Judge In Jammie Thomas Trial Seems Likely To Declare A Mistrial

from the appeals-on-the-way dept

In the ongoing saga of the Jammie Thomas trial, where the RIAA tried to get its first serious victory in court against an alleged file sharer, things may be looking a bit grim for the RIAA's argument. While it initially gloated after winning the case, the judge later admitted that he may have made a "manifest error of law" in saying that the RIAA did not need to prove actual infringement -- but that showing Thomas had "made available" content was good enough. While both the MPAA and the RIAA tried to explain why actual proof of infringement shouldn't be necessary because it's just too difficult (the gist of their arguments), it appears that the judge is not at all persuaded by their arguments and seems quite likely to declare a mistrial.

In the hearing today, the RIAA's lawyer basically argued the same point: that because it's too difficult to obtain evidence, evidence shouldn't be necessary. The judge responded by pointing out that if Congress really intended for that to be the case, then it would have written the law to make it clear that "making available" was infringement. Since it did not, it seemed likely that Congress did not intend for the law to be read as the RIAA wants it to be read (have no fear, of course, because as we speak you can rest assured that RIAA/MPAA lobbyists are working to get the law changed on this point).

Of course, whoever loses this ruling will appeal, this case is far from over. It will go through a series of appeals to determine whether or not the whole "making available" aspect is distribution, and then even after that's settled there are numerous other points that Thomas is likely to appeal (assuming the case is still going). What I don't understand is why Thomas and her lawyer haven't also appealed over the fact that the RIAA later admitted that a key witness lied on the stand concerning a key point over the legality of making personal copies of music you bought. That would seem to also be an important point.


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  1.  
    identicon
    Norm, Aug 4th, 2008 @ 5:21pm

    Congress' Intentions?

    "The judge responded by pointing out that if Congress really intended for that to be the case, then it would have written the law to make it clear that 'making available' was infringement. Since it did not, it seemed likely that Congress did not intend for the law to be read as the RIAA wants it to be read..."

    [pessimist]
    Does anyone here actually think that Congress knew what they intended on the "Making Available" point?
    [/pessimist]

     

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  2.  
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    Mike (profile), Aug 4th, 2008 @ 5:29pm

    Re: Congress' Intentions?

    Does anyone here actually think that Congress knew what they intended on the "Making Available" point?

    I think the point is that Congress has had many chances to amend the law on that point, and have not.

     

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  3.  
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    Voice of Reason, Aug 4th, 2008 @ 5:52pm

    Making available

    If a drug dealer is caught with drugs on him, he is nailed for "making available", right?

    If a gun trafficker is caught with illegal guns on him, he is nailed for "making available" also.

    So what's the difference with music & movies then? The same intent is still there with shared folder full of content available to all and sundry over the internet. Why the hell can't Jammie also be nailed for "making available"??!

    Seems eminently sensible to me.

     

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  4.  
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    Willton, Aug 4th, 2008 @ 5:55pm

    Re: Re: Congress' Intentions?

    I think the point is that Congress has had many chances to amend the law on that point, and have not.

    The relevant statutory construction principle being expressio unius est exclusio alterius.

     

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  5.  
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    Willton, Aug 4th, 2008 @ 6:16pm

    Re: Making available

    If a drug dealer is caught with drugs on him, he is nailed for "making available", right?

    If a gun trafficker is caught with illegal guns on him, he is nailed for "making available" also.


    No, they are charged with "possession," not "making available." The two are not the same thing. So unless you can find "making available" within a relevant criminal statute, you're incorrect.

    So what's the difference with music & movies then? The same intent is still there with shared folder full of content available to all and sundry over the internet. Why the hell can't Jammie also be nailed for "making available"??!

    Because "making available" is not in the statute as copyright infringement. If it were, you'd be able to find it in the statute as such.

     

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  6.  
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    Eeqmcsq, Aug 4th, 2008 @ 6:32pm

    Re: Re: Making available

    Yep, and in addition, the closest equivalent of "making available" for guns/drugs is "possession with intent to sell or distribute". In this charge, the prosecutor has to prove the dealer had intent to sell or distribute the guns or drugs.

     

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  7.  
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    MLS, Aug 4th, 2008 @ 7:07pm

    There is a subtle distinction here that should not be overlooked before forming an opinion concerning "make available" issues. Section 106 speaks in terms of "distribution", but this term is nowhere defined in Section 101. Section 101 does define the term "publication" as comprising a "distribution", and does associate with it what might be termed a "making available" claim.

    Of course the above begs the question "How do the terms publication and distribution relate to one another in the context of Section 106?" The courts are struggling with the issue, as evidenced by decisions for and against the "making available" claim.

     

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  8.  
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    Voice of Reason, Aug 4th, 2008 @ 7:11pm

    That's interesting MLS; thankyou for clarifying this point.

    It sounds like the RIAA/MPAA/Big Media will be able to clarify this point to their mutual advantage - in the usual manner of purchasing key politicians to act as their sock puppets.

     

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  9.  
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    Voice of Reason, Aug 4th, 2008 @ 7:13pm

    Thanks Wilton. Perhaps the key difference here is that the media file that one owns are not illegal, while the drugs and guns being peddled, are illegal to own?

     

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  10.  
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    wasnt me!, Aug 4th, 2008 @ 7:24pm

    If a drug dealer is caught with drugs on him, he is nailed for "making available", right?

    for the drugs if you have more than 1 or maybe 2 ounces (not sure) its with intent to sell (or something like that)

     

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  11.  
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    wasnt me!, Aug 4th, 2008 @ 7:48pm

    it doesnt make sence!!

    the judge just said its not illegal to make available;le copyrighted material.

    so in this case Thomas added music to her shared folder the RIAA sued her and it was decided she didn't do anything wrong.

    But if a few days later some1 actually downloads music from her and then she gets sued she will be found guilty.

    in a case like that: Who ever is making music (or other files) available to others will be found guilty under circumstances that he or she has no control of.

    before telling me its not out of there control cause they put those files in the shared folder id like to remind you that it was decided there was no wrong doing by adding those files to the shared folder

     

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  12.  
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    $t3v3, Aug 4th, 2008 @ 8:24pm

    Re: Making available

    Where people also make the mistake is if the person purposefully made the content in question available. Most file sharing programs automatically start sharing the digital files. It is also very dificult or imposible to disable this process. The RIAA has to prove intent to distribute. and they can't discriminate by the amount or format of the media. If they do this every radio station in the country would be in violation. The have vast amounts of media and in every format. The only reason the stations would be exempt is that the recording industries operate under the assumption that every sound byte played is acquired legitamately, I know first hand that is not true.

     

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  13.  
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    zcat, Aug 4th, 2008 @ 11:49pm

    Is it really that hard to prove?

    The difference is pretty minor; rather than simply connect to a tracker and send a nastygram to every IP address that gets returned, all we're asking is that the MAFIAA make a p2p connection to each IP address and get one checksummable 'chunk' of data to prove that the IP address in question is actually a computer running file sharing software and sharing the file in question, and not (for example) a networked printer or some unfortunate granny who happened to get allocated an IP address that was being used by a file sharer half an hour earlier.

    It's not that much to ask, is it?

     

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  14.  
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    PaulT (profile), Aug 5th, 2008 @ 1:07am

    Re:

    The RIAA is trying to get the "making available" point stick because it's the only "evidence" they have. They have no other evidence than the fact that they managed to download files from a specific IP address, and since transmitting files to the copyright owner is not illegal, they have to prosecute on the assumption that other distribution may have taken place.

    The "making available" claims are important ones to consider as simply have a folder on your computer searchable and accessible by outside world is not the same publishing and distributing a physical object.

     

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  15.  
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    PaulT (profile), Aug 5th, 2008 @ 1:18am

    Re: Is it really that hard to prove?

    Actually, that's close to what they are doing but it's not enough. First of all, they don't know who the person is that's making the files available - they just have an IP address. That's why dead people and people who don't own a computer, and laser printers have been threatened - they don't have any evidence other than an easily spoofed IP, as you noted. It's also impossible for them to know, based on their evidence, whether the person they're suing is the person responsible for sharing the file.

    Then, you have the slightly tricky argument of "potential" crime. That is, if the RIAA download a chunk of data and confirm that it's infringing, they don't have any evidence as to whether a crime has been committed. Since they own the copyright, it's not illegal to transmit the data to them, so they have to assume that other people have downloaded the same file previously. That's impossible for them to prove based on the evidence they have, hence the fact that this case is so tricky.

    Also, there's the question of intent. Having a shared file on your computer is not the same as having drugs or stolen property. It's very possible for a novice computer user to download and install a file sharing program that shares their music, without any knowledge that that's what it will do. Just as people will happily install virii and spyware without a second thought, they will also share their hard drives without knowing it because a guy they know said to try using Limewire. Yes, ignorance is no excuse in the eyes of the law, but these are not hardened criminals who are being prosecuted.

     

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  16.  
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    Rekrul, Aug 5th, 2008 @ 5:07am

    Of course, none of this really matters. If I'm not mistaken, the ACTA treaty specifically names "making available" as being illegal. And if ACTA doesn't pass, you can bet there will be a bill before Congress within a month that specifically names "making available" as infringement. It'll probably be sponsored by Hollywood Howard Berman.

     

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  17.  
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    gatzke, Aug 5th, 2008 @ 6:53am

    Others "making available"

    This "making available" argument is nuts.

    Why not sue radio stations for making songs available? I spent hours of my youth recording songs off the air. These days, a patch cable and MP3 encoder would suffice.

    Why not sue libraries for making CDs available? I can go borrow what I want for free and make as many copies as I want at home, digital and otherwise.

    Until you show that person A downloaded a file from person B, I think this is a waste of time. Even then, it might be a waste of time if no money changed hands.

     

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  18.  
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    Anonymous Coward, Aug 5th, 2008 @ 7:08am

    Re: Re: Re: Making available

    BZZT!

    Wrong. They need to prove nothing. All they need is a specific quantity (can't remember off-hand what that is).

    Once that specific quantity is reached, it goes from just "possession" to "Possession with intent to sell" automatically. No questions asked, no further evidence required.

    Sharing more than a few songs in any specific folder is likely to be ruled in the same manner if this ever gets hammered down (which I doubt will ever happen).

     

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  19.  
    identicon
    Anonymous Coward, Aug 5th, 2008 @ 7:10am

    Re:

    That's where "possession" becomes a charge, whereas it cannot in the music sharing cases.

    The "intent to distribute" charge can be applied to both, however.

     

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  20.  
    identicon
    Anonymous Coward, Aug 5th, 2008 @ 7:13am

    Re: Others

    2 things:

    "Until you show that person A downloaded a file from person B, I think this is a waste of time."

    This only holds until you factor knowledge and intent. She *knew* what P2P was for, she'd written a college dissertation on Napster. She demonstrated both the computer knowledge and the knowledge of P2P to *know* beyond all doubt, that the songs in the shared folder were available to the public for download....and she *knew* it was infringement.

    "Even then, it might be a waste of time if no money changed hands."

    Agreed. The whole thing is a joke. Go after the folks making money on bootlegs, not mom&pop music fans.

     

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  21.  
    identicon
    wasnt me!, Aug 5th, 2008 @ 8:01am

    Re: Others "making available"

    if they have proper license to broadcast the music then they have nothing to worry about.

     

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  22.  
    identicon
    Anonymous Coward, Aug 5th, 2008 @ 11:26am

    Re: Making available

    A drug dealer is dealing in *illegal* drugs.

    A gun trafficker is dealing in *illegal* gunes.

    Sharing *legal* files in a shared folder is not distributing and should not be illegal, which is exactly what's being questioned here.

    The fact that you even compare illegal drug dealing and gun trafficking to sharing music files is simply quite amazing.

     

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  23.  
    identicon
    Anonymous Coward, Aug 5th, 2008 @ 10:50pm

    Re: Re: Is it really that hard to prove?

    "Actually, that's close to what they are doing but it's not enough."

    They send infringement notices to fscking Laser Printers. Clearly, they're just getting the IP addresses from the tracker and doing nothing at all beyond that. If they would take the effort to get one 'chunk' of data to prove that the IP address they saw was in fact sharing the file in question, that would be a _huge_ step forward from what they're doing now.

    To compare with the drug dealer analogy; right now they're arresting someone (person A) for drug dealing because someone the police talked to (person B) was told by someone else (person C) that the guy in question (person A) was a drug dealer. Without ever directly observing person A either carrying or dealing in drugs. And that's just not good enough.

     

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  24.  
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    Ray Beckerman (profile), Aug 6th, 2008 @ 6:29am

    Appeals

    Mike,

    In response to your question:

    1. No one can appeal from anything yet; there hasn't been a judgment entered. In federal practice you can't normally appeal until there's a judgment.

    2. A lie by a witness would not constitute grounds for an appeal. A subsequent admission by the witness that she lied on the stand might constitute grounds for a motion to set aside the verdict. Jennifer Pariser hasn't admitted that she lied, at least not as far as I am aware. It was Cary Sherman who said that Jennifer Pariser "misspoke". If I were a prosecutor in Minnesota I'd be investigating the matter.

     

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  25.  
    identicon
    Thomas Johnston, Aug 7th, 2008 @ 3:47am

    The concept of "burden of proof" is there to make it easier to defend than to prosecute. Laws, or worse, allowed "irregularities" in laws, than seek to lower the bar on burden of proof are ultimately erosive of all rights under the law. Congress should take care before listening to Hollywood that they are being asked to "aid justice" when in fact they are being asked to deprive defendants of their rights. Hollywood should understand that those rights served them well when a powerful senator stood up and said, "I have in my hand a list of...communists...". Different times, different issues, but burden of proof and presumption of innocence need to remain the same.

     

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  26.  
    identicon
    دردشه, Jul 11th, 2009 @ 9:50am

    They send infringement notices to fscking Laser Printers

     

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