ 6/18/2009 03:15:00 PM 0 Comments Links to this post

We now have a copy of the jury instructions in Capitol Records v. Thomas-Rasset.

Jury Instructions

[Ed. note. The instructions do not define or explain what a distribution is. I.e. they do not instruct the jury that plaintiffs have to prove a dissemination of copies to the public, or that there must have been a sale or other transfer of ownership, or a lease, rental, or lending. In view of how we got to this point, I'm a bit surprised at that. -R.B.]



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posted by Ray Beckerman @ 6/18/2009 01:46:00 PM 5 Comments Links to this post

Mr. Reynolds thanks the jury again for his service and begins his closing argument.

He contends that many theroies and possiblites of what happened in this case were raised by the defendant for the first time yesterday. He argued that Mr. Sibley for the defense didn't talk about the evidence in his closing, because he couldn't. Mr. Reynolds argues that the evidence shows she did it.

He explains to the jury the two elements that Plaintiffs must prove to show copyright infringement. First, that they own and control the copyrights for the works in question. He spent a few minutes referencing the record company executive testimony and the copyright registration which he contends proves that they do in fact own copyrights in all the works in the case. He then explains that Plaintiffs rights were violated by the defendant downloading or distributing the sound recordings.

He then went back to reference Mr. Sibley's closing and noted to the jury that he used words such as "sentence" and "guity" and that those words do not apply here because they only apply to criminal cases. He explained that they will be instructed to find based on the greater weight of the evidence whether or not Ms. Thomas-Rasset violated their copyrights, to which he says they have.

He speaks about the evidence of infringement was that:

• It happened
• She did it and knew it was wrong

He then went on to explain the MediaSentry evidence. They found a user distributing 1702 sound files using the username tereastarr@KaZaA. He then explained again that they would not see evidence of anyone else tereastarr@KaZaA was distributing music to, because the KaZaA application does not keep these logs. But based on the evidence they could be certain that distribution did happen to more parties that just MediaSentry.

He then went on to argue that there is no question that these works were reproduced, and that the metadata in some works (showing the pirate ripping group descriptions in a few tracks) prove that these were not ripped by Ms. Thomas-Rasset, but downloaded from the internet. He also stated that there is no question that someone with the tereastarr username did it.

He asked the jurors to ask themselves the question "Did Jammie Thomas-Rasset do it?"

He then displayed on courtroom monitors a visual he hoped would demonstrate his points.

The exhibit showed five items: a cable modem MAC address and IP address, the tereastarr username, that her computer was password protected, that she was sent instant messages, and that the shared folder music matches her musical tastes. All five things were represented somehow in graphical form with a red arrow from each to a name in the middle of the screen: Jammie Thomas.

He then talked to the jury about each of these five things. Charter showed that the IP address and modem MAC address a the date and time in question was linked to an internet account that she subscribed to.

The tereastarr username was one that she used. Yesterday was the first time she had ever mentioned somsone else close to her family may have used that username.

Her computer was password protected, and only she had access to the tereastarr account. Again Mr. Reynolds brings up that yesterday was the first time there was testimony indicating other people could use the family account on the machine.

He said MediaSentry evidence confirmed that instant messages were recieved by the computer that they were sent to.

He pointed that over sixty artitst in the shared folder are artists that match the music tastes of Ms. Thomas-Rassets, and lists several bands which she has admitted to enjoying which he does not believe are household names to the jury. He again mentioned that yesterday was the first time she testified about music in the shared folder that was not a match to her musical tastes.

Mr. Reynolds continued on the musical tastes comparison a bit longer, bringing to light some of yesterdays testimony that there were some songs in the shared folder with offensive words. Ms. Thomas-Rasset testified that some of this music didn't match her tastes. Mr. Reynolds pointed out some songs from her own collection that had offensive words. He asked the jury to decide if Ms. Thomas-Rasset would be offended by this music she claims to not match her tastes.

He pointed out to the jury again that there were sixty or more artists in the shared folder that she did enjoy.

The argument the turned to Ms. Thomas-Rasset's previous knowledge about Napster. Mr. Reynolds again spoke about her previous study of Napster in college and her subsequently finding out that the service was not legal. He then tried to paint the picture that someone with this knowledge about computers and Napster he was surprised that she would not have known about KaZaA before this trial.

He claims that what the jury has gotten from Ms. Thomas-Rasset is misdirections, accusations, and new evidence, and that was Plaintiffs offer is none of this.

He stated that MediaSentry found evidence of infringement in 2005, but the songs could have been downloaded much earlier. He again claimed that the CDs she had bought were not relevant and not the source of the music given the metadata evidence about "pirate ripping groups". He contended to the jury that even with Ms. Thomas-Rasset's new accusations it is still more likely than not that she did it.

Mr. Reynolds then turned to the testimony about the hard drive. He stated that they don't know what happened to the hard drive, and whether Ms. Thomas had it when Plaintiffs asked for it or not. But what she did do is deliberatley give both her own and Plaintiffs a new hard drive for expert examination. He states that she deliberately gave the wrong dates for the purchase of the computer and the replacement of the hard drive to cover up evidence. He asked the jury to decide if she has changed her story.

Mr. Reynolds then talked about damages. He states that they never asked for or demanded $3.6 million dollars from Ms. Thomas-Rasset. He said they offered to settle the case for $5,000 many years ago and that she refused to take responsibility.

He then responded to Mr. Sibley's argument that the record company executives that found this case important had all left. He stated that they are busy trying to maintain their business so they can continue to employ many people in the recording industry and that Plaintiffs have not abandonded the courtroom, as Ms. Pariser, plaintiff's representative has been present throughout the entire trial. He then responded to attacks he claims defendant has made against Dr. Jacobson. He states that Dr. Jacobson is trusted to do work for many police departments, government agencies, and given testimony to the U.S. Senate. He argues that those people trust Dr. Jacobson and that the jurors should as well.

He then tells the jury that credibility of all witnesses is for them to determine and that even the defendant does not believe the new possiblities that were presented yesterday. He states that copyright infringement has a huge effect on the recording industry, the evidence states Ms. Thomas-Rasset did it, refused to accept responsiblity and tried to hide it.

He then talked about the damages the jury could award, again stating that copyright infringement has a huge effect on the industry. He argued that the jury can consider many factors, mentioned that the need for deterence was great, and that ultimately the amount of damages to award was completed in the jurys decision.

He ended his closing by asking the jury to hold Ms. Thomas-Rasset responsible.

The court took a 15 minute recess before the jury was charged. They were read the jury instructions and began selecting their foreperson and deliberations at 11:00AM. They will break for lunch as 12:00 and resume at 1:00PM. Deliberations will continue until 5:00PM, unless they conclude earlier.

Labels: bymarc

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posted by Marc W. Bourgeois @ 6/18/2009 12:59:00 PM 1 Comments Links to this post

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

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posted by Marc W. Bourgeois @ 6/18/2009 12:20:00 PM 6 Comments Links to this post

In Capitol Records v. Thomas-Rasset, the parties have completed their closing statements, the jury has been charged, and the jurors have begun their deliberations.



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posted by Ray Beckerman @ 6/18/2009 12:17:00 PM 0 Comments Links to this post

Tweets from our correspondent Marc Bourgeois (@mwbourgeois):

Tweets from one of our faithful readers who is is attending the trial, @SemiAccurate:

Commentary & discussion:

p2pnet.net





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posted by Ray Beckerman @ 6/18/2009 10:53:00 AM 0 Comments Links to this post

In Atlantic Recording v. Raleigh, the defendant's counterclaims have been dismissed.

Decision dismissing counterclaims
Order dismissing countreclaims
Amended answer and counterclaims




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posted by Ray Beckerman @ 6/17/2009 06:48:00 PM 4 Comments Links to this post

The final charge conferece was relatively uneventful, simply wrapping up matteres for the jury instructions and special verdict form. The only substantial objection different from the previous conference this morning was that plaintiffs asked for some changes in the language of the instruction brought about by yesterdays blow up over Dr. Jacobson's new testimony about an external hard drive.

The agreed upon instruction was:

You heard testimony from Plaintiffs' expert, Dr. Jacobson, that there was
evidence of an external hard drive connected to the computer that he examined.
You are instructed that there is no basis for the testimony regarding the
external hard drive and that you should disregard this testimony and all
evidence referred to in connection with the testimony about the external hard
drive.

Plaintiffs asked based on Thomas-Rasset today breifly stating, before the testimony being stricken that plaintiffs offered a witness who provided false testimony. The proposed addition was to make it clear that this testimony was not to be used by the jury and (paraphrasing) that there is no basis for the allegation that a witness offered false testimony. Defendants objected to this change, and the statement as originally agreed upon will be read to the jury.

Some minor changes were proposed and agreed upon by both parties as to the special verdict form, which will be finalized soon and be available along with the final jury instructions later today or tonight on ECF to both counsel and the public.

The court will meet with counsel briefly tomorrow morning at 8:30am. Closing arguments will begin with the defense at 9am and be followed by the plaintiff, with no rebuttal. Both parties thought their testimony would be about one half hour, possibly a bit longer. Both parties were granted a limit of one hour for closing. Judge Davis would like to have the jury charged with instructions before the lunch break.

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posted by Marc W. Bourgeois @ 6/17/2009 05:24:00 PM 6 Comments Links to this post

Defense called their witness Jammie Thomas-Rasset to testify. She was asked to describe her background and family, which was already alluded to in her previous testimony and relatively well known to the parties.

The first issue Mr. Sibley asked about was the issue of the hard drive. He gave Ms. Thomas-Rasset a chance to explain her deposition testimony where she, as at the last trial, explained that she was off by one year on all of the dates she provided in that deposition. She explained that she did not mean to give incorrect information, but was just confused as to the timing when giving deposition. She asked rhetorically why she would lie when she hired an expert who would be able to tell what happened with the computer.

Mr. Sibley then asked Ms. Thomas that even if all the evidence offered by Plaintiffs was true, if it indicated she was responsible. She testified that it did not, even if it were all true it only led to her computer, not herself. He then asked her to refer to the initial letter she recieved from Shook, Hardy and Bacon and asked her to talk about the first call she made to Plaintiffs in response to that letter. She again testifed that she looked with the operator on the phone for KaZaA, which could not be located. It was also brought to light that this letter nowhere mentioned the date of the alleged infringement, which she took to mean that it was likely within the past six weeks to no more than two months, which is why nothing would have been mentioned about the hard drive being different. He also asked her to read a line about someone reciving the letter who was under 18 that indicated if the recipient was under 18 they would need an attorney or parent/guardian present for all conversations. Ms. Thomas-Rasset testified that she took this to mean that "they sue children".

Ms. Thomas-Rasset then testifed about how her hard drive broke, when her computer froze while her eldest son was playing a game and he hit it, after which it no longer worked. She testified that she brought it to Best Buy for repair and further testified that she never asked for or got her old hard drive back.

Then things got interesting. Mr. Sibley asked that if the jury were to believe all the previous testimony and evidence, should they find her responsible? She testified that she didn't do it and was asked, "Who did?" She offered that it possibly could have been one of her children or possibly could have been Mr. Gervais the boys father and her ex-partner, who had stayed at her apartment for a week or more on three seperate occasions with her childen while she was away. She testified that both her children and her ex had access to the family account on the computer.

Jammie was asked about her rules regarding her kids use of the computer. She said that she had rules, and that the children could not use the computer while she was not home, but she was unable to stand over them and watch them at every moment they were using the computer. She again stated what access the kids had to the computer, including to the internet for some online games. She was asked if her kids always followed the rule, which she said they may not have always, as they had later been caught breaking them.

The testimony then turned to the screenshots of her shared folder. Many pages of screenshots were flipped through to which Thomas saw artists she testified to having no knowledge of in 2005, and in genres of music that she did not enjoy such as extreme heavy and industrial.

She was asked if she's ever stolen music, in response to previous plaintiff testimony that she was a thief. She was asked if she's ever been accused of shoplifting, which she has not, and she testified that she would steal would she steal music she already owned in response to a question phrased similarly.

She was asked if her kids ripped CDs, which she said she believed they may have using Yahoo! Lauchcast into the MP3 format, since her kids could not access music under her account from the family account. She was asked about her oldest son's computer proficiency in regards to whether or not he would be able to perform those tasks, to which she testified that would know how to do that.

She testified that any ripping she did was with Windows Media Player into the wma format, and she did not know the basic steps that would convert a wma file to an mp3 file until Dr. Jacobson's testimony yesterday.

She testified again that she owns over 300 CDs now and about 240 in 2005.

Mr. Sibley then turned and asked about Plaintiffs one piece of evidence which they state links directly to her, and not her computer. The name tereastarr. They claim that tereastarr was her, and that this piece of evidence links to nothing else. She testified that this name was known by her entire family because it was the name she chose when pregnant with her first child for the name for her child if she ever has a daugther. She testified that she would name a daughter with the first name Terea and middle name Starr. She testified that Plaintiffs never asked her about the origin of this name during the entire case.

She then testified about what the case has done to her life, during which she became very emotional, crying at times. She testified that she had to defend against something she didn't do, had used a lot of time and had to put down some money to retain an attorney and that she faced the potential for $3.6 million in damages. She testified to missing school functions for her children and that the case had been a "complete nightname" that started with Plaintiffs attept to "extort" $5,000 from her, and that she didn't think it was something anyone should have to go through.

On cross examination Ms. Thomas-Rasset was again asked to refer to deposition testimony where Mr. Reynolds pointed out some inconsistensies in current and prior testimony regarding her watching her children use the computer. She had previously testified that she watched her children use the computer, she now testifies that she couldn't watch every minute, but that they were not allowed to use the computer while she was not home. She was again asked about restrictions on the family account to which her responses matched her previous statements.

She was asked about her ex-partner staying at her house, and what dates she mentioned that this had occured at her deposition. Her deposition dates were not correct, but she did state at the deposition that she would need to check her records to be sure, which she has since done.

Mr. Reynolds then asked why before today she never stated that her ex-partner knew the family account password to the computer. She stated that she had never before been asked. She was asked if she ever saw any music on her parter from her ex-partner, and she testified that she had not seen any and had never looked.

She was asked if it was possible that others did this, to which she said that it was indeed possible. Mr. Reynolds pointed out a response to her interogatories which she stated that she did not know anyone else who did it. She maintains that this is true since she does not know anyone else did it.

Redirect was short and Ms. Thomas-Rasset was asked about three issues. Was it possible that someone else such as her children did it, which she said yes. Does she believe that one of the other mentioned parties did it, which she testifed no. Finally does she contend that someone else did it, which she also testified she does not.

Testimony then ended for Ms. Thomas-Rasset and the defense rested, without calling their expert witness Dr. Yongdae Kim, who was notably absent from the gallery this morning after having been in attendance the last two days

The final charge conference will be at 2pm today. Closing arguments will begin at 9am tomorrow.

[Ed Note: Updated with proper spelling of Ms. Thomas-Rasset's ex-partner's name: Justin Gervais -M.W.B]

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posted by Marc W. Bourgeois @ 6/17/2009 01:47:00 PM 1 Comments Links to this post

The last three witnesses called by Plaintiffs where Wade Leak of Sony BMG (recalled from Monday), JoAn Cho of Universal, and Alastier McMullan of EMI North America.

All were asked to testify as to the works plaintiffs were suing over, identify the copyright registrations, the retail CDs, listen to a partial track from each, and identify other works their company owned rights to that appeared in the shared folder. Overall the testimony was relatively uneventful.

On cross the witnesses were asked different questions by defendant. Mr. Leak was not crossed. Ms. Cho was asked several times about reasonableness, and why Universal only chose to pursue a few songs of those found in the shared folder as well as asked to testify as to what would be a reasonable award in the case. She didn't respond much to this line of questioning, repeatedly leaving statutatory damage decisions to the jury. Mr. McMullan was asked about the cost of the single track that Capitol was suing over and what it would cost at retail (less than twenty dollars for the album, and no more than one dollar and twenty-nine cents online).

With those witnesses the Plaintiffs rested.

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posted by Marc W. Bourgeois @ 6/17/2009 01:39:00 PM 0 Comments Links to this post

According to the tweets I've seen, both sides have rested in Capitol Records v. Thomas-Rasset, defendant did not call her expert witness Prof. Yongdae Kim, the final charging conference is scheduled for 2:00 p.m., and the case is scheduled to be submitted to the jury tomorrow morning.



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posted by Ray Beckerman @ 6/17/2009 01:33:00 PM 0 Comments Links to this post

The 8am jury instruction conference was relatively uneventful. The only substantive change was an addition to make clear that copying CDs for personal use via ripping is not, in this case, what is being alleged for jury to decide damages on. There were numerous objections on both sides on grounds previously ruled on by the court, but were reasserted this morning for the record.

On a scheduling note Judge Davis noted he has cancelled his trip out of town so that testimony should conclude today, final argument will be tomorrow after which the case should go to the jury.

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posted by Marc W. Bourgeois @ 6/17/2009 10:01:00 AM 0 Comments Links to this post

The final witness called by Plaintiffs this afternoon was Betsy Brown, contract administrator for Warner Bros. Records.

Her testimony was mostly procedural, being asked about copyright certificates, if the works produced were works for hire, whether or not any of the works alleged were owned by Warner Bros records, and whether or not the CDs were those alleged infringed. She was asked to point out some copyright notices on CD jewel cases and listen to both an MP3 version MediaSentry acquired and a retail version of one of Warner's songs at issue in this case.

During her testimony the three Warner certified copyright registration certificates and CDs were moved into evidence.

The final direct question was whether or not Warner authorized Jammie Thomas-Rasset to distribute their works, to which she testified that they did not.

The cross examination was very brief, just asking approximately how many records each of these three infriged works sold. She testified that she believed all three had gone platinum, which is more than one million sales.

The only housekeeping question presented to the court at the conclusion of the day was a defense question if they should start talking about end of trial preparations such as jury instruction since the defense believes they may complete testimony tomorrow. The Plaintiffs have three witnesses remaining (which includes the recall of Wade Leak), and the defense estimates their case will take less than half a day. The judge indicates that he has to be on a plane by mid-afternoon (I assume tomorrow, but it was not explicitly stated) and asked the parties if they would be ready to close on Friday (I assume this means no proceedings on Thursday, but again this was not explicitly stated). The parties indicated that they would be, and each side indicated they would need about a half hour for closing.

The case will resume tomorrow morning without the jury at 8am for any discussion of proposed jury instruction or other necessary matters and the trial will resume at 9am.

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posted by Marc W. Bourgeois @ 6/16/2009 08:05:00 PM 1 Comments Links to this post

Plaintiffs began by asking Ms. Thomas-Rasset about her education, degrees she holds, where she works, and some details about what her job duties entail. She is asked about her proficiency with computers, specificially with the Microsoft Office suite of applications to which she testifies she is familiar with, knows how to use, and uses on a regular basis.

She was then asked about the tereastarr username, which she admits to using as her online identity at a multitude of websites for the past sixteen years.

Jammie seemed confident on the stand. Not visibly nervous or confused, and able to articulate her answers to questions quite clearly.

The questions then were some which she was asked at previous depositions. She was asked if her computer was on all the time. Her testimony was that her computer was on all the time, except when she went away for the weekend or another long period of time. Mr. Reynolds pointed her to a previous deposition answer in which she simply stated that her computer was on all the time. She was asked again, to which her final response during today's testimony was that her computer was on all the time when she was at home.

She was asked about how her computer was seperated into accounts, and some screenshots of her desktop and start menu were shown, showing the Windows login name that was used was "tereastarr". She testified that her computer had two accounts, one that she used, and one that was for others. Both were password protected. She was asked about the "tereastarr" account and if it had administrative priveliges, to which she responded that it did. She was asked how the other account was limited, and did not state directly whether or not the account was an administrator, but did state that the account could get online, and that her kids did go online to go to things like yahoo and pogo.com. This question also caused Mr. Reynolds to go back to a previous deposition and read a question an answer that stated her kids could "only access games".

An exhibit was then shown which was a crude drawing of the defendant's apartment at the time the alleged infringement occured, showing where the PC was located in her bedroom.

Mr. Reynolds then switched gears on his line of questioning by asking about Jammie's musical tastes, and her CD collection. She states she owned about 240 CDs in 2005, and now approximately 300. He then began bringing up the screenshots from a shared folder MediaSentry found which they allege to belong to a tereastarr@KaZaA. She testifies that this is not her shared folder. She is asked about several artists in the shared folder and their style of music. Several of the artists are artists she is familiar with and listens to. She maintains her assertion that this is not her shared folder. She also testifies that she is not surprised by this shared folder, as the all the artists that are being talked about are popular artists and she would not be surprised if there was someone else with similar musical tastes.

She was then asked whether or not the music was copyrighted, and whether or not the copyrights were valid. She testified that she had no evidence either way as to the copyright status of this music.

She was then asked about Napster, to which she admitted to using as a part of a research project at Saint Cloud State University. She admitted to having used Napster while in college to download music to a University computer, and at that time concluded it was legal. She testifies that she learned later on in her college career that Napster was shut down, and that it was not legal.

She was asked about burning CDs which she admitted to doing for Mr. Havemeier, and having more recently downloading music from Amazon.com and burning for her husband. She was asked about making playlists on her computer, to which she admitted to having have done.

She was questioned on documents from Dr. Jacobson's report about files and playlists on her computers to which she answered very confidently. She was asked if she produced some certain named playlists, which she admitted to having done. When Mr. Reynolds asked her about one specific playlist she confidently stated that she did not make that playlist, and that it was a single song, to which Mr. Reynolds apologized for having made the error.

She was also questioned about her CD ripping habits and some deposition testimony relating to expert evidence that a large number of files appearing on her computer in a short period of time. During this portion of testimony Ms. Thomas was defensive but still very confident. When being pointed to deposition testimony giving an answer that she could not explain why such an amount of music would have come on her computer in such a short period of time pointing Mr. Reynolds to later in the deposition to statements that she could not explain it, because she had not seen the expert report, she likened it at one point to asking a doctor to explain whether or not someone had cancer without allowing the doctor to see medical records.

Ms. Thomas-Rasset was not questioned very hard on the issue of previous deposition testimony relating to the date her hard drive was replaced. She was asked about the deposition testimony in which she stated the drive was replaced in early 2004, but not pressed on the issue as she was during the previous trial.

Defense counsel declined to cross afterwards and will question Ms. Thomas-Rasset directly later in the case.

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posted by Marc W. Bourgeois @ 6/16/2009 07:36:00 PM 0 Comments Links to this post

The first witness of Tuesday afternoon was Kevin Havemeier. Mr. Havemeier was in a relationship with the defendant for approximately one and a half years, including at the time of the alleged infringement.

Mr. Havemeier testified as to the fact that he saw and knew of only one computer in Thomas' home. He testified to having used it only once or twice to check e-mail. He testified that the computer was password proteted, so Jammie needed to log-on to the machine to allow him to use it. He testified that at one time Ms. Thomas gave him a burned compiliation CD, so she had the technical knowledge to produce it.

He was asked about defendant's hard drive and whether or not it had been replaced. He had trouble recalling some dates for events occuring over four years ago, so he used deposition testimony to try to recall dates. His tesimony eventually confirmed that the hard drive was replaced subsequent to the date of the alleged infringement, and also recalled a conversation with Ms. Thomas after she found out about the commencement of the recording industry action that there would be nothing on the drive, since it had been replaced.

He also testified as to Ms. Thomas' username of tereastarr that he knew she used for e-mail and other services.

On cross-examiniation the questions were fairly simple and boiled down to did she do it, to which he testified that he had no knowledge of her ever having done what Plaintiffs allege.

The next witness was Ryyan Maki, an employee of Best Buy/Geek Squad.

He was asked to go through exhibits relating to Best Buy's records of Ms. Thomas' computer repair. The machine was brought in with service notes indicating beep errors and that the machine would not POST on March 7th, 2005. A service technician determined the problem to be with the hard drive and it was replaced under a warranty by Best Buy on March 9th, 2005. He also testified that it is the standard procedure of Best Buy to return an old non-functioning hard drive to the customer. He indicated that there was nothing in the notes of the case to indicate that this did not occur, and that there would have been such a notation if the customer wanted something different with their disk (such as it being sent in for data recovery).

On cross-examination Mr. Maki was asked about records pertaining to Ms. Thomas' best buy purchses, which included several music CDs, both before and after the date of alleged infringment. The records indicated that Ms. Thomas had more contacts and purchases with best buy than in his estimation the average Best Buy Customer.

The next witness was Eric Stanley, who had previously been retained by the defense as an expert in the case. Mr. Stanley also examined Ms. Thomas' hard drive on which he found no evidence of KaZaA or other infringement. His questioning primarily pertained to timing issues, such as when the hard drive was replaced. He stated that based on information he had recieved from the defense he believed that the hard drive was replaced in January or February of 2004 (Mr. Stanley also had problems remembering dates, and referred to deposition testimony to recall this information). He discovered during his deposition that this was not the case, based his finding on the day of the deposition that the hard drive had a sticker on it indicating the date of manufacture was in late January of 2005. Based on that information he stated it was unlikely that the disk left the manufacturer, and made it all the way to be installed in Ms. Thomas' computer by February 21, 2005.

The next witness of the day was direct examination by Plaintiffs of Jammie Thomas. I will cover that testimony in the next post.

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posted by Marc W. Bourgeois @ 6/16/2009 07:11:00 PM 3 Comments Links to this post

After lunch there was argument as to whether or not Dr. Jacobson's testimony should be stricken as a result of new evidence being introduced to counsel very late.

Plaintiffs began by apologizing to the Court and to counsel, and Mr. Reynolds stated that he had only today learned that Dr. Jacobson had discovered new evidence in the "data log" to which Dr. Jacobson alluded. He argued that the decision on whether or not to strike testimony was at the discretion of the court citing as precedent one of Judge Davis' old cases reviewed by the 8th circuit. He argued that the new introduction of evidence did not undermine the remainder of testimony and urged that the rest of the testimony remain on the record.

Defendants used the same case pointing out the discretion of the court and urged that they also remove from evidence the screenshot of the list of files which Dr. Jacobson spoke about which he claimed the file times indicated the files likely came from another hard drive, based on the file dates.

[Ed. Note: I always, even in the first trial, found this argument to make little sense. The file dates didn't seem too far out of the ordinary to have come from ripped CDs, and the file dates did show larger date gaps between albums, which would not happen if they were transferred from another hard drive, unless the transfer of each album was conducted seperately. The report also did not list what kind of date was used (file creation, modification, access, etc.) and there was no testimony or evidence to show that a transfer from another hard drive would affect these dates. In my opinion further research would be needed to demonstrate exactly what transfer methods would produce what type of changes in each of these dates stored with the file meta-data to form a qualified opinion on their origin. -M.W.B. ]

Plaintiffs argued that this exhibit was not relevant to the new evidence of another attached hard drive and that it existed and was admissable before such evidence came to light. It was from this exhibit that Dr. Jacobson formed his opinion so his later futher discovery of evidence would not affect it.

After some argument on this point counsel was instructed to draft a motion which stated that the testimony about an external hard drive had no basis and the jury must not use it in their deliberation. The rest of Dr. Jacobson's testimony, including the exhibit of files, remain.

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posted by Marc W. Bourgeois @ 6/16/2009 06:54:00 PM 2 Comments Links to this post

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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posted by Marc W. Bourgeois @ 6/16/2009 06:39:00 PM 3 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, the Court has entered an order:

-criticizing defendant's counsel;
-setting firm scheduling dates, including July 20th for a final conference, and July 27th for the trial, and estimating the trial duration at 5 days;
-denying plaintiffs' motion to exclude expert witnesses;
-allowing plaintiffs a deposition of defendant limited to fair use issues;
-allowing defendant written discovery, but no deposition in accordance with defendant's lawyers' statement that they would take no deposition; and
-granting plaintiffs motion to compel discovery into defendant's lawyers' having allegedly uploaded to the internet the song files which are the subject of the lawsuit.

June 16, 2009, Decision denying motion to exclude expert witnesses, granting motion to compel discovery

[Ed. note. I fail to see how Charles Nesson's alleged copyright infringement during the lawsuit is in any way relevant to Joel Tenenbaum's alleged copyright infringement years ago. -R.B.]



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posted by Ray Beckerman @ 6/16/2009 05:13:00 PM 4 Comments Links to this post

Dr. Jacobson continued to testify regarding the forensic examination of defendants hard drive. He described his basic process, using EnCase software. He testified that the computer had numerous references to the tereastarr username, such as on online websites such as match.com and yahoo e-mail. He also testified that numerous music files were found on the hard drive, most in wma format, but a handful in mp3 format. He found that all of these files had dates after the date of MediaSentry capture. The earliest date I saw in exhibits was 5/2/2005. He also testified that he found no evidence of KaZaA or any other peer-to-peer software on the disk.

He testified that he found that the hard drive was replaced on or about 3/9/2005, after the date of capture, and thus was not the hard drive or installation of Windows in use on the computer on 2/21/2005.

He also testified that he found evidence that another hard drive was attached to the computer, which was a statement he did not make at the last trial. He maintained his opinion that Ms. Thomas' computer was used to distribute music via KaZaA on 2/21/2005.

Cross-examination focused on a small number of issues. First of all, the username. Mr. Sibley argued that his previous testimony showed most users in cases he's worked on such as this one do not choose a username that is somehow linked back to an idendity, and that he believes the ratio is about 60/40.

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.

He was then asked about speeds in response to a direct question response that it would take about 170 hours of downloading to recieve 1700 music files. He admitted that numerous factors would influence how fast this would be, so his previous estimation based entirely on the MediaSentry transfer was mostly a guess.

He then pressed Mr. Jacobson who eventually admitted that despite all of his credentials, the best he could do was tie the infringement to a computer, not a person sitting behind the computer.

It then got really interesting. Dr. Jacobson was asked about his evidence that another hard drive was connected to the defendant's computer. He testified that he found evidence of this in a "data log". And admitted this data log was not provided to either party as a part of any of his reports. He then asked about testimony at a prior proceeding where he guessed that the wma files he found on the disk came from another hard drive due to the speed at which they were transferred. There was a brief dicussion of a demonstration about CD ripping speed performed at a "prior proceeding". He then admitted that the music could have come from ripping, since he had done no research on the various software and speeds that could be involved in ripping from Windows Media Player versions.

There was a brief redirect and then Mr. Sibley called for a sidebar about a voir dire issue. After the sidebar the jury was dismissed for lunch.

Dr. Jacobson was recalled to the stand out of the presense of the jury to discuss the evidence he found of another hard drive in the "data log". He testified that he first found out about this data log, and discussed it with plaintiffs counsel late last week. He admitted that he had suspected that another hard drive was attached at the prior proceeding, but didn't investigate it. In preparing to testify today he reviewed everything from the case and found this evidence.

Defendant moved for exclusion of any testimony regarding another hard drive attached to the computer.

Plaintiffs said they had no basis for exclusion since this was just an expansion of evidence found during the report.

Judge Davis asked, "Is that what you are going to stand on?" to which plaintiffs replied "Yes".

Judge Davis then stated he was considering striking all of Dr. Jacobson's testimony due to their conduct surrounding this evidence.

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posted by Marc W. Bourgeois @ 6/16/2009 02:00:00 PM 16 Comments Links to this post

The first plaintiff witness Tuesday morning is Dr. Doug Jacobson.

He has so far testified about his qualifications, and was admitted as an expert without objection from defendants.

He has testified about the workings of peer-to-peer and KaZaA. He has gone on to state his opinion that based on the evidence he was asked to examine Ms. Thomas' computer was used to distribute sound recordings to MediaSentry.

He testified that he had no concerns about the accuracy of the MediaSentry or Charter evidence.

We are in a short recess while copies are made of a timeline of events he performed for all counsel. He will testify about his forensic examination of defendants hard drive after the recess.

[Ed. note. I am surprised that Dr. Jacobson was not challenged. -R.B.]

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posted by Marc W. Bourgeois @ 6/16/2009 11:29:00 AM 1 Comments Links to this post

In Capitol Records v. Thomas-Rasset, Judge Davis has sustained defendant's objection to the plaintiffs' exhibit 4 "stack" of registration documents, but overruled defendant's objection to plaintiffs' use of uncertified sound recordings and parol evidence.

June 16, 2009, Order, sustaining objection to registration documents, overruling objection to uncertain sound recordings and parol evidence



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posted by Ray Beckerman @ 6/16/2009 10:19:00 AM 6 Comments Links to this post

In this article in p2pnet.net, Jammie's husband speaks about the disruptive effect on his family of Jammie's being sued by the RIAA.



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posted by Ray Beckerman @ 6/16/2009 10:14:00 AM 0 Comments Links to this post

In Capitol Records v. Thomas, plaintiffs filed a brief opposing defendant's objection to their use of uncertified sound recordings.

The brief appears to have been filed after the 12:00 midnight filing deadline.

Plaintiffs' brief opposing objection to uncertified sound recordings



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posted by Ray Beckerman @ 6/16/2009 10:00:00 AM 0 Comments Links to this post

Motion of defense to require that the sound recordings placed in evidence be certified copies of the deposit copies placed with the copyright office denied.

Motion to exclude exhibit 4 (chains of title for corporations, name changes-mergers-etc) granted.

June 16, 2009, Order, sustaining objection to registration documents, overruling objection to uncertain sound recordings and parol evidence

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posted by Marc W. Bourgeois @ 6/16/2009 09:59:00 AM 3 Comments Links to this post

In Capitol Records v. Thomas-Rasset, the defendant filed her briefs supporting her evidentiary objections to plaintiffs' attempted use of (a) uncertified sound recordings and (b) exhibit 4, a "stack" of copyright registration documents.

The objections are scheduled to be heard at 8:00 AM.

Defendant's memorandum in support of objection to uncertified sound recordings
Defendant's memorandum in support of objection to exhibit 4
Plaintiffs' memorandum in opposition to objection to registration documents
Plaintiffs' brief opposing objection to uncertified sound recordings

[Ed. note. Both objections are, in my opinion, unassailable. And I don't see how the plaintiffs can prove their case, once the objections are sustained, as I think they must be. So, as I see the plaintiffs' copyright case: case closed. Next step: thank the jury, send them home, and set a briefing schedule for the attorneys fees motion. No constitutional issues, no 'making available' theory. Nothing. Just plain old garden variety absence of admissible evidence. -R.B.]





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posted by Ray Beckerman @ 6/16/2009 12:58:00 AM 8 Comments Links to this post

The afternoon began with opening statements from the both sides.

Plaintiffs began by describing their industry and stating that their businesses are made up of "real people" who work to make musical recordings available to the public, from singers and songwriteres to graphic artists, talent scouts and others who many others involved in the process of purchasing tracks that the public can purchase.

They described that their industry has been greatly hurt in the past several years and they have been forced to engage in many layoffs and loss of revenues which they attribute to illegal distribution of music on the internet. They explain that they bring this case to show that Jammie Thomas violated copyrights in twenty-four of their sound recordings.

They went through the plain statement of their case, that they retained MediaSentry to use programs like KaZaA in the same manner as any other internet used by any internet user to locate tracks and download them. They then associate the information provided by MediaSentry with information they recieve pursuant to subpoena to internet service providers to identify those who they believe are responsible.

They described many of the witnesses they intend to call who will testify that a user identified by the alias tereastarr@KaZaA infringed on their copyrights and that the person responsible is Jammie Thomas-Rasset. The list of witnesses mentioned went through record company employees, experts, internet service provider employees, and others.

They also explain that no evidence will be shown of other distributions to internet users other than MediaSentry and give two explanations. First is that the KaZaA application does not keep records or logs of distributions, and second that the KaZaA network is designed so that no one else knows what distributions are occuring.

They then described other evidence that they intend to produce, such as that the tereastarr alias is unique to Jammie Thomas-Rasset and that the music tastes of those files they identified as being shared match those of the defendant, and that defendant intended to cover up the fact that she used KaZaA by replacing her computer hard drive.

Defense opening is much shorter and explains that if the jury believes everything that the plaintiffs tell them that they have only demonstrated that the transfers of music files did occur, and that no witness could testify that the defendant was the one who did them.

He then went on to describe that the plaintiffs in this case are asking for up to $3.6 million dollars be awarded for the claims of twenty-four infringing works, and that their initial claim of more than 1,700 music files would mean that by their damage theroy they could ask for an award of $250 million dollars, against a single individual defendant.

Defense claims that the recording industry will attempt to show Ms. Thomas-Rasset is at the center of an internet stealing ring - all occuring from the bedroom of her apartment.

Mr. Camara also offered another explanation for why the hard drive produced by defendant was not the one in her computer on February 21st, 2005. Defense offers that in March of 2005 the defendant's son hit the machine after playing a video game and that afterwards it would only start up to a blank screen. Defendant brought the computer to Best Buy, where it was purchased and warranted and that Best Buy made the decision to install a new hard drive since the previous one had failed.

Defense also states that Ms. Thomas is an avid music fan and that evidence will be shown that she has purchased over two hundred CDs, including CDs of all the tracks plaintiffs are suing for damages over.

He closes by asking the jury to look for "any evidence that Jammie Thomas did it" and then let her tesify to "prove it wrong".

The first witness was Gary Leak, general counsel for Sony Music Entertainment. He explains the organization of Sony into several labels, two of which are plaintiffs in this case. He begins by describing what goes in to making a track of music and all of the parties that go in to it. He then is asked about MediaSentry and how they gather evidence. Most of Mr Leak's testimony from this point forward is objected to by defense because Mr. Leak lacks personal knowledge of what went on in this specific case and that a foundation has not been established for the evidentiary exhibits they intend to introduce with him as a witness. After several sidebar conferences the only evidence admitted is eight certified copies of copyright registrations by Sony's labels, and CDs corresponding to those songs. He is asked about the copyright notices on these CDs and points them out for the jury.

Upon cross examination Mr. Leak was asked if several artists were ever employees of Sony Music Entertainment. He responded that to the best of his knowledge none of them had been, and that they had contracts with Sony whereby works they produced would be works made for hire.

He then asks Mr. Leak questions about what he thinks an appropriate amount of damages would by against Ms. Thomas-Rasset. He initially simply says that they are seeking statuatory damages which the jury should award, but does admit they are seeking up to $150,000 per work. He says that a "message should be sent" with the award.

He is also asked about what else the labels are doing in regards to combating illegal file-sharing. He states four things, educational campaigns, litigation against services which allow music to be distributed, litigation against individuals believed to have engaged in copyright infringement and working with ISPs. He is asked what the industry is doing in the U.S. with ISPs to which he has no knowledge, and the testimony briefly strayed towards France before Plaintiffs objected and were sustained on issues relating to the French "3-strikes" law.

Next witness was Chris Connelly from MediaDefender/MediaSentry. He was questioned by Mr. Oppenheim. He described the process they use to collect information, mainly that they do the same thing as any other internet user could do except for two things: they have automated tools to use KaZaA and other networks and that they collect additional evidence as these automated tools use the software. He testified that they tested this automated software and that it had a "zero error rate".

At this point most of the MediaSentry evidence was admitted as Mr. Connelley described it. Screenshots, user logs, download logs, system logs, and CD-Rs made of MP3 files that MediaSentry acquired. Mr. Camara objected to some of this testimony on the workings of the technology and KaZaA as Mr. Connelley was not an expert, but these objections were overruled.

He also testified that MediaSentry had no evidence of files distributed to anyone other than MediaSentry for the same reasons brought up in the opening. He additionally offered testimony of IM messages sent via KaZaA to tereastarr@KaZaA warning of copyright infringement. He claimed under direct questioning that these messages would not be something that a KaZaA user would typically ignore since they present themselves as pop-ups in the middle of the computer screen.

Mr. Camara's questioning of Mr. Connelley focused at first on his claim of a "zero error rate". Mr. Connelley testified that the claims of a zero error rate were backed up by other clients of MediaSentry, and also admitted that no one else has access to or reviewed the code MediaSentry used in its automated processes. He also claimed, interestingly, that he beleived no one had ever asked to examine the source code and that if such a request was made he would think that it would be granted by the company under some sort of confidentiality agreement.

He then asked about the instant messages and whether or not the application could be configured to suppress these, he testified that he believed it could but that it was not the default behavior. This matter was questioned on redirect and recross and the result of the testimony was that MediaSentry collected evidence that the computer that the instant messages were sent to did recieve them, but he had no way of knowing that they were ever displayed and that they were never replied to.

Final witness of the day was from Charter Communications. The subpoena upon charter and the response was moved in to evidence and the witness described the methods used by Charter to tie an IP address with a specific date and time to a modem MAC address back to their billing system which has the individual contact information and e-mail address.

The initial legal notice that Charter sent to Ms. Thomas was also displayed and initially the witness claimed that it was sent via Federal Express, so that it would not likely be something that would be missed by the defendant. Upon cross-examination she admitted that she had no way of knowing whether or not the defendant noticed this letter or whether or not she had recieved it.

Trial then broke for the day. There are two motions that counsel was instructed to brief the court on by midnight and will be heard at 8am tomorrow morning. Plaintiffs asked that they be provided with breifs that they claim defense had already written, but the court stuck with the initial instruction of briefing by midnight for argument tomorrow morning.

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

Labels: bymarc

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posted by Marc W. Bourgeois @ 6/15/2009 07:52:00 PM 9 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, the Court, under the doctrine of "constitutional avoidance", deferred ruling on the excessiveness of the statutory damages being sought by the plaintiffs until when and if plaintiffs obtain such a verdict.

The Court rejected defendant's alternative arguments that the Copyright Act was an unlawful delegation of criminal power to a private entity, or that statutory damages should not be applied to noncommercial infringements.

Unrelated to the above, defendant also filed his responses to the RIAA's motions to (a)exclude expert witnesses and (b) compel further discovery responses.

Jun 15, 2009, decision denying motion to dismiss for unconstitutionality
Defendant's response to plaintiffs' motion to exclude expert witnesses & postpone summary judgment motion filing date
Declaration responding to plaintiffs' motion to compel further discovery responses



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

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posted by Ray Beckerman @ 6/15/2009 04:56:00 PM 0 Comments Links to this post

A reader of our blog is tweeting the trial, under the name @SemiAccurate



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

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posted by Ray Beckerman @ 6/15/2009 02:37:00 PM 0 Comments Links to this post

In first morning of the Capitol Records v. Thomas-Rasset case the parties have dispensed with some pre-trial matters and completed their jury selection.

Matthew Oppenheim for the plaintiffs moved to bar the defense from bringing up before the jury or witnesses the argument that Plaintiff's copyright registrations were invalid under the work for hire doctrine. Mr. Oppenheim argued that this was not an available affirmative defense. The defense argued that it goes towards the burden of proof that Plaintiffs hold copyright in the works they alleged were infringed. Mr. Camara noted that he had no intention of bringing up this issue during his opening or his questioning of witnesses, but reserved the right to ask witnesses questions pertaining to the manner in which the copyights were registered, and what that registration meant. He noted that it would be in a motion to dismiss before the court that the registrations were invalid, and not a question for the jury.

The jury selection proceeded with many questions from the judge regarding music and how the potential jurors exposed themselves to music. Most jurors own portable MP3 players, or know someone close who has. A few jurors had heard of the peer-to-peer technologies at issue in the case, most having heard of Napster or LimeWire. One potential juror had noted that his son had an iPod from which he had received music from a friend. Mr. Reynolds questioned this potential juror and many others on whether or not they had formed an opinion as to whether or not this method of obtaining music was right or wrong. Most indicated that they had not formed an opinion one way or the other, but several brought up that they believed it was wrong if it were illegal. The juror initially questioned noted that if he strongly felt it was wrong he probably would not have allowed his son to do it.

After all parties conferred four potential jurors were dismissed. The man who had indicated his son had gotten music from a friend was one of them, as w