tag:blogger.com,1999:blog-15479871.post6666659042120040719..comments2024-03-22T03:28:24.897-04:00Comments on Recording Industry vs The People: RIAA's $222,000 verdict in Capitol v. Thomas set aside. Judge rejects 'making available'; attacks excessive damages.raybeckermanhttp://www.blogger.com/profile/11063235302436280455noreply@blogger.comBlogger31125tag:blogger.com,1999:blog-15479871.post-18711764457949652762008-10-02T09:23:00.000-04:002008-10-02T09:23:00.000-04:00P.S. What about if they link to media reports of t...P.S. What about if they link to media reports of the original verdict?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-74806537978774633232008-10-02T09:22:00.000-04:002008-10-02T09:22:00.000-04:00Yes Ray I know it does not exist anymore, but will...Yes Ray <B>I</B> know it does not exist anymore, but will the RIAA drones in the "settlement centre", marketing or even their lawyers in court ACT LIKE they know?<BR/><BR/>I am also thinking about things like pre-existing web pages (although a Google does not find any), briefings to congressmen etc.<BR/><BR/>I am also thinking of phrases like "You might find yourself liable for we won a judgment of the order of $222,000 like the one we won against Ms Thomas, although that was set aside on a technicality." The "technicality" wording is one that I would say most people would assume meant it could happen at that level again.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-86910581963493053942008-09-26T09:33:00.000-04:002008-09-26T09:33:00.000-04:00The judge didn't mention that plaintiffs knew ther...The judge didn't mention that plaintiffs knew there was relevant case law against the "making available" rule before they used it in this case. I believe the judge knows that plaintiffs knew this, by now. Is the judge not upset? -dpAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-83583674495697848102008-09-26T09:27:00.000-04:002008-09-26T09:27:00.000-04:00"If downloads performed by MS may count as unautho..."If downloads performed by MS may count as unauthorized distribution and RIAA takes this approach in court, then how can they justify using evidence from the commission of a crime in court?"<BR/><BR/>MS can "validate unlawful conduct". See pages 10-11. When distributing a file to MS, if defendant played a "substantial enough role", whatever that means, the judge says she could be liable. This is a much higher standard than "she shared the file and MS downloaded it so she infringed our copyright".<BR/><BR/>XYZZYAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-33716249941446669572008-09-25T22:53:00.000-04:002008-09-25T22:53:00.000-04:00Has anyone else noted the total lack of media cove...Has anyone else noted the total lack of media coverage on the reversal of this decision? (As opposed to the first verdict)Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-10617910692522444632008-09-25T15:22:00.000-04:002008-09-25T15:22:00.000-04:00Wow, I was knocked off my feet after I read this r...Wow, I was knocked off my feet after I read this ruling. Good sound judgement. I also love the press this is getting. Wall Street Journal, AP, and several online newspaper sites have picked up on it. Could this be a just a preview of what's to come if the issues of "making available" and "excessive awards" reach the appellate level? I think the odds just went up in the defendants favor.skeeterhttps://www.blogger.com/profile/08739030303121169438noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-13231678736577694522008-09-25T14:41:00.000-04:002008-09-25T14:41:00.000-04:00Maybe someone smarter than me can explain the foll...Maybe someone smarter than me can explain the following:<BR/><BR/>If downloads performed by MS <B><I>may</I></B> count as unauthorized distribution and RIAA takes this approach in court, then how can they justify using evidence from the commission of a crime in court?<BR/><BR/>If they <B><I>must</I></B> discount MS's evidence because MS is authorized to download these files, then there is no violation of copyright, hence no lawsuit.<BR/><BR/>Can someone explain this?<BR/><BR/>Either way, it seems like they have gotten themselves into one fine pickle with this.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-35201337531676148752008-09-25T14:17:00.000-04:002008-09-25T14:17:00.000-04:00"I feel nearly as good after I read this, as how b...<I>"I feel nearly as good after I read this, as how bad I felt when the first trial ended.<BR/><BR/>It will be interesting to see RIAA's response and what they decide to do.<BR/><BR/>Steven<BR/>Link to this comment posted by Anonymous Anonymous"</I><BR/><BR/>I should think the answer to that would be obvious, file a vexatious litigant suit against the defendant!<BR/><BR/>But really, having deep pockets and a penchant for pulling on the fortune dispenser lever until they get the answer they want, one would expect the RIAA to appeal this precedent setting court decision, especially considering how many current cases have probably cited the old verdict as proof of the RIAA's position.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-8044010442790496632008-09-25T13:04:00.000-04:002008-09-25T13:04:00.000-04:00First, well-done Judge Davis.Second, my bias when ...First, well-done Judge Davis.<BR/><BR/>Second, my bias when balancing the virtues of copyright with the virtues of expanding our culture is decidedly pro-expansion.<BR/><BR/>But at the end of the day, absent some direct challenge, copyright content owners will eventually succeed in codifying a "making available" right. <BR/><BR/>They've already ensured that it's recognized in the US Sentencing Guidelines (see USSG §2B5.3, comment. (n.1)), convinced the California legislature (see Penal Code 653aa), imposed it in US trade agreements, and inserted it into international copyright treaties. <BR/><BR/>It's coming. Instead of engaging in the extraordinary legalistic and linguistic exercises to determine if the "making available" right already exists, why not address the issue head on? <BR/><BR/>There must be a member of Congress sympathetic to fair use who could propose a clean bill to amend Section 102 to include the "making available" right in order to tee up the issue. <BR/><BR/>That would be a debate worth having - and would crystallize the arguments before the weight of related statutes and obligations overwhelms any argument against codifying the right. Or before the issue is teed up via the prosecution of a "making available" crime (which would not be a good procedural posture to address the issue).dnballhttps://www.blogger.com/profile/16047805309362973936noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-15530965823023876452008-09-25T11:48:00.000-04:002008-09-25T11:48:00.000-04:00This man would expect, should this case go to a se...This man would expect, should this case go to a second trial, for the Defendant to assert the Innocent Infringer defense in an attempt to limit any damages to a maximum of $200 per actual song proven to have infringed any of the actual Plaintiff's copyrights in this trial. Even that is 200X or more damages. And any songs found that aren't the copyright of the actual Plaintiffs shouldn't even be considered.<BR/><BR/>That is provided that any infringement to anyone other than MediaSentry actually occurred. Remember that MediaSentry hunted down and downloaded songs that they were *paid* to find. Those may have been songs that no one else was actually looking for. To say that everybody else on the Internet was hunting for, finding on this Defendant's computer, and actually downloading these same songs from this Defendant simply defies common sense.<BR/><BR/>{The Common Man Speaking}Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-60962887100528493022008-09-25T11:14:00.000-04:002008-09-25T11:14:00.000-04:00I feel nearly as good after I read this, as how ba...I feel nearly as good after I read this, as how bad I felt when the first trial ended.<BR/><BR/>It will be interesting to see RIAA's response and what they decide to do.<BR/><BR/>StevenAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-86605276562140223952008-09-25T11:11:00.000-04:002008-09-25T11:11:00.000-04:00Three cheers or better for a Judge that had the gu...Three cheers or better for a Judge that had the gumption to stand up and admit his initial error in that wacky trial. I truly admire him for this!<BR/><BR/>And yet, one more good, solid nail in the RIAAs coffin.<BR/><BR/>RJAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-88043874816912135042008-09-25T10:55:00.000-04:002008-09-25T10:55:00.000-04:00There are other errors as well, such as ....1. fin...There are other errors as well, such as ....<BR/><BR/>1. finding the actual damages to be $54 when they are in fact $8 (70 cents per file wholesale revenue less ~35 cents per file expense = lost profit of ~35 cents per file)<BR/><BR/>2. overlooking need to prove, in addition to dissemination, "sale or other transfer of ownership or ... rental, lease, or lending".<BR/><BR/>No one's perfect.<BR/><BR/>But on balance... it was a landmark decision on the ludicrousness of the damages... and Judge Davis has shown himself to be the kind of judge our society can be proud of.raybeckermanhttps://www.blogger.com/profile/11063235302436280455noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-86117547499804004392008-09-25T10:44:00.000-04:002008-09-25T10:44:00.000-04:00There are two glaring errors in Judge Davis’s opin...There are two glaring errors in Judge Davis’s opinion:<BR/><BR/>First, where he said that “distribution to MediaSentry can form the basis of an infringement claim. Eighth Circuit precedent clearly approves of the use of investigators by copyright owners. While Thomas did not assist in the copying in the same manner as the retail defendant in Olan Mills – by actually completing the copying for the investigator – or as the retail defendants in RCA/Ariola – by assisting in selecting the correct tape on which to record and helping customers copy – she allegedly did assist in a different, but substantial manner. Plaintiffs presented evidence that Thomas, herself, provided the copyrighted works for copying and placed them on a network specifically designed for easy, unauthorized copying. These actions would constitute more substantial participation in the infringement than the actions of the defendants in the Eighth Circuit cases who merely assisted in copying works provided by the investigators.” <BR/>(Most unsophisticated P2P network users are not aware that they are sharing files, as RIAA testified before the FTC. At least Judge Davis said Thomas “allegedly” did assist. Furthermore, the Eighth Circuit did not hold that in the absence of knowing and active assistance by the person making copies available, the copyright owner’s own copying can be the actual copy element of a distribution.)<BR/><BR/>Second, where he said that “direct proof of actual dissemination is not required by the Copyright Act. Plaintiffs are free to employ circumstantial evidence to attempt to prove actual dissemination. Overall, it is apparent that implementation of Congress’s intent through a plain meaning interpretation of § 106(3) will not leave copyright holders without recourse when infringement occurs over a peer-to-peer network.” (Emphasis in original) <BR/><BR/>(The plaintiffs will now try to rely on the London-Sire v. Doe 1 et al. (D. Mass. 2008) novel and unprecedented “statistically reasonable inference that at least one copyrighted work was downloaded at least once” theory.)<BR/><BR/>Hopefully he will catch his errors and reverse himself again.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-21645233807322499232008-09-25T10:32:00.000-04:002008-09-25T10:32:00.000-04:00Kip:Haven't they done that before?Specifically cit...Kip:<BR/><BR/>Haven't they done that before?<BR/><BR/>Specifically citing <I>Atlantic v. Howell</I> after that verdict / summary judgment had been vacated and then denied.<BR/><BR/>I do not recall the exact cases, ISTR there were more than one.<BR/><BR/>--johnEAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-91034010917983979882008-09-25T10:24:00.000-04:002008-09-25T10:24:00.000-04:00Great news for Ms. Thomas. The fact that the judg...Great news for Ms. Thomas. The fact that the judge acted as he did is very refreshing.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-88937965535530414972008-09-25T10:12:00.000-04:002008-09-25T10:12:00.000-04:00Oh, I don't know. It might be interesting to see ...Oh, I don't know. It might be interesting to see them cite a vacated verdict.<BR/><BR/>Let's not discourage them too much.<BR/><BR/>KipAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-38811058352603171422008-09-25T09:57:00.000-04:002008-09-25T09:57:00.000-04:00trmcdougle, don't you get it? the verdict doesn't ...trmcdougle, don't you get it? the verdict doesn't exist anymore... it's been thrown out....<BR/><BR/>and the judge said in his decision that the amount of the verdict was ridiculous....raybeckermanhttps://www.blogger.com/profile/11063235302436280455noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-52046492326602630872008-09-25T08:30:00.000-04:002008-09-25T08:30:00.000-04:00Excellent news!!!Regards,ArtExcellent news!!!<BR/><BR/>Regards,<BR/>ArtAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-30746080057584120032008-09-25T07:54:00.000-04:002008-09-25T07:54:00.000-04:00Is it possible, practicable and sensible to get an...Is it possible, practicable and sensible to get an injunction aginst RIAA/Capitol etc. to stop them using the now set aside judgement or the $222000 or $9250 figures in any way suggesting that this is the nature/level of award a person might suffer for copyright infringement?<BR/>(Assuming they have been using it.)Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-62097058421527191142008-09-25T01:30:00.000-04:002008-09-25T01:30:00.000-04:00The last thing I think the RIAA wants is a loss. ...The last thing I think the RIAA wants is a loss. From their point of view, considering the limits the Judge has put in his decision, I clearly think the odds are much greater for a Not Liable verdict, then another win for the RIAA.<BR/><BR/>So wonder what will happen now? I do not think this will go to trial # 2, as there is too much risk for the RIAA. If the RIAA was to lose, Im sure they would see more people fighting and not agreeing to their settlement terms. Such a loss would be very bad for their other cases.<BR/><BR/>My guess is we will see some kind of stipulated dismissal filed, which will leave us no clue as to who actually won. The RIAA might even agree to pay her lawyer, as long as she keeps her mouth shut about it. My bet is the ending document will be unclear as to who won, so the RIAA could still imply that they won to others, even if in fact that is not in fact the truth.<BR/><BR/>I am glad the Chief Judge has admitted his error and is correcting it without a trip to an appeals court. That is a very fair thing for the Judge to do.<BR/><BR/>You are right Ray about the money too. The RIAA lawyers have made a lot here. The US taxpayers have not done as the lawyers. I say this because had they paid full price for each of the John Doe cases without Joinder, the monies paid to the Court system might even be close to the amount paid to those RIAA lawyers. (Which Im sure is exactly the reason they are NOT doing it this way!)<BR/><BR/>I often wonder about that Joinder order in Texas, does anyone know if the RIAA has ever filed any other joined cases in that district since the Order? It would seem that Ignoring that district would allow carte-blanche for any P2P users on SBC (AKA the New AT&T), since isnt that the district their home office is in???<BR/><BR/>AlbertAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-25613677491124090922008-09-25T00:37:00.000-04:002008-09-25T00:37:00.000-04:00microsofthater: I don't think there is any doubt a...microsofthater: I don't think there is any doubt about the basic facts. Ms. Thomas did have songs in her Kazaa shared folder, and it is likely that these songs were downloaded by the RIAA investigator. <BR/><BR/>At the end, the judges makes the point that even if what she did amounts to copyright infringement, the statutory damages are completely out of proportion to the actual damages.<BR/><BR/>It is interesting to note that the judge prices music by the cost of CDs rather by on iTunes. The error is only about a factor of 20.Liorhttps://www.blogger.com/profile/15563497907340566955noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-86956325219459706952008-09-24T23:48:00.000-04:002008-09-24T23:48:00.000-04:00microsofthater: I doubt the judge would mistake hi...microsofthater: I doubt the judge would mistake his own meaning. So in the current case, maybe the risk of confusion is small. <BR/><BR/>XYZZYAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-39471613867036973752008-09-24T23:22:00.000-04:002008-09-24T23:22:00.000-04:00One things that bothers me about the excerpt you p...One things that bothers me about the excerpt you printed. It presumes that she has actually done the things she is accused of ( with phrases like "defendent did not violate copyright for profit, she did it to..." --paraphrasing. ).<BR/><BR/><BR/>With the verdict set aside and a new trial ( presumably ) to begin, shouldn't the statement contain the standard "weasel words" like "she allegedly did it"?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-44072185195890780162008-09-24T22:58:00.000-04:002008-09-24T22:58:00.000-04:00On page 3, Judge Davis says this: "Finally, while ...On page 3, Judge Davis says this: "Finally, while the Court does not adopt the deemed‐disseminated theory based on Hotaling, it notes that direct proof of actual dissemination is not required by the Copyright Act. <B>Plaintiffs are free to employ circumstantial evidence to attempt to prove actual dissemination.</B> Overall, it is apparent that implementation of Congress’s intent through a plain meaning interpretation of § 106(3) will not leave copyright holders without recourse when infringement occurs over a peer‐to‐peer network"<BR/><BR/>It sounds like he's giving RIAA a hook to continue to pursue these if they can come up with some flimsy "evidence" that shows that there shoulda, coulda, woulda been a distribution... Is this true???<BR/><BR/>- Puzzled but NALAnonymousnoreply@blogger.com