Saturday, January 05, 2008

Excellent David Kravetz article in shows how Jennifer Pariser's "misspeaking" may have caused miscarriage of justice in Thomas case

Important article by David Kravetz of, who covered the Capitol v. Thomas trial in person and gavel to gavel, about Cary Sherman's recent revelation that Jennifer Pariser "misspoke" in her testimony at the trial, which led to a $220,000 verdict:

RIAA's Sherman Speaks (Un)Believable 'Catch 22'
By David Kravets

Don't believe Cary Sherman, the president of the Recording Industry Association of America, when he told a National Public Radio audience that Sony BMG's anti-piracy chief had misspoken during her testimony in the copyright infringement trial against Jammie Thomas.

And if Sherman was telling the truth during that NPR interview, Thomas was the victim of a miscarriage of justice -- despite the mountain of evidence against her.
Complete article

Commentary & discussion:

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


James said...

Every defendant and their attorney(s), where applicable, should take this and assail the credibility of everything the RIAA's crew says in court now. This is proof they will say whatever it takes to win a verdict.

Anonymous said...

Its too bad we haven't gotten ahold of the transcript of this trial yet.

Anonymous said...

Isn't this grounds for a mistrial???


Anonymous said...


I expect the RIAA to get away scott-free from this "misstep". After all, so far they've gotten virtually their way with everything else in these cases. I'd like to say these trials, but so far there has only been 1 trial, and they got their way with that one as well.

While there is no single fact, judge, or ruling I can point to as definitive, over this long haul now I have gotten the feeling that the vast majority of the judges are considering that the defendants are actually guilty from the outset of stealing from the record companies, damaging them in huge, albeit unproven, amounts, and have been willing to paper-over the deficiencies in existing law to allow the RIAA to proceed wherever possible. This is only my opinion. However, even before Twombley, the Failure to State a Claim upon which Relief can be Granted should have kicked all these cases from the very outset.

The sad truth is, the record companies (remember, the RIAA is not a plaintiff here in these cases) truly have no evidence in the beginning. An IP address identifies neither an individual, nor a specific computer. It only identifies an ISP account holder, who may know nothing at all about P2P filesharing, copyright, or anything that these cases are based on.

Through a very unbalanced procedure, the plaintiffs have been able to demand discovery, invade privacy, lie, extort, and bully defendants into settlements, and into fishing expeditions trying to find the evidence that never existed in the first place. All this, while resisting all discovery attempts on themselves.

The judges when viewed as a whole, who are supposed to be impartial and prevent abuses of the law, seem more willing to abet the plaintiffs at every stage, than stop them cold until they can provide something much more than they're shown up to this point.

And the way that the plaintiffs, multiple record companies, who aren't even the party of interest (the RIAA is), are allowed to gang up on the defendant in every case is also an issue that the judges seem loath to rein in. It appears to me that the defendants are immensely prejudiced by the fact that they're sued by multiple plaintiffs, where no two plaintiffs own even a single song in common. Defendant cannot settle with an individual plaintiff under mutually agreeable terms because plaintiffs have agreed not to accept individual settlements. It is as if an alleged serial bank robber was sued in a single case by every bank he was accused of robbing, and could only settle with them all together. There may well be different circumstances regarding every song in question here, but even if that's true, they are all being treated in exactly the same way.

Not a single instance of distribution has yet been proven. Not a single instance of downloading by the defendant has yet been proven. (Computer files can come from many sources.) Not a single case of proving that the defendant was the one who loaded the filesharing software, loaded the songs, acquired the internet account, fired up filesharing, and damaged the record companies in any measurable way has been proven, yet these cases continue, consuming immense amounts of money, and lives in the balance.

And this doesn't even address the questionable, illegal, and inaccurate investigative methods that the RIAA has used in bringing these cases.

Nor the fact that computer and their disk drives break, and are repaired, all the time. A missing hard drive is an instant Spoliation of Evidence charge, seeming followed by an automatic guilty verdict.

This is why I feel that no matter how egregious their conduct, no one wants to be the one to slap down the RIAA in any meaningful fashion, and this little goof isn't going to hurt them in the least.


Jadeic said...

Let's hear it for all those anonymous posters - excellent contribution from XK-E.

Jadeic said...

Some posters here and elsewhere appear to be quoting from a trial transcript. Is this yet available and , if so, where?


Anonymous said...

Thanks Jadeic.