Wednesday, June 17, 2009

Final Charge Conference in Capitol v. Thomas-Rasset

The final charge conferece was relatively uneventful, simply wrapping up matteres for the jury instructions and special verdict form. The only substantial objection different from the previous conference this morning was that plaintiffs asked for some changes in the language of the instruction brought about by yesterdays blow up over Dr. Jacobson's new testimony about an external hard drive.

The agreed upon instruction was:

You heard testimony from Plaintiffs' expert, Dr. Jacobson, that there was
evidence of an external hard drive connected to the computer that he examined.
You are instructed that there is no basis for the testimony regarding the
external hard drive and that you should disregard this testimony and all
evidence referred to in connection with the testimony about the external hard

Plaintiffs asked based on Thomas-Rasset today breifly stating, before the testimony being stricken that plaintiffs offered a witness who provided false testimony. The proposed addition was to make it clear that this testimony was not to be used by the jury and (paraphrasing) that there is no basis for the allegation that a witness offered false testimony. Defendants objected to this change, and the statement as originally agreed upon will be read to the jury.

Some minor changes were proposed and agreed upon by both parties as to the special verdict form, which will be finalized soon and be available along with the final jury instructions later today or tonight on ECF to both counsel and the public.

The court will meet with counsel briefly tomorrow morning at 8:30am. Closing arguments will begin with the defense at 9am and be followed by the plaintiff, with no rebuttal. Both parties thought their testimony would be about one half hour, possibly a bit longer. Both parties were granted a limit of one hour for closing. Judge Davis would like to have the jury charged with instructions before the lunch break.

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


Anonymous said...

Why do Plaintiffs get to go last with no rebuttal? Hardly seems fair or right.

{The Common Man Speaking}

DTS said...

I might be mistaken on a few issues here, but wasn't the retrial called for on the grounds that Judge Davis withdrew the whole thing about "making available, even without clear evidence proving occurrence, is a crime"? As far as I see it the plaintiffs still haven't proven anything except MediaSentry got a copy of the songs in question, which was authorised by the RIAA anyway. One hopes that Mr. Camara brings this up in the defence's final statements.

Anonymous said...

What exactly is the current jury instruction on distribution/making available?

Anonymous said...

Any idea why the defense's expert witness did not testify / disappeared? Guess we'll find out when the trial's over.

raybeckerman said...

No, and we probably will never know why he was not called.

But I assume it was because they'd concluded they were winning, without needing to open up the technical issues.

Anonymous said...

Responding to DTS and Anonymous re: actual distribution to the public vs. making available, that info can now be seen in the jury instructions and special verdict form PDFs made available in subsequent postings here.

In short, the jury was instructed to find the owners' copyrights infringed provided the ownership claims were valid and provided there was an infringement of either the reproduction right (via Jammie "downloading copyrighted sound recordings on a peer-to-peer network, without license from the copyright owners") or the distribution right (via Jammie "distributing copyrighted sound recordings to other users on a peer-to-peer network, without license from the copyright owners"). For each song reproduced or distributed, the infringement had to be assessed as willful or non-willful, and damages assessed accordingly. The jury was not allowed to be specific about which rights (distribution or reproduction) were infringed!

Given that metadata embedded in the MP3s gave the plaintiffs the opportunity to contend that the files probably weren't ripped from her own CDs and instead were probably downloaded via the peer-to-peer network without authorization, and given Jammie's own statements saying the files weren't hers, it's possible the distribution issue may have been entirely sidestepped. That is, if the jury first found that she infringed the reproduction right (and it's my guess that they did), then they wouldn't really have to care whether the distribution right was also violated. Maybe they did go ahead and consider both rights, but we may never know what exactly the jury discussed and what findings they made regarding either one. We only know they found the copyright ownership claims to be valid, and they found Jammie willfully infringed one or both rights for all 24 songs, and they set the damage amount at $80K per song.

Media outlets are already variously reporting she was "found guilty"/"convicted" of "piracy"/"illegally downloading"/"illegally sharing" the songs. So far it appears only Wired and the AP are being a little more responsible with their characterization of the verdict as a just a jury finding that she willfully infringed copyrights, and awarding statutory damages accordingly.