RIAA Scrambles to Un-lose Jammie Thomas Appeal
November 12th, 2008 Filed Under Lawsuits, Music Business, Other Commentary
You have to give the RIAA credit for this. They’re nothing if not consistent. Unfortunately for the people of the United States that means they’re still trying to weasel out of arguing the merits of their cases in court.
You may remember Jammie Thomas; the only defendant whose file sharing (copyright violation) case has actually gone before a jury. Last year the RIAA won their lawsuit against Thomas, who admitted to sharing files, in what was initially a major victory for their argument that simply making files available for download constitutes violation of copyright.
However, on appeal the judge determined that his instructions to the jury in agreement with this position was in error and granted a new trial. This isn’t the first time, or in fact the second or even third, that a judge has reached this conclusion. In fact it’s the standard reading of the Coypright Act that’s been affirmed in case after case.
This poses big problems for the entire framework of the RIAA’s cases. It means they can only claim damages for those files their investigators actually download. If they want damages for a thousand songs it will require a thousand downloads.
In a move that shocks, well pretty much no one, they’ve decided to appeal the decision to grant a new trial. Nobody, most likely including the RIAA lawyers, expects them to win this appeal. In fact it is most likely intended for two purposes, both of which are deserving of a reprimand from the judge at best, and there are many who believe court sanctions would be more appropriate.
The history of these lawsuits shows a clear pattern; besides that of defendants caving in to RIAA demands of course. When defendants go to court and raise legitimate legal questions about either the facts of the case or the legitimacy of the damages RIAA lawyers do their best to drag cases out and avoid arguing the merits of the case in front of a judge.
As usual this RIAA’s appeal is filled with misleading half truths in an attempt to mislead the court. In particular they claim that there’s dissent among the judiciary in previous court decisions which have held defendants liable for merely making copies of a work for unauthorized distribution. What their brief fails to mention, that the decision to grant Jammie Thomas a new case does, is that those defendants were being accused of secondary infringement. In other words they were basically being held responsible as accomplices to copyright infringement.
None of the file sharing lawsuits have anything to do with secondary infringement. Jammie Thomas isn’t being accused of participating in a third party’s unauthorized distribution, which is the issue in each of their supposedly relevant cases. The RIAA is claiming she personally infringed on them. Since they only cite cases where secondary infringement is alleged it’s only reasonable to assume that’s all they can find.
Now for the good news and the problem for the RIAA. There’s absolutely no chance of Jammie Thomas just dropping it. You see unlike your typical RIAA defendant she has nothing to lose by pursuing her case in court and nothing to gain by caving in. She’s already taken the big gamble and lost as big as you can lose. If she doesn’t fight it she owes them more money than she can possiblly pay.
On the other hand the RIAA has now backed themselves into a corner. If they have to argue the case again without their “making available” argument they konw the focus will shift to issues they’ve never had to argue in court. Primarily it will focus on the constitutionality of damage awards that are so high as to be constitutionally questionable.
And it gets better. The labels themselves have argued the opposite side of this point successfully in the past and their only affirmative argument in this case is the minimum amount specified in the law. Although their lawyers are quick to point out that this is different because it’s not based on a calculation of actual damage, there’s no reason to believe the US Constitution makes any such distinction and that’s where the issue lies.
The issue that’s now being raised by a brief filed by Jammie Thomas’ lawyer is that granting an appeal right now would give the RIAA an extra appeal to which they’re not entitled. And why should we care about that? To begin with it means yet another delay in deciding the case; something the RIAA has a history of. Besides the additional cost to this particular case, it also means more delay in getting decisions on the legitimate issues.
At one time there may have been an argument to be made that the RIAA should be given the benefit of the doubt that their appeal is genuine. But that was before their pattern of dragging out cases for years before ultimately dropping them immediately before these serious questions would have been answered by the court. Now we don’t have to assume their intentions. They’ve shown them clearly enough. It’s time to hold them responsible for this history of bad faith courtroom dishonesty and put it in the hands of a judge.
Beckerman tells laywers to go on the offensive
August 13th, 2008 Filed Under Lawsuits, Music Business, Other Commentary
With RIAA lawyers reeling from one setback after another in their campaign of P2P copyright infringement cases it only makes sense that defense lawyers would want to go on the offensive right now. And in fact that’s just what noted defense attorney Ray Beckerman is suggesting on his blog.
Besides the general tip to “take MediaSentry’s deposition, and find out where the truth lies,” he also gives some examples of the way RIAA lawyers have built their cases. It shouldn’t surprise anyone who’s been paying attention in the last few months that what the Plaintiffs represent as an air-tight case is really just a house of cards waiting for a stiff breeze to knock it down.
Readhing through the briefs Mr. Beckerman links to that becomes quite clear. In one brief they call MediaSentry investigators and play up their part in putting the case together. In another they downplay the agency’s role, comparing them to private citizens at a library. Ironically these were both filed at around the same time, and in the same case.
The big problem with the argument that MediaSentry is just using publically available information is that it doesn’t actually answer the question of whether it requires licensing or not. What MediaSentry does is a commercial enterprise where they dig for information on people. Just because information can be gathered without bugging your house or tapping your phone doesn’t mean anything. What matters is your intent and that capacity in which you’re gathering information.
According to one RIAA brief a New York Attorney General actually agreed with their position. Unfortunately for them that was nearly 100 years ago and the law has changed significantly since then. Just being in the employ of an attorney doesn’t mean you can also be a private investigator without a license.
How about contributory oppression?
August 8th, 2008 Filed Under Music Business, Other Commentary
One of the rallying cries of the RIAA is responsibility for the supposed economic effects of P2P file sharing. Even though their claims that file sharing robs artists everywhere is laughable, it’s still worth considering the general point about looking at the unintended consequences of your actions.
In that spirit I submit for your consideration the RIAA’s jihad against consumers. Rather than concentrating on the standard issues of how defendants are bullied into settling lawsuits based on evidence that’s flimsy at best and illegally collected at worst, let’s consider what side effects their legal campaign may have. We’ll concentrate on what it means to the people of China.
The Internet’s growing influence on Chinese culture is at odds with the government’s hard line position on freedom of information. While they realize the internet is an essential tool for reaching their economic goals in both the short and long term, Chinese officials fear its inherent openness, and have gone to extraordinary lengths to restrict its use.
From re-education camps for those supposedly afflicted with internet addiction to the Great Firewall of China, the government clearly understands the fundamental role of information in freedom. They’re doing everything they can to control the information available to and from their citizenry, and no one is more helpful to their cause than the RIAA.
Let’s go a step further and assume that we can truly trust the RIAA not to abuse our personal information gathered in the process of identifying P2P copyright infringers. We’ll even stipulate that our benevolent ISPs would never do anything unsavory with data collected in the course of inspecting all traffic that crosses their networks. Even in this fantasy land there’s no reason to trust the Chinese government with the same technology.
There should be no doubt in anyone’s mind that the reason China is in favor of the sort of packet inspection software the RIAA would like all ISPs to use. The same technology that would allow copyrighted works to be recognized could also any other content the Chinese government deems dangerous. Whether it’s video of government workers beating an ordinary citizen to death or simply a Western movie that espouses the sort of freedom the Chinese people are denied it could be recognized and effectively kept from the people.
If it’s fair for hold P2P companies responsible for contributary infringement by users of their networks, what’s the appropriate punishment for developing software that will be used to oppress literally billions of people?
Another body blow for the RIAA in Michigan
August 6th, 2008 Filed Under Copyright, Lawsuits, Legislation and Regulation, Music Business, Other Commentary
After winning their first ever jury verdict in a file sharing case last year you would expect the RIAA to be riding high on their success right now. But the reality is their victory against Jammie Thomas in Minnesota may be the last one they get in their campaign of lawsuits for P2P file sharing.
Specifically they have two basic problems. The first is the willingness of defendants to fight back. Rather than simply paying the RIAA whatever they ask for to settle, people are insisting on their day in court. As a result the government has started catching up to the RIAA’s tactics, and the more questions that get asked the worse the answers sound.
Perhaps the biggest Achilles heel that’s come to light is MediaSentry. The RIAA pays MediaSentry to provide information which can be used to get subpoenas and eventually identify defendants for lawsuits. The problem is nobody but MediaSentry and the RIAA knows exactly how this is done.
MediaSentry has so far managed to operate without any regulation or government oversight, while also not being required to divulge their investigatory techniques in court. That looks increasingly like it’s going to be changing. The latest assault is coming from Michigan Central University.
University attorneys are asking the state’s Department of Labor & Economic Growth to issue a Cease and Desist Order, requiring MediaSentry to become licensed private investigators before pursuing any further action in Michigan. You can be sure MediaSentry and the RIAA will fight the request, but that may not be a bad thing.
After all its hard to imagine anything more dangerous to the RIAA’s cases than forcing their agents into the bright light of due process.
