Wednesday, October 15, 2008

RIAA asks for permission to appeal from Capitol Records v. Thomas order setting verdict aside

In Capitol Records v. Thomas, the RIAA has filed a motion asking for permission to appeal from the Court's September 24, 2008, decision setting the $222,000 jury verdict aside.

Normally, "interlocutory" orders of that nature are not appealable.

Memorandum in support of motion for permission to appeal

Commentary & discussion:

Duluth News Tribune
Heise Online (German)
Digital 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


Ben said...

It's interesting that the RIAA isn't running away from the appeals courts. They are usually afraid of the possibility of creating a precedent.

Anonymous said...

I dont think they should be permitted to appeal at this point. I also do not see how they can think this motion will be granted, as is not this motion directed to the same exact Judge that upon his own motion asked the parties to brief the question as to if the Court had committed an error of law in the Jury instructions.

My understanding is the FIRST place that a Court looks in deciding the meaning of a law is the EXACT WORDS of the law. The law clearly says "Copies or Phonorecords" Since the instructions allowed a finding of fault without a finding of "Copies or Phonorecords", it clearly was in error.

I also question WHY they want a faster appeal to the 8th Circuit. Do they not see the problem they will have if that court were to Promptly strike down their case? That decision would be cited by every Defendant, and shut down their lawsuit machine everywhere. They also might decide other facts against them as well. As an example, the term "Phonorecords" at the time of the laws enactment clearly did not include Compact Disks, as such items were not yet in use at that time.

The worst case for the Plaintiff is that the 8th Circuit rules the law does not cover the conduct complained of. "Copies or Phonorecords" could be easily be inferred by a Judge to require a physical object containing the song. Since there are no such physical objects in this case, this could be a result.
P2P networks of the bandwidth required for filesharing works of this size did not exist for general use by the public at the time the law was passed. Also, IPv4, the means of file transfer alleged in this case did not exist until 1981, a few years after the law was passed.

Maybe with all the downsides the Plaintiff may strike, maybe I should be in favor of letting them appeal now. However, I think the total case is the only true thing that should be Appealable. Therefore, I continue to say let them wait for the entire case to be retried before being appealed.


Anonymous said...

The ultimate in judicial economy (the RIAA's favorite buzzword today) would, of course, be no trial at all. The RIAA simply points their finger at you and you pay up.

Given that the RIAA doesn't play by any of the other rules here in court, why should we have ever expected them to play by this one granting a new trial?

Of course if even one word of the jury instructions change that would affect damages, if not the whole verdict.

Now that the RIAA has poked their finger in this judge's eye will they really want to retry their unproven case in front of him?


Anonymous said...

Just Say No!

Lior said...

I'm not a lawyer, and I see the sense in generally having everything appealed at the end of trial -- but it seems to me that orders granting a new trial are better reviewed before the new trial starts rather than after.

Anonymous said...

Albert, you make great points. However, consider the alternative.

If they don't successfully appeal to the 8th Circuit Court of Appeals a second trial is granted. Here the RIAA, with new jury instructions in place, better legal representation for the Defendant, a new jury enpaneled, and their courtroom legal strategy now well understood, faces a much better chance of defeat. They've already lost their only courtroom victory and now face the distinct possibility of their only courtroom appearance becoming a defeat. That is certainly worse than trying to convince an Appeals Court that Distribution doesn't require Actual Distribution since Actual Distribution is so hard to prove. As happened in another wrongly decided case somewhat related, they can hope for a ruling best classified as being "Motivated by sympathy for the Plaintiff."

Or that the Defendant can't afford to continue the fight at the Appeals Court level and has to throw in the towel.

Lior, they're trying to appeal the judge who said that a manifest error of law was committed in the trial and that trial is now wiped off of the books. They're going to the Appeals Court to have it say, "No it wasn't (a manifest error)".


Mark said...

Although tactically I think it'd be best if the RIAA's appeal were denied, it might make some legal sense. Their memorandum is correct that the contention is over a point of law (the "making available" theory) that the Eighth Circuit has not ruled on at the appeals level, and in which cases have gone both ways in other trial courts. So it would seem to be ripe for clarification, and doing the clarification at this stage would make some sense as opposed to holding a second trial first before ruling whether the second trial was necessary.

Strategically, it also has the possibility of definitively burying the making-available theory if the Eighth Circuit rules against the RIAA on the point. I don't have a good read on the circuit to know what the odds of that outcome versus setting the wrong precedent are.

raybeckerman said...

There is no trial court that has upheld the "making available" theory except 2 cases in which the issue was never briefed by the defendant.

Anonymous said...

At best plaintiffs would get the appeals court to clarify the following:

1. Making available is not infringement.
2. Distribution to MediaSentry alone can be infringement if other significant conditions are met. If defendant does a significant amount of something (whatever that means, and here we reference the video tape copying cases where employees in a video store picked out a tape for customers and used the VCR there to copy a tape for customers) in the process of making a copy for MediaSentry, defendant can be liable.

But jury instructions didn't have these standards, so the end result would be a new trial.


Anonymous said...

good point!

Anonymous said...


If this does make it to the Appeals Court, is there anyway for a layperson to have some input or at least write to the Appeals Court in order to let them know our opinion?

raybeckerman said...

No there isn't.

What members of the public can do is

-contribute to defense funds

-send their Senators and Congresspeople what Judge Davis said and ask them to heed his call

-if you want to help "Recording Industry vs. The People", buy stuff from our affiliate advertisers through the ads (we get a commission if you buy stuff through these ads)(if you don't see what you want, let me know by email or a comment, and I'll try to accommodate)

Anonymous said...

"If this does make it to the Appeals Court, is there anyway for a layperson to have some input or at least write to the Appeals Court in order to let them know our opinion?"

If you're just some dude, like me, your opinion doesn't matter. Judges don't care what we think, nor should they.


1. The Electronic Frontier Foundation has written amicus briefs for various copyright cases in the past, and surely they will in the future. So you could join them. Or another such group.

2. Don't forget other popular democratic methods, like writing letters to your elected officials or running for office yourself.

3. Keep up to date on the issues. If you notice something useful or interesting that defense attorneys in these cases haven't mentioned, leave an electronic comment somewhere. If Thomas's attorney had known of the precedent against the problematic jury instruction, the case wouldn't be like it is now.


Lior said...

I think some people got my comment wrong: certainly the original jury instruction was a manifest error of law, justifying a new trial. I think the judge got it right the second time around.

Finally, I'm sure this appeal will be thrown back: the judge got it right, and even if he didn't the standard for reversal is probably pretty high.

That said, there's a principle that you get to appeal once. Even though the RIAA are abusing the judicial process, our response should be to stand up for the correct process. I thus stand by my comment: for motions granting a new trial, the side that won the first trial should get to appeal before the new trial starts, and not after.