tag:blogger.com,1999:blog-15479871.post5466450312035133704..comments2024-03-22T03:28:24.897-04:00Comments on Recording Industry vs The People: Judge in Capitol v. Thomas says "manifest error of law" may have been committed by incorrect "making available" instructionraybeckermanhttp://www.blogger.com/profile/11063235302436280455noreply@blogger.comBlogger25125tag:blogger.com,1999:blog-15479871.post-28277666243534353812008-05-17T04:46:00.000-04:002008-05-17T04:46:00.000-04:00Ray wrote:"Yesterday was a good day. "Indeed it wa...Ray wrote:<BR/>"Yesterday was a good day. "<BR/><BR/>Indeed it was. <BR/>Even a certain judge in a certain court in a certain "apple" acted as one got already used to expect that he would act.<BR/><BR/>As the german singer Peter Maffay sung on one of his Tabaluga story for kids songs:<BR/><BR/>"Danke für das Böse, das das Gute gut sein lässt"<BR/><BR/>http://en.wikipedia.org/wiki/Tabaluga<BR/>http://en.wikipedia.org/wiki/Peter_Maffay<BR/><BR/>"The First studio album "Tabaluga or the journey to reason." (1983) was the step to success:"" Maybe "a certain judge in a certain fruit" should start that journey too?!<BR/><BR/>And again an extra serious THANK YOU to judge Davis for the fact that he already took that journey and acts reasonably as a judge!Alter_Fritzhttps://www.blogger.com/profile/10861406779872744163noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-63507864778327608982008-05-17T00:15:00.000-04:002008-05-17T00:15:00.000-04:00Yesterday was a good day. A $108k attorneys fee aw...Yesterday was a good day. <BR/><BR/>A $108k attorneys fee award against the RIAA being handed down; the judge indicating the RIAA's big jury verdict is about to become history; the judge indicating in essence that the reason it's about to become history is that the RIAA lawyers misled him on the law. <BR/><BR/>Are the chickens coming home to roost?raybeckermanhttps://www.blogger.com/profile/11063235302436280455noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-50536969383113118992008-05-17T00:12:00.000-04:002008-05-17T00:12:00.000-04:00Wouldn't that be funny, if in a series of litigati...Wouldn't that be funny, if in a series of litigations in which the RIAA are the plaintiffs the only large judgments were <I>against</I> the RIAA?raybeckermanhttps://www.blogger.com/profile/11063235302436280455noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-60319388522571475252008-05-17T00:09:00.000-04:002008-05-17T00:09:00.000-04:00No doubt Mr. Gabriel will be desperately trying to...No doubt Mr. Gabriel will be desperately trying to settle the case at this point, before the Judge goes ballistic on July 1st over:<BR/><BR/>1. the fact that Mr. Gabriel violated his obligation to bring contrary controlling authority to the Judge's attention, and<BR/><BR/>2. failed to advise the Court that one of the primary authorities he had been relying upon had been <B>vacated a week before the trial</B>.<BR/><BR/>Also the RIAA will be desperate to settle the case because this $222k jury verdict is worth millions to them in its intimidation value; if it gets thrown out, they will be up the creek, and the only big numbers we have left will be the <B>$108,000</B> attorneys fee award <B>against the RIAA</B> in Andersen, and the <B>$68,685</B> attorneys fee award in Foster.<BR/><BR/>Indeed I am not surprised to learn that Mr.Toder and his "stand up" buddy are "talking".raybeckermanhttps://www.blogger.com/profile/11063235302436280455noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-48962705002533532552008-05-17T00:03:00.000-04:002008-05-17T00:03:00.000-04:00I don't know what basis you have for saying that h...I don't know what basis you have for saying that he was unaware of it.raybeckermanhttps://www.blogger.com/profile/11063235302436280455noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-51346404838290449562008-05-16T18:00:00.000-04:002008-05-16T18:00:00.000-04:00Well Jammie Thomas's lawyer wasn't aware of it. If...Well Jammie Thomas's lawyer wasn't aware of it. If he was and failed to bring it to the attention of the court, he violated his fiduciary duty to his client.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-28499933494994635182008-05-16T17:40:00.000-04:002008-05-16T17:40:00.000-04:00Just saw that an Associated Press story quoting Br...Just saw that an Associated Press story quoting Brian Toder as saying "he's in talks with the record companies to settle the case."Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-5016947106883921642008-05-16T16:11:00.000-04:002008-05-16T16:11:00.000-04:00We have been citing the National Car Rental case f...We have been citing the National Car Rental case for years, since 2005 when the RIAA first started defending its "making available" language. See the memoranda of law in, e.g., Elektra v. Barker, Maverick v. Goldshteyn, Loud v. Does, Motown v. Does, Warner v. Does, Warner v. Cassin. Additionally, other firms representing defendants have been citing it as well in such cases as Arista v. Greubel, Interscope v Duty, etc.<BR/><BR/>There is no reason to think that <B>any lawyer</B> in the Capitol v. Thomas case was unaware of it.raybeckermanhttps://www.blogger.com/profile/11063235302436280455noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-2670861266272530242008-05-16T12:03:00.000-04:002008-05-16T12:03:00.000-04:00Now that's interesting if it is not just again one...Now that's interesting if it is not just again one of those misspoke thingies or the author misquoted the still national lead counsel Mr. Gabriel!<BR/><BR/> <BR/>Tom Corelis at above mentioned Daily Tech link wrote:<BR/><BR/>With precedent quickly shifting away from the content industry’s favor, the RIAA doesn’t seem fazed: “If we have to retry the case, we’ll do so without hesitation,” said RIAA attorney Richard Gabriel. Record companies can still prove that Thomas violated copyright, <B>because files found on her computer have the same signatures as known pirated recordings</B> – files that Thomas claims were copied from CDs. Beyond that, says Gabriel, evidence that investigators working for the RIAA were able to download music from her computer is more than sufficient to win a second trial. <BR/>(emphasis added)<BR/><BR/>Now If I remember correctly Plaintiffs counsel claimed at trial that defendant had switched the harddrives and that because of that they could not find evidence on the new one to support MediaSentry's claim.<BR/>And now out of a sudden there were songs on the new disk that were allegedly "stolen" after all?<BR/><BR/>Did Mr. Gabriel lied again?<BR/><BR/>(Note that I will not comment here about the fact why files that they claim to have found "have the same signatures as known pirated recordings" And why that means noting at all. The plaintiffs like to point out this "perfect digital copy"-mantra. That of course applies to the source CDs for those hdd copies too!)Alter_Fritzhttps://www.blogger.com/profile/10861406779872744163noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-52623972075249619702008-05-16T11:10:00.000-04:002008-05-16T11:10:00.000-04:00I take it that your office was unaware of the Nati...I take it that your office was unaware of the National Car Rental case (how could everyone have missed this?). I don't ask as a criticism, but only as a clarification.<BR/><BR/>carla60626Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-883676471550978492008-05-16T09:11:00.000-04:002008-05-16T09:11:00.000-04:00I applaud Judge Davis for the honesty and integrit...I applaud Judge Davis for the honesty and integrity he has shown in calling this into question sua sponte. I hope that Jammie has the resources to file the brief (hint, hint, Jammie Thomas legal fund...). I await with pleasure the RIAA's response on this one.<BR/><BR/>Regards,<BR/>ArtAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-57658942890327199932008-05-15T19:51:00.000-04:002008-05-15T19:51:00.000-04:00As I said above:He and his staff probably came acr...As I said above:<BR/><BR/><I>He and his staff probably came across Atlantic v. Howell while doing research to decide the remittitur motion.</I>raybeckermanhttps://www.blogger.com/profile/11063235302436280455noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-15752425342285777792008-05-15T19:42:00.000-04:002008-05-15T19:42:00.000-04:00Alter Fritz, While I understand the point you're t...Alter Fritz, While I understand the point you're trying to make, I really do think that most judges are so busy, and like most workers would like to leave the job at the office when they can, that they don't spend their copious free time thinking about, "Gee, what should I have done differently in all of my hundreds of past cases, and what sue sponte decisions might I throw out today just to stir the pot." I don't expect a judge on his own to just go back and suddenly reverse himself without a reason because I don't know why he'd even still be thinking about that case from months ago otherwise. Hence my comment.<BR/><BR/>-DMAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-42385737687926555542008-05-15T18:36:00.000-04:002008-05-15T18:36:00.000-04:00Dear Ray, as much as I don't like to argue with yo...Dear Ray, as much as I don't like to argue with you, especially on your own blog, please do allow me to point out that even a life-tenured federal judge has opportunities for upward advancement. Appeals courts and The Supreme Court lie above him, and a record of being often reversed by higher courts isn't the best resume to present at appointment or confirmation time for one of those.<BR/><BR/>-DMAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-35206923279564876752008-05-15T18:04:00.000-04:002008-05-15T18:04:00.000-04:00Ray --Every vacuum-cleaner salesman has been train...Ray --<BR/><BR/>Every vacuum-cleaner salesman has been trained to not take "no" for an answer until (s)he's been thrown out of the prospect's home. Until then, salesmen believe that the most outrageous behavior is OK.<BR/><BR/>This blog documents regular, repeated, outrageous misbehavior by the plaintiff's lawyers. Sure, they may get a tongue-lashing by the judge, but judging from the vacuum-cleaner salesmen I know, this is actually a badge of honor. Are those lawyers' bosses telling them that they haven't even tried unless they get scolded by the judge?<BR/><BR/>Is this the current state of American justice: lie, cheat, and say you're sorry <I>if</I> you get caught? Why are judges just scolding like little squirrels instead of punishing rule-breaking lawyers ("officers of the court") to dissuade illegal behavior? What about bar associations: just dens of mutually-supportive thieves?<BR/><BR/>I mean no disrespect to your profession, but this seems to come up time and again in this blog. What really worries me is that this RIAA business is a window into how the whole legal system works. Has it just turned into a self-perpetuating gladiator match that doesn't care about the very people the law is supposed to protect?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-494752356672147332008-05-15T17:08:00.000-04:002008-05-15T17:08:00.000-04:00DM askes"Why else would he revisit this case sue s...DM askes<BR/><BR/>"Why else would he revisit this case sue sponte?"<BR/><BR/>maybe simply because he is NOT like the Krichbaum's, Gabriel's, Moran's ect. and thinks that what is the law should be used as such.<BR/><BR/>you know DM, sometimes you find people that are willing to admit to and correct their own errors simply to clear their conscience, not because they try to CTA though.Alter_Fritzhttps://www.blogger.com/profile/10861406779872744163noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-12031526849751392512008-05-15T16:53:00.000-04:002008-05-15T16:53:00.000-04:00No, anonymous DM.This is a life-tenure federal jud...No, anonymous DM.<BR/><BR/>This is a life-tenure federal judge. He doesn't have to care about what anybody thinks of him.<BR/><BR/>He is doing it because it is the right thing. <BR/><BR/>He and his staff probably came across Atlantic v. Howell while doing research to decide the remittitur motion.raybeckermanhttps://www.blogger.com/profile/11063235302436280455noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-33148241352656104212008-05-15T16:39:00.000-04:002008-05-15T16:39:00.000-04:00Is this a CYA by the judge to mitigate the effects...Is this a CYA by the judge to mitigate the effects of a reversal on his career record now that the case is on appeal over this point? Why else would he revisit this case sue sponte?<BR/><BR/>And to Friend of this Blog: It seems that RICO charges are being dropped as not likely to be sustainable.<BR/><BR/>-DMAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-44999325057555958902008-05-15T16:09:00.000-04:002008-05-15T16:09:00.000-04:00Just when I thought the Andersen costs & fees reco...Just when I thought the Andersen costs & fees recommendation would be the best news of the day!<BR/><BR/>Best wishes to Ms. Thomas! Let's hope July 1st puts the "making available" theory of liability to rest for good.<BR/><BR/>Also, props are in order for Judge Davis catching his error sua sponte. I wonder if perhaps this very blog played a role in that.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-56549174508521789462008-05-15T14:51:00.000-04:002008-05-15T14:51:00.000-04:00Between this order from Minnesota and the Tanya An...Between this order from Minnesota and the Tanya Andersen attorney fee opinion in Oregon and what is developing with MediaSentry being unlicensed, the bottom cards are being removed one by one and the RIAA house of cards is about to fall. <BR/><BR/>Unfortunately there are a lot of students and their families being extorted and intimidated even now into paying $7500 without knowledge or resources to defend.<BR/><BR/>Once the house of cards has fallen completely, someone has to get these people refunds of these $3000 to 7500 settlements which were fraudulently obtained. <BR/><BR/>Maybe that RICO case in Oregon or Washington can be the vehicle.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-90367181625370773002008-05-15T14:23:00.000-04:002008-05-15T14:23:00.000-04:00This is good news. Hopefully it turns out differen...This is good news. Hopefully it turns out differently this time. <BR/><BR/>Also, out of curiosity, will you be filing an amicus brief, Ray?Johnhttps://www.blogger.com/profile/03660081278605245805noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-36394825797942960692008-05-15T14:07:00.001-04:002008-05-15T14:07:00.001-04:00"[...]he same date that Mr. Gabriel starts his new..."[...]he same date that Mr. Gabriel starts his new job as a state court judge in Colorado[...]"<BR/><BR/>Technical Question:<BR/>Can the governeur/senator/who ever gave this new job to "Rich" still change his mind and say: "Sorry Rich we weren't aware what kind of bad guy you were when we offered you this Job, we changed our mind: fly back into the vultures nest at HR&O from where you came. We actually prefer a honest guy with integrity over you!"?Alter_Fritzhttps://www.blogger.com/profile/10861406779872744163noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-67044107975325740772008-05-15T14:07:00.000-04:002008-05-15T14:07:00.000-04:00Assuming for the moment that the judge reverses, w...Assuming for the moment that the judge reverses, will the RIAA be obligated to notify all the other courts where they have cited this case?<BR/><BR/>Kip PattersonAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-69932207364317350992008-05-15T13:56:00.000-04:002008-05-15T13:56:00.000-04:00Well, It is a good sign that the court more or les...Well, It is a good sign that the court more or less openly admits that it made an error, isn't it?<BR/><BR/>That lets the judgement and the effect of the jury verdict -which made the US law system a worldwide laughingstock- shine in a more resonable light!<BR/><BR/>I guess EFF are the guys that the judge had in mind when he talked about "friends of the court".Alter_Fritzhttps://www.blogger.com/profile/10861406779872744163noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-13744453431120017062008-05-15T13:46:00.000-04:002008-05-15T13:46:00.000-04:00That sound you here is the giant sigh of relief co...That sound you here is the giant sigh of relief coming from Ms. Thomas. Hopefully, this is the first step in getting a brave woman a night of worry-free sleep.Unknownhttps://www.blogger.com/profile/03959110972288433461noreply@blogger.com