Thursday, September 27, 2007

First RIAA Jury Trial to Start Tuesday October 2nd in Duluth, Minnesota, in Virgin v. Thomas; Motion for "Summary Adjudication" Denied

The RIAA's motion for "summary adjudication" was denied last week, and the jury trial in Virgin v. Thomas is now scheduled to begin Tuesday, October 2nd, at 9:00 AM, before Hon. Michael Davis, at the federal courthouse in Duluth, Minnesota:

417 Federal Building
515 W. 1st Street
Duluth, Minnesota

Proceedings are open to the public.

This is a case in which the RIAA has no evidence that the defendant, Ms. Jammie Thomas, committed any copyright infringement. The RIAA has claimed that it will call Dr. Doug Jacobson and Cary Sherman as witnesses, as well as employees of the various record companies and of SafeNet/MediaSentry.

Ms. Thomas is represented by Brian Toder of Chestnut & Cambronne, located in Minneapolis, Minnesota.

The RIAA is represented by Richard Gabriel and Timothy Reynolds of Holmes Roberts & Owen, located in Denver, Colorado.

This is believed to be the first jury trial since the RIAA began its litigation campaign more than 4 years ago.

Order Setting October 2nd as date certain for trial*
Plaintiffs' Statement of the Case*
Defendant's Statement of the Case*
Plaintiffs' Witness List*
Order Denying RIAA Motion for "Summary Adjudication"*

* Document published online at Internet Law & Regulation

Commentary & discussion:
Knoxville News Sentinel
Geek News Central
The Nerd Insider
MetaFilter Community Weblog

[Note: Any additional commentary and discussion about the Virgin v. Thomas jury trial will be posted in "Citizen Coverage of Virgin v. Thomas Jury Trial" above.]


Keywords: digital copyright online 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


Igor said...


Have you seen/heard about this case:

Alter_Fritz said...
This comment has been removed by the author.
Sanji Himura said...

I guess it is put up or shut up for the RIAA.

Although I do have a question concerning the witness list for the RIAA. Is it common to have an entry in civil court for the plaintiffs to call any of the witnesses for the defendant?

Alter_Fritz said...

As a direct result of piracy over P2P networks, Plaintiffs have sustained and continue to
sustain financial losses.

Hm, where is all the hyperbole and exaggeration gone about "devastating" financial losses they rutinely claimed in all their courtpapers so far? ~$0.70 per song -had a copying occured after all at a time (2005) when the alleged illegal copy wasn't for sale as a legitimate copy in the first place- oviously isn't so devastating after all, is it!

On February 21, 2005, Plaintiffs’ investigator, SafeNet, Inc., detected an individual using
Internet Protocol (“IP”) address engaged in the infringement of Plaintiffs’
copyrighted sound recordings.

We had it pointed out more then enough times that this is simply nonsense.
"Individuals" don't use IP adresses, Computers and certain network hardware might use IP addresses. so every time plaintiffs talk about the "catching/observing/viwing/what ever" of an specific individual in their Statement of Case, They simply missrepresent some important facts. Joe Everage calls such a behaviour lying!

Plaintiffs then filed a “Doe” lawsuit and obtained an order for
expedited discovery to determine the identity of the infringer."

Another missrepresentation of facts. Plaintiffs had not done it to "determine the identity of the infringer" but to determine the identity of the person that might have been an ISP customer at a certain date/time. Their own expert Dr. J. explained why this claim of Plaimtiffs is false and they themself admit it in the following sentences then they acknowledge that they get names of subscribers, not the names of infringers!

P.S. minor technical question; While the plaintiffs are always refering to some 26 copyrighted Sound Recordings. I can't find any mentioning in the section what they claim they will prove at trial that they have files downloaded and that these files are some copyrighted files. I mean, back at the time when they claim their investigator did all those things(from whom some are oviously illegal in certain states as we have learned in recent court cases), those plaintiffs simply had no copyrighted mp3 files that anybody could buy or download or what ever. Some of those plaintiffs only recently started to sell mp3 files via itunes or Amazon. But back in 2005? Have they provide the files they claim they were the owners of back in 2005 to the defendants counsel? Are those files on record as evidence? Hve they provided the originals as evidence from whom the allegedly illegal copies were created in alleged violation of exclusive copyrights?

tereastarr said...

I will admit to being nervous as this is the first case to ever go to trial (that in itself is rather mind blowing when I think about it). I also have to thank you, Mr. Beckerman, as your site here has helped my case in more ways than one. Wish me luck.

raybeckerman said...

Dear tereastarr:

1. By standing up to these bullies you are doing something for a lot of other people, and I commend you for that.

2. Don't be nervous; your case is in good hands.

3. We still live in a nation of laws, and the RIAA, which is trying to twist and distort the law, and abuse our legal system to extort money from innocent people like yourself, are going to get their comeuppance.

4. "Though the mills of God grind slowly, yet they grind exceeding small".

5. Good luck.

6. On behalf of all of those other victims out there, past, present, and future, who weren't able to fight back, I thank you for what you are doing from the very bottom of my heart. You are not alone. You have a lot of friends.

All the best.

Knock 'em dead.

Your friend,


Randy said...


You have no idea how many people are on your side on this one.

We'll be rooting for you on the sidelines.

pepper said...

If this jury trial goes the right way, then I assume the Howell family of Scottsdale will be appealing their case?

AMD FanBoi said...

If the RIAA has no evidence, then it should be a thankfully short trial.

I, for one, will still be very surprised it this thing actually goes to a jury verdict. Still lots of time for the RIAA to cut and run.

In my non-lawyer opinion, there is only one piece of evidence that matters:

Can the Prosecution produce the actual computer that was "detected" running the P2P program in question, at the time in question, sharing the files in question, and can they tie it to the Defendant? Preponderance of the Evidence might carry the day under those circumstances alone, even if the actual act was never witnessed. But without the hardware bit, you must acquit!

I hope the Defendant's lawyers take a page from the last Michael Jackson trial, where the defense lawyer opened up questioning of each new prosecution witness with the challenge: "Have you discussed any of your testimony here today with the Plaintiff's lawyers ahead of time?" That killed their credibility before he even got down to questioning them individually.

Now can somebody camcord this thing, or would that violate copyright? :^)

Alter_Fritz said...

Now can somebody camcord this thing, or would that violate copyright?

I guess it wouldn't be to much work for an american to give courttv a call that they set up some cams in the courtroom.
~20000 suits, and this the first one going to trial, even if established mass media that is in bed with those plaintiffs refuses to report objective about those cases, this one is worth it to get broadest possible coverage!

And if the lamescream media refuse to report, maybe some shaky cam rips with heads in the picture from the visitorseats distributed via BT will do. ;-)

Alter_Fritz said...

Ray was already aware of it!

(doing a 0.15 second google search via Ray's new search field showed it as 2nd link for query "Howell")

Interested Observer said...

It will be interesting to see if Cary Sherman is called as a witness since he has special knowledge as a lawyer who specializes in technology and IP. Somehow I doubt that he will be called.

Good ole Dr J will put on his usual sterling performance where he will help the defense more than the plaintiffs by admitting that his tests and examination do not meet any scientific standards and he cannot prove that the defendant was the person behind the computer.

Then Mark Weaver will have to admit that MediaSentry/SafeNet is not licensed to investigate in MN.

And I wonder what Eric Stanley's qualifications to examine the defendant's hard drive are.

raybeckerman said...

Anybody who thinks Cary Sherman is going to testify at this trial, please raise your hand.

I have a bridge in Brooklyn I'd like to sell you.

Igor said...

thanks atler_fritz. I probably should have used the search...I was away for that week so probably missed that update when I was catching up on email.

I would love to see this on court tv...especially the crosses of RIAA witnesses...heck I'd love to do the crosses :).


Interested Observer said...

I would like to see proof of ownership before I enter into negotiations over the price! I hope your trail of ownership is better than the record companies!

AMD FanBoi said...

Regarding the Prosecution Witness List:

I don't see where they're calling the actual MediaSentry/SafeNet employee who allegedly actually detected the filesharing activity in question, or everybody else in the chain of custody who handled, stored, and could have altered the "evidence".

I also don't see what testimony to "the impact of the harm to the recording industry that has resulted from widespread illegal sharing of Plaintiffs’ copyrighted recordings over the Internet" has to do with THIS case. While the recording industry will claim huge losses from filesharing, not only should they have to prove them in court with something far more definite than a graph with one line representing filesharing rising while a second line representing profits falls, but that "harm", if it exists at all, is spread over millions of people, and shouldn't all land on any single defendant! It sounds like they want to pin everything one this one person.

If they actually get someone from MediaSenty/SafeNet up on the stand, I hope there will be an intensive grilling about their secret contract, and what it says that MS/SN can detect, and NOT detect. The quality of their investigative methods needs a deep anal examination with some sunlight brought to it. Refusal to fully disclose their methods and known weaknesses should cast complete question over the whole process.

And as I've said before, the computer that actually detected the activity in question needs to be examined in the state it was in when the alleged activity was detected. It might well have been compromised and not reporting correctly.

Ray, what is "voir dire"? It certainly sounds dire.

raybeckerman said...

AMD, please stop using the term "prosecution". That is a criminal law term. This is a civil case. There is no prosecutor here. There is just a gang of 4 large corporations trying to make money by hurting people.

sanji, no it is highly unusual, actually irregular, to have a stupid designation like that in one's witness list. The RIAA lawyers do things like that.

Alter, I don't think a federal judge is going to let the RIAA get away with the 'hyperbole' they like to use, to make up for the absence of evidence, in front of a jury. If they play games like talking about the 'wave of piracy all across the country' and all that nonsense, the lawyers will probably wind up in jail. The judge is going to want to see evidence that defendant infringed their copyrights; since they don't have any evidence of that particular sort, I think they will be bounced out of the courtroom in pretty short order. As to what "files" they've produced, I don't know.

pepper, the Howell family has a good basis for an appeal. This jury trial will not affect that one way or the other.

I don't expect the RIAA's "expert" to get qualified to testify; it would be reversible error to permit him to testify since he flunks all Daubert factors.

No cameras are permitted in court, unless that court has a special rule for televised proceedings, as, e.g., Court TV.

A "voir dire" in connection with an expert witness means a preliminary hearing, out of the presence of the jury, examining his credentials to testify to the subject matter on which they intend to call him. In this case, after Mr. Toder's "voir dire" of Doug Jacobson, I expect the Judge to rule that Dr. Jacobson may not testify, and so, the jury will never hear from Dr. J. at all.

Virtualchoirboy said...

I would absolutely love to see the RIAA attempt to show two distinct and unrelated graphs as cause for their losses (rise in P2P vs drop in profits). Any smart defense attorney would then have to pull out three sets of similar graphs: # of PC's manufactured vs drop in profits, # of broadband connections vs drop in profits, and # of portable MP3 players (e.g. iPod) vs drop in profits. Then ask the RIAA if those are also related in the same fashion as the rise in P2P and if they should be outlawed as well?

Fun times... :-)

raybeckerman said...


The RIAA isn't trying to show any actual damages.

Because it can't.

AMD FanBoi said...


I clearly suffer from too much Perry Mason from when I was young.

Thank you for the advanced education.

Flat_Eric said...

I plan on showing up on Tuesday. I first heard of the case this morning on slashdot. All i could think is thank god I have Tuesday's and Wednesday's off. I will get to witness history in the making.

raybeckerman said...

AMD, you're forgiven.

flat_eric, that's great that you are going to get to be there. Please email me or phone me updates if you can, or call me at 212-763-6809. You can email me your real name off line so I'll know whose call to expect.


raybeckerman said...

Comment rejected. Policies #8 & 9.