Tuesday, June 02, 2009

RIAA makes numerous in limine motions in Capitol Records v. Thomas-Rasset

In Capitol Records v. Thomas-Rasset, the RIAA has made a number of in limine motions, among them:

-a motion to exclude defendant's expert witness from testifying;
-motions to preclude defendant from asserting 'fair use' or 'innocent infringement' as a defense, and
-a motion to preclude defendant from referring to other cases.

Among the additional pretrial documents filed yesterday:

Blanchfield affidavit in support of defendant's motion to suppress MediaSentry material
Defendant's statement of case
Plaintiffs' exhibit list
Plaintiffs' in limine motion to exclude Prof. Kim
Stipulation of uncontested facts
Plaintiffs' in limine motion to preclude fair use defense
Plaintiffs' in limine motion to preclude innocent infringement defense
Plaintiffs' in limine motion to exclude evidence of other lawsuits

[Ed. note. The things I find most interesting are (a) the motion to exclude Prof. Kim, which is about as frivolous as a motion can get, (b) the motion to preclude testimony about the RIAA's other cases, since at the first trial the RIAA itself introduced such evidence, (c) defendant's omission to have made an in limine motion excluding Dr. Jacobson's testimony, (d) defendant's omission to have included any grounds other than illegality in connection with the in limine motion to exclude MediaSentry's testimony, and (e) plaintiffs' having based several of their motions on press clippings. -R.B.]

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...


Eric said...

Normally evidence outside the scope of the issues to be litigates should be prevented, but not when it show a clear patten that bears on the case.

I don't understand why Dr Kim would be prevented. The RIAA's motion is absurd on it's face since isn't it always the defenses prerogative to offer alternate explanations of the "evidence" to the jury!? Dr Kim's expert testimony would clearly fall into that category.

RIAA better be very careful attacking the defendant with daubert as it can easily be used on MS evidence as well. If attacked their entire litigation strategy could come falling down because no reasonable expert should stand behind this black box "evidence".

raybeckerman said...

"can" be used?

It certainly can, and probably will, be used.

The MediaSentry evidence and the Jacobson is flagrantly inadmissible under Daubert.

Eric said...

Evidence #6 "Screenshots of defendants shared folder"


How do they manage to screw these things up that badly. This is clearly a screenshot of the plaintiffs/MS computer after searching on the username that is in theory linked to defendant. It is most defiantly *NOT* a screenshot of the defendant's computer's shared folder.

Either the evidence should be thrown out and rule 11 sanctions applied ... or.. the defendant should use them to their advantage. I think the jury might be interested in the status bar text "Not sharing any files"


Alter_Fritz said...

Yes Ray, I was wondering too about this "no other cases mentioning, please!"-thingy this time.

Does it mean THIS time RIAA-Gary, RIAA-Mitch the misspeaking Miss Pariser and co. will not testify how allegedly bad all those p2p combined is for them?

Will we only hear about 24 songs and how that would have damaged the rightsowners of those 24 x 99ct iTunes license fee in case defendant actually did not acquired licenses for those songs legally?

Now what a boring trial will this be then! *sarcasm*

raybeckerman said...

Yes, A_F, can you imagine how that would be for the RIAA? They would not be able to mention how other people have probably committed copyright infringement, therefore the defendant should be punished for that?

I fully expect Judge Davis to preclude BOTH sides from referring to anything outside THIS CASE.

Nohwhere Man said...

I usually have trouble reading the RIAA's briefs, so I didn't finish the Dr Kim one, however... isn't the point of using an qualified expert to testify on things that could happen, not just about the uncontested facts of the case? Part of being an expert is the ability to offer such an opinion.

Anonymous said...

Are you ever going to make your blog non-insulting to the eyeballs? Some aesthetics please...

Anonymous said...

Nohwhere Man:

As you say. If the RIAA expert is making false claims, Defendant's expert witness can and should point those out. In that event, the RIAA's expert witness would have little credibility.

My summary:

RIAA expert: "X is impossible."
Defendant expert: "X is possible."
RIAA expert: "X didn't happen."
Defendant expert: "You claimed it was impossible, and now you're only claiming it didn't happen ... sounds like you were just wrong and now wanna cover it up. Are you really an expert?"


Anonymous said...

Dr. Kim does not offer a single probability, only theoretical possibilities for which there is no evidence

Hm... interesting. I can fix that for you:

[The RIAA] does not offer a single probability [of distribution/copying], only theoretical possibilities for which there is no evidence.