Recording Industry vs The People: RIAA Wins in First-Ever Jury Trial; Verdict of $222,000 for 24 Song Files Worth $23.76

Thursday, October 04, 2007

RIAA Wins in First-Ever Jury Trial; Verdict of $222,000 for 24 Song Files Worth $23.76

The first-ever jury trial for the RIAA, in Vrigin v. Thomas (renamed Capitol v. Thomas after Virgin Records withdrew from case), has resulted in a verdict against the defendant, Jammie Thomas, in the amount of $220,000.

Associated Press
Wired.com
Ars Technica

[Editorial opinion: I'm sorry to hear that Ms. Thomas lost, but I don't think the case is over by a long shot; the verdict -- based as it upon an entirely erroneous jury instruction going to the very heart of the case -- will almost definitely be set aside on appeal.-R.B.]

[Editor's Note: I can't provide further coverage tonight because I have to leave to get to my Kung Fu class. It's important that I maintain my health and fitness. I have a lot of RIAA-fighting ahead of me.]

[Editor's Note: I wonder if the RIAA lawyers ever brought it to the attention of Judge Davis that their favorite case, Atlantic v. Howell, was vacated.].

Commentary & discussion:

p2pnet.net
Slashdot
Punto Informatico (Italian)
Heise Online (German)
antiMusic
p2pnet.net
Wall Street Journal
Jurist Univ. of Pittsburgh School of Law
C/Net News
Computer World
Patry Copyright Blog
Wall Street Journal
Technology & Marketing Law Blog
Digital Daily
Idolator
SecurityFocus
Download Squad
Digital Media Wire
Channel 3000
Michael Geist
Good Morning Silicon Valley
FutureZone (German)
p2pnet.net
Tech-Ex
Tribune de Geneve (French)
ABC 7Online
sg.hu (Magyar)
antiMusic
HardcoreMusic.com
Idolator
Peopleware
PC World
Online Media Daily
The Hackenblog
ZDNet
NPR "All Things Considered" (Guest Eric Bangeman of Ars Technica)(Direct link to radio program)
gulli (German)
The Huffington Post
Wired.com
Portal IT
Rolling Stone

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

7 comments:

Unknown said...: The RIAA is potentially putting a family out of their home. I hope they sleep well at night.

I have other comments but they run afoul of the comment rules and some local laws on obscenities and communicating threats.; October 4, 2007 at 6:26:00 PM EDT
Scott said...: I hope the RIAA starts gloating and crowing to the press about this obscene verdict. This is going to turn into a PR nightmare for them. The shock value of a quarter million dollar judgment will actually damage the record industry's credibility more than if they won just $1 per song. They got what they wanted, and what they wanted was unconscionable.

The RIAA is certain to have fewer friends in Congress when this plays out fully. Jammie Thomas' Congressman is 17-term Democrat Jim Oberstar. Jim owes a lot more to the Ojibwa people on Mille Lacs than he does to the record industry. Oberstar's constituents should be writing to him today to express their outrage.

One other observation: The jury was all white, and Jammie is Ojibwa. In spite of Minnesota's somewhat undeserved reputation as a bastion of liberalism, relations between white people and native people in the north are often not good. (Recurring friction points are hunting and fishing rights; and the perceived prosperity of native casinos in a fairly poor area of the state.) The racial composition of the jury is DEFINITELY a factor and should not be overlooked.; October 4, 2007 at 6:35:00 PM EDT
MikeWas said...: I think this verdict is a disaster for both plaintiffs and defendant. A quarter-million-dollar judgment against a relatively innocuous infringer - taking the jury's verdict at face value - is bound to cause a backlash and makes statutory reform in the people's interest a bit more likely.

Also, given the size of the verdict, the defendant has absolutely nothing to lose by appealing the "making available" instruction, which seems like it must have been the basis for the jury verdict. Also, the vacation of the Howell case might be the basis for significant post-judgment relief.

I wonder how Richard Gabriel sleeps at night. Perhaps having sold one's soul to the Prince of Lies has a somnolent effect.; October 4, 2007 at 8:43:00 PM EDT
Nohwhere Man said...: If I understand jury instruction #14 and the decision correctly, by merely offering a sound recording for loan a library is 'making it available' and are thus infringing. The same with one person loaning a disk or book to a friend. There's even the possibly more extreme case of leaving a CD out on the front step overnight- someone could pick it up, burn a copy, and return it.

I'm also curious whether the plaintiff was able to demonstrate standing to sue in the first place (chain of copyright and assignments of rights). Was that addressed at trial at all?

I do hope this is appealed. Perhaps the EFF will step in to help.; October 4, 2007 at 9:05:00 PM EDT
Art said...: It is a sad, sad day for justice!!!

I'll be sending a check to her attorney to help with the costs and hopefully for an appeal...

The jury instructions are in the Wired article, or directly here.

I think, as Ray mentions, that the "making available" instruction is core to the matter. The instructions also lead jurors to believe the Sony VP who said that ripping a CD is theft. I guess "fair use" has been repealed or something and we didn't know about it. So with this logic, just by having Jammie rip the CDs in court, she was breaking the law. There's also the constitutionality of the award, it should be cut down to $24 on appeal.

Regards,
Art; October 4, 2007 at 9:39:00 PM EDT
raybeckerman said...: Deleted several comments as off topic.

Deleted one comment because it made incorrect statements about what happened at the trial.; October 5, 2007 at 12:48:00 AM EDT
Dragon said...: We should let the RIAA know this is rediculous. I propose a boycott on buying their music.

For most of the people that download these songs for free, the reason is because they can't afford to go out and buy the cd's they want at the price that is charged for them.

I suspect if people suddenly stopped buying the cds altogether, the prices on these cds might go down.

Or the RIAA would go after people for more money to make up their losses from the boycott.; October 5, 2007 at 7:51:00 AM EDT

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove