Wednesday, October 03, 2007

Citizen Coverage of Virgin v. Thomas Jury Trial

If any of our readers can get themselves to the courthouse in Duluth, Minnesota, to see any of the jury trial commencing Tuesday October 2nd in Virgin v. Thomas, where Brian Toder of Minneapolis will square off against Richard Gabriel of Denver, and can phone or email us with updates as to what is going on, we will publish here reports or excerpts of reports throughout the trial. (See ground rules for citizen-correspondents below). News from media sources will appear in Additional News and Commentary and discussion sections below.

This post will be re-dated each day so that it stays at or near the top while the trial is in progress.

*******Citizen Coverage********
**(NOTE:This space is reserved for citizen coverage of the Virgin v. Thomas trial, believed to be the first RIAA case to go to trial in the United States.)

**10/4/07, 12:44 AM. Report from JASON (INCLUDES OPINION):

Day 2

Here is a brief rundown of what I saw on Day 2 of the trial. I only got to see the first half again, and once again I am no lawyer or journalist, so please take that into account.

Tail end of expert witness Dr. Doug Jacobson. This went very back and forth. He talked mainly about the hard drive that Thomas sent to the RIAA for examination, which he felt was copied from her old drive. He also talked about examining the data from Safenet to determine the IP address, Mac address of the computer, and (possibly) attempt to determine any hacking (I think he only said he never saw any evidence of hacking, but didn't really say he was actively searching for it). His determination that the drive was copied was because the file dates of the WMA music files were 15 seconds apart. He said this was too quick for ripping. Toder asked him several questions, and it was shown that the expert witness couldn't even do simple math under pressure. Dr. Jacobson stated that a CD probably took about 3-4 minutes... maybe 5 to rip (which does equate to about 15 seconds or so per song, depending how big the cd was). Not too shortly after this he estimated that a single song would take about 1 minute to rip. Most CDs are about 10-15 songs... you do the math. So Toder decided to hook up Thomas' computer to demonstrate the how fast her computer could rip, and that 15 seconds was viable. The RIAA lawyers would have none of this, with lots of objections, and what appeared to be worried looks. After some discussion without the jury present the Judge said for the demonstration to continue. Her computer ripped the CDs in less than 15 seconds per song, about 10 by my count. It was timed by both Thomas and the RIAA lawyers, who seemed to add about 1 minute (to the total cd time) each time (possibly they were counting the time for the CD to go in the computer and begin to do its burning process). The expert witness was consulted again. Defense asking if he wanted to retract his previous testimony. The RIAA lawyers and him nitpicked, saying that it could have been a faster CD drive or Hard Drive, or the newer Windows Media Player version (11 instead of 10) could be at fault. Or that since there was no internet connection it couldn't access the internet for the metadata (which takes time). Also, when Toder questioned Jacobson, Jacobson said that hacking or spoofing IP/Mac addresses were possible. He also got him to say how much the RIAA have been paying him for his services, again implying his tongue being held by pocket strings.

[opinion] I am fairly decent about computers and know that CD drives and Hard Drives haven't really made significant changes in the past few years. And accessing the web for the metadata only takes a few seconds, for the whole album! If there were any increases, the speeds would probably have brought up the times from the 10 to 15 sec. per song, making the number even more accurate. It was clear to me Jacobson was more concerned about helping the RIAA lawyers than actually relaying the actual significance of the info. Aside from this, I am unsure if the Jury was really able to follow along with the technical side, and Toder seemed to do an excellent job in discrediting Jacobson, getting him to say "no" several times to "do you really know about..." when before he pretended to be an expert.[end opinion]

Kevin Habemeier

Thomas' ex-boyfriend also testified as a witness for the RIAA lawyers, which [opinion]seemed to backfire[end opinion]. Kevin stated that he had heard about the computer breaking before he had heard she was contacted by the RIAA, which seems to be not what they wanted, because they want to try and prove that she broke the hard drive to hide her data. Kevin seemed to be more beneficial for Toder, who asked him if he ever saw her download music (no), if he ever saw KaZaA installed on her computer (no), and how many CDs did she have? (100's). This is important, because this is the first witness, who actually knew and was close to Thomas, and yet was called on by the RIAA lawyers.

Ryyan Changmaki - Geek Squad Employee

Again, another witness that [opinion]seemed to make the defenses case even stronger[end opinion]. Thomas' computer breaking was discussed, along with the info from the Best Buy computers. The witness stated that her hard drive wouldn't have been replaced if it wasn't broken, especially on the service plan she was on. There was no upgrade involved.

This was about when I left.

I have heard later that the RIAA president Cary Sherman was denied by the judge to take the stands. His testimony was irrelevant, since all he was going to discuss was how he felt downloaders were causing the major labels lose money, which there are no real facts on. They can prove that they are losing money, but haven't been able to prove how. [opinion] Maybe they're losing money because they are not particularly kind to it's customers (um...suing them...) or its musicians? Or that they are producing less albums in general (maybe related to the musicians)? Or that internet music is exposing listeners to more diverse independent music? Or that the high level executives take the profits for themselves and don't put it back into the company? I'll let you decide.[end opinion]

So tomorrow will be a big day, and possibly history in the making.


**10/3/07, 7:51 PM. Report from MARC:

After Wired and Ars Technica reports left the courtroom for the afternoon the Judge and Counsel discussed the proposed jury instructions. In regards to jury instruction #14 Mr. Gabriel tried to add that "Making Available" was an infringement of plaintiffs exclusive rights. Mr Gabriel cited many cases in his verbal discussion and a 2002 letter to congress by Mary Beth Peters of the Copyright office supposedly supporting his point that current U.S. law holds "making available" for distribution as infringement. Mr. Toder did not concur with the objections and stated he would like the jury instruction to remain as it stands. Judge Davis said he would take the objection under advisement and meet counsel at 8:15 tomorrow morning to discuss any final objections and making his rulings. The closing statements will begin at 9:30 AM tomorrow morning.


**10/2/07 Proceedings: Report from JASON: (INCLUDES OPINION:)

I was only able to sit in on the first half of the day. But here's some notes on what I saw. I don't know a lot about law and am not a journalist, so please take this into account.

During the preliminary hearing, "voir dire". The RIAA lawyers brought up the issues the defense had made in their earlier Memorandum, about "Soldiers of Fortune" and the RIAA targeting lower income individuals, and asked the defendant to not bring this up in trial. The defendant agreed as long as the RIAA lawyers didn't go into a campaign about how they thought downloaders were destroying the music industry and only stick to the case at hand. Also during the preliminary hearing 1-2 songs were dropped from charges (Janet Jackson and Godsmack were mentioned) by the prosecutors. I don't know if one of these had been dropped before, because the total was said to rest at 25 (from 26). Due to at least the dropping of the Janet Jackson song, it was said that Virgin Records was no longer in the case. Why was (at least) the Janet Jackson song dropped? [opinion]There was some issue prior to today about copyright proof, which could be a possibility. Or possibly some other paperwork Virgin wasn't able to complete, or is Virgin out entirely (doubt it)? But because Virgin is no longer in the trial, the name of the case has been changed to Capitol-Arista-Interscope-Sony BMG-Warner Bros.-UMG vs.... Thomas (not exact without all the official "inc." type namings after each company), which to me personally signifies even more how much these big ol' record companies seem to be ganging up on individuals [end opinion].

Jury selection went relatively quickly. Of those that were removed, one voiced her significant other had downloaded files in the past, and she felt that most of the MP3s were poor quality (which the prosecutors interestingly tried to disprove this point later, showing some recordings to the court of CD vs. MP3, which has rather bad acoustics). Another had stated her that although she felt neutral, her sons felt strongly about the issue. One other person was dismissed who had previously said he downloaded MP3s, but only via Itunes. One other lady who was dismissed didn't download MP3s, but was questioned by the prosecutors if her listening to National Public Radio would affect her decision on the case (apparently they've done a series on this recently, which she said hadn't heard). All those dismissed stated that what they've experienced would not cause them to be partial in the case. I'm not completely sure exactly what had caused the removal of each one. Outside of this, another was replaced due to physical problems that made her uncomfortable sitting for long periods of time. Of the remaining 12 jurors I believe only 2 had stated they downloaded MP3s (via Itunes) and a small handful had a mp3 player. One of whom I [opinion]personally felt would be the first to be dismissed [end opinion]. He is a teacher who has read many articles in Rolling Stone magazine about the issue and had discussions with his students in class about it. Aside from this he felt that he could be unbiased in the trial.

Opening statements
RIAA lawyers - Focused mainly on that people that work at record companies are real people whose jobs are in danger of mp3 downloading. He also loosely described the KazaA program, how it works, and some on basic computer networking. They also described how they were able to track an ip address (via the company Safenet) and subpoena Charter Communication (ISP) for the address attached to the ISP. They also focused on the kazaa email address being similar to the address and username that Thomas usually uses. [opinion] This information, from my background in computers, was solid, at least in the brief primer that they gave, however since most of the remaining jury isn't very computer savy, it could all just go over there heads [end opinion]. They also claimed Thomas tried to deceive them by changing her hard drive.

Defendant - Focused mainly on the RIAA lawyers not having any evidence tied directly to Thomas. An IP or MAC address can be "registered" to a specific residence, but there is nothing that ties it to specific computers. There are many ways people can gain internet access through her ISP (to be shown) that will be shown across the trial. He refuted the username tying by saying, would Thomas use her usual username if she was stealing? He also explained the hard drive replacement, which had failed and was taken to Best Buy.

First Witness Jennifer Pariser - The RIAA lawyers seemed slightly disorganized, especially when their first witness wasn't available when called. She had to be tracked down outside the courtroom. She stated that she works for litigation for Sony BMG. She mainly was questioned to give the basic process or record labels and the basic process the RIAA and Safenet used to track downloaders. I had to leave in the middle of this, but I had a friend who stayed later, and I'll try to get more information

I had heard that she stated that even ripping a single instance of a song was considered stealing, apparently even if it is a backup copy, which goes against fair-use laws. I will see if I can confirm this with my friend.

[opinion] The RIAA lawyers have some good evidence, and seem to be explaining the details slowly and intelligibly. What they are missing is something that ties the IP or Mac addresses to Thomas. If they don't have that there is reasonable doubt. All of their witnesses so far have been ones that the RIAA lawyers have spoken to before, and possibly prompted. If Thomas is found guilty there is the issue of how much? Obviously $3.6 million dollars is ridiculous, heck even $40,000 is ridiculous. Even if she had the files on her computer and made them available via KaZaA, how many times were those 25 songs actually downloaded? What is the actual impact of this so-called copyright infringement?

Also, what's to say a library isn't invoking copyright infringement? The library is there offering books to people, who could potentially bring them home and copy them. For instance I could write down whatever poem I want. Doesn't it sound ridiculous to say that the library is in copyright violation because it is "sharing" books when it is the copiers that "committed the crime". How is this different from KaZaA? Also, It isn't illegal (even though Jennifer Pariser thinks so) to download backups of your digital files that you currently own. Whose to say the KaZaA distribution isn't for backups? [end opinion]


Additional news coverage (Chronological, ascending):

*Detailed report from David Kravets of

*Detailed report on morning's proceedings by Eric Bangeman of Ars Technica.

*Associated Press report

*A six-man, six-woman jury has been seated to hear the Recording Industry Association of America lawsuit against a single-mother it claims downloaded and shared copyrighted songs. The jury was seated at 10:45 a.m. in U.S. District Court in Duluth. Opening statements are scheduled to begin at 11 a.m.Duluth News Tribune


Ground rules for citizen-correspondents:
1. Submissions should be by email, phone, or fax.
2. Submitter may not be anonymous to me (i.e. you must disclose to me your name, address, and contact information).
3. In publication I will disclose your name only, or, if you prefer, a first name only, or a fictional "handle" of your choice.
4. Please be painfully accurate.
5. Please check with Court as to what you're allowed to bring into the courtroom, and be sure to follow the Court's rules at all times. I'm sure cameras and recorders are prohibited, although they can be used outside the courthouse.
6. I will be using editorial discretion, and will not publish anything that doesn't meet the "plausibility" standard (to borrow a phrase that the RIAA has been having problems with lately, see, e.g., Interscope v. Rodriguez).


Recent court rulings and filings of note in Virgin v. Thomas:

Court precludes plaintiffs from producing "chain of title" documents

Commentary & discussion about Virgin v. Thomas jury trial (chronological, descending):
Knoxville News Sentinel
Geek News Central
The Nerd Insider
MetaFilter Community Weblog
Perfect Duluth Day
L. A. Times (French)
Heise Online (German)
Duluth News Tribune
CMJ 07
File Sharing Talk
P2P Forum Italia (Italian)
PP International
Punto Informatico (Italian)
Ars Technica
# 10/2/07 #
Associated Press
LA Times
Boing Boing
Ars Technica
ABC News Technology & Science
L.A. Times
Associated Press (
Ars Technica
Ratiatum (French)
Ratiatum (French) (Dutch)
Ars Technica
Associated Press (Cox.Net)
Digital Daily
Associated Press (
Ars Technica (Dutch)
Duluth News Tribune
Digital Media Wire
The American Prospect
Minneapolis Star-Tribune
Duluth News Tribune (Magyar)
Associated Press (via
tiscali.internet (Dutch)
IT-News World (German)
Associated Press (via Yahoo! Finance)
Ars Technica
Associated Press (via ShowBuzz)



raybeckerman said...

Comment rejected.

This blog has asked people to attend the trial to observe, take notes, and report back to the rest of us who do not have the ability to get to the courthouse.

Just said...

Hello, I attended the first half of the trial this morning and would like to report what I saw/heard. How do I make contact?

Unknown said...

Ars Technica has coverage of this morning's proceedings on their site

raybeckerman said...

just..... click on the email link on the comment page under "Leave your comment" or my the link to my name in the profile in my blog's sidebar and you'll get my email address.

jeff.... thanks... i've already linked to it....

Unknown said...

for those of you who do not have time to read all accounts, i recommend ars technica's version. its more detailed, and doesnt try to sound like a newspaper.

and ray, thank you for all that you do.

Igor said...

Not specifically questioning the defense lawyers tactics but why doesn't he object to the whole "theft" opinion testimony from the RIAA witness...the opinion seems irrelevant and well not an expert opinion (I ask this not having seen what's instored for the cross)? If it's not irrelevant than perhaps the word theft has too much of a legal definition to allow the witness to use...

On cross, I think the defense should ask about personal back up copies and fair use and bring up the fact that 30 seconds is not enough to identify infringement of the song (given that 30 seconds is less than the decoys seeded by RIAA consultants hired to contaminate the file sharing networks).

Also Ray, is this a bifurcated trial or are damages and responsibility decided in seperate trials?

raybeckerman said...


being a trial lawyer is a much more complex thing than you seem to think it is....

it's not some freewheeling thing where you object to testimony you object to....

don't start second guessing lawyers until you've had about 30 years of specialized training in civil litigation.....

raybeckerman said...

no it's not bifurcated...

raybeckerman said...


thank YOU for caring....

bbsux said...

I, like many, have been spoiled by movies and TV showing lawyers. The reality probably bears little, if any, resembalance to those tv shows and movies.

Igor said...


You are right...but it's everyone's favorite pasttime to second guess...sorry if I offended.


raybeckerman said...

Rejected a long comment with about 5 paragraphs, because 2 of the paragraphs were objectionable, since my "moderation" powers include "publish" and "reject" but no "edit" function.

Moral of the story: submit shorter comments.

mhoyes62 said...

Can they bring in Jayson Steet to explain about the shortcomings of Kazaa and how it will show things being shared, that aren't even there?

raybeckerman said...


Let me bring you to the real world. Expert witnesses have to get paid. And their travel expenses have to get paid.

Ms. Thomas doesn't have that kind of money.

The RIAA does.

Which is why the RIAA can put on a string of lying puppets, and Ms. Thomas will have to do without an expert witness at all.

Which is why it is important for people to start making financial contributions to help the victims of these unfair and oppressive lawsuits.

mhoyes62 said...

That is what I was afraid of. That makes their choices in picking the poorer people that can't defend themselves more apparient.

I do understand about the cost of litigation, having been through a very nasty divorce (I'm still trying to recover from it).

One question on that though. If an expert testifies in a case, and court holds that the testimony punches holes in the RIAA's case, can that then be used in other cases? Or, does it have to be upheld in several different cases to become weighty enough?

I certainly feel for the defendant in this case and hope the jury can weed through all the honnied words that are being used by the RIAA. From the descrption of yesterdays testimony, it does sound like that poked holes in the IP address is a computer idea, but I would still like to see them get the RIAA experts to admit that the Kazaa network cached results from users signing on, and that multiple people could have the same id, so it is possible that someone at some time had that IP address, and it was just that Safenet saw the IP address at a time, she had been assigned it. There is still nothing that points directly to a specific machine.

Alter_Fritz said...

OK, so "Trial-Virgin" Dr J. lost now its "virginity" and had his first appearence before a jury while the other Virgin, Virgin Records is out of the case.

This makes me wonder: They were plaintiffs against Ms. Thomas too, now there is oviously no more legal dispute that she did not infringed on virgins copyrights. She is the prevailing party in that part of the case, isn't she? In howfar provides the copyrighlaw and the rules for civil suits with more then one party plaintiff that Virgin must pay parts of her costs in case the judge has the same opinion as I have about who "won"?

raybeckerman said...

alter_fritz says:

"Virgin Records is out of the case.

This makes me wonder: They were plaintiffs against Ms. Thomas too, now there is oviously no more legal dispute that she did not infringed on virgins copyrights. She is the prevailing party in that part of the case, isn't she? In howfar provides the copyrighlaw and the rules for civil suits with more then one party plaintiff that Virgin must pay parts of her costs in case the judge has the same opinion as I have about who "won"?"

Excellent comment, you are absolutely right. Ms. Thomas has already won against Virgin, and is the prevailing party as to Virgin. She is therefore eligible to apply for an attorneys fee award against Virgin.

Art said...

It seems pretty sudden that Virgin is out of the case. Wouldn't there have been a motion to dismiss with prejudice for that plaintiff to be dropped from the case? Or is that only if it applies to the entire case? If there had been a motion, I would expect there'd be a reason stated for the withdrawal. But from the Sony VP's testimony, it seems they didn't know why.

Marc W. Bourgeois said...

Virgin was dismissed with prejudice before the trial began. The plaintiffs made this motion. A reason was not given on Tuesday, but according to testimony today the incorrect song was placed on the plaintiffs exhibit. Janet Jackson's Back was listed on the exhibit, but the actual song plaintiffs claim MediaSentry was able to acquire was "Come Back to Me". The episode was blamed on clerical error.

It also appears from testimony that plaintiffs claim Virgin is not the copyright holder of "Come Back to Me" but continue to claim that Virgin is the copyright holder of "Back".

raybeckerman said...

Jammie, I know I speak for everyone when I say... (a) good luck and (b) thank you.
Best regards,

Igor said...

This begs the rhetorical question of "How many other $150,000 per song clerical errors were made?"

Marc W. Bourgeois said...


At least one. A Godsmack track was dismissed because the incorrect SR# was transcribed on the exhibit. One other Godsmack song was dismissed because while the copyright application had been filed, the record company has not yet received back the copyright certificate. That track was dropped due for "simplicity".

Igor said...

Upon further reading, I find it even more unlikely that the downloaded...if all the files are wma than she ripped because most file on the sharing networks are in mp3 format not wma and there would be no reason for one to actively seak out wma files since they are harder to find and often nonexistent for most songs...where as when you use media player to rip the default is wma.

Also, did the RIAA redirect seem too much like a criminal defense lawyer asking "is it possible" questions?

The App Chap said...

I'm sorry to say that Jammie lost. It's too bad that the first case to go to trial had to have such strong circumstantial evidence implicating her. The screen name and the matching musical tastes are what I presume did her in.