Should RIAA Win Against Jammie Thomas Be Tossed After RIAA Admits It Misspoke On The Stand?

from the one-would-think... dept

Well, well, well. This morning when we pointed out that the RIAA’s responses to the whole Howell affair were rather lacking, we missed an important point. In the NPR debate between the RIAA’s Cary Sherman and the Washington Post’s Marc Fisher, while Sherman may have had the stronger case (this one time!), he did make one interesting statement that could have much wider implications. When pushed on the Howell case, rather than admitting he was wrong, Fisher moved on to a different situation: the infamously incorrect statements by Sony BMG exec Jennifer Pariser, who said on the stand, in response to a question about whether it was okay to make a personal backup copy from a CD, that saying so was “a nice way of saying, ‘steals just one copy.'” As we (and many others) pointed out at the time, this statement is blatantly false.

When Fisher brought it up, Sherman responded by saying:

“The Sony person who (Fisher) relies on actually misspoke in that trial. I know because I asked her after stories started appearing. It turns out that she had misheard the question. She thought that this was a question about illegal downloading when it was actually a question about ripping CDs. That is not the position of Sony BMG. That is not the position of that spokesperson. That is not the position of the industry.”

This actually is somewhat believable, as the industry does believe that downloading a single copy is the equivalent of “stealing just one copy,” (even if that’s questionable in itself). However, Sherman also claims “other reporters and bloggers had called about Pariser’s quotes and chose not to write about them after learning she had erred.”

It’s not clear who those other reporters and bloggers are, but it’s a bit surprising that they would then choose not to write about it. After all, it was a recording industry exec admitting she had made false statements under oath — and those false statements were part of the case that helped Jammie Thomas lose her lawsuit. That has folks like Ray Beckerman wondering if the RIAA had notified the judge that Pariser had misspoke. Considering that we never heard the judge tell the jury to ignore those statements, at the very least, it would appear that the jury was never told that Pariser misspoke — which certainly would suggest that Thomas has grounds to call into question that original ruling against her.

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Comments on “Should RIAA Win Against Jammie Thomas Be Tossed After RIAA Admits It Misspoke On The Stand?”

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80 Comments
Port Orchard Guy (profile) says:

Re: Misspoke?

I absolutely agree. For someone that knew or should have known exactly what the question being answered was and that degree of involvement there is no excuse for making such an error. This demonstrates once again the arrogant attitude of the industry and might I say the industry as a whole. Clearly a flippant attitude on the part of the Sony Exec (soon to be ex Exec?). Given the severity of the the punishment, and the clear application of the testimony to that decision, a mistrial is certainly in order and action against the Sony puppet warranted.

Anonymous Coward says:

Under Oath vs PR

I don’t believe for a minute that she “misheard” the question. If that was the case she should have told the judge the next day. She didn’t. These folks say one thing when they’re under oath and another when they’re spinning the press in interviews. Which is their true position? I believe what they say under oath in court a lot more than not under oath to the press. But some people (Mike/Techdirt) seem to fall for the “oh we didn’t really mean that” PR spin.

Allie says:

Jammie's SOL

Shouldn’t Jammie Thomas’ lawyer have raised their objections during the trial? Don’t get me wrong. I think the RIAA are a bunch of fat greedy pigs, but in this instance, on a technicality, the defendant (Thomas) might be SOL, due to her own attorney’s failure to protest the false information at the time it was presented as evidence in court.

Karen says:

Attorney Should Use this Info

to appeal, if possible. I doubt the attorney could have raised an objection during the trial since this “misspoke” excuse has come out after the trial. It would be interesting to see the whole testimony of Pariser. Did the defense attorney cross-examine? If so, did her question her assertion that copying a CD is “stealing.” If he did it would be impossible to believe she “misheard” and “misspoke.” I do not know if that would be grounds for overturning the conviction, but it sure could be grounds for a perjury charge against Pariser.

Sylvester says:

Not possible to object!!

To those who say it’s Thomas’ lawyers fault, I should point out that it isn’t possible to object to testimony on the basis that the witness must mean something different or must have misheard the question. The lawyer can’t read her mind and had to take her testimony at face value. Not only can defendant’s council not read the RIAA’s mind, the RIAA apparently can’t read its own mind and has had to revise its testimony post hoc–but only after they’ve rested their case in court and without any notice to the court or opposing council.

Scorpiaux says:

Excuses for Theft

This is what I have read from those who believe that the downloading of copyrighted music files without permission from the copyright owner and without paying for them should not be illegal.

1. The RIAA isn’t fair with the musicians, therefore it is OK to download copyrighted music files without paying for them.

2. Disney should not have the right to Mickey Mouse’s image for 95 years, therefore it is OK to download copyrighted music files without paying for them.

3. Musicians’ real rewards come from creating music, not from financial gain, therefore it is OK to download copyrighted music files without paying for them.

4. Music stores and other outlets charge too much, therefore it is OK to download copyrighted music files without paying for them.

5. Sharing music with friends by giving them copies should not be illegal, therefore it is OK to download copyrighted music files without paying for them.

6. No law is sacrosanct which means that laws against copyright infringement are not sacrosanct, therefore it is OK to download copyrighted music files without paying for them.

7. It takes virtually no effort or absolutely none at all for an artist to have copies made of his or her music, therefore it is OK to download copyrighted music files without paying for them.

8. No physical harm results from making unauthorized copies of music, therefore it is OK to download copyrighted music files without paying for them.

9. Congress has no business extending the periods for the retention of copyright ownership, therefore it is OK to download copyrighted music files without paying for them.

10. It really doesn’t matter if it is illegal or not, there is nothing immoral about it, therefore it is OK to download copyrighted music files without paying for them.

11. People break laws all the time, laws concerning highway speeds, laws concerning illegal possession of drugs and many other laws, and breaking those laws is worse than breaking copyright laws, therefore it is OK to download copyrighted music files without paying for them.

12. It is ridiculous to have to buy a CD with 20 songs on it when all that is wanted is one particular song, therefore it is OK to download copyrighted music files without paying for them.

13. Making copies surreptitiously without the consent and knowledge of the copyright holder hurts no one including the copyright holder, therefore it is OK to download copyrighted music files without paying for them.

14. Thomas Jefferson had serious doubts about awarding copyrights to creators, therefore it is OK to download copyrighted music files without paying for them.

15. Millions of people worldwide have already done it, therefore it is OK to download copyrighted music files without paying for them.

16. Laws and ethics taught in school won’t stop illegal downloads, only technology will and that technology has not yet arrived, therefore it is OK to download copyrighted music files without paying for them.

Let me add one more that I haven’t seen, but will be just as good a reason (or excuse) as the 16 listed.

17. Bush and Cheney lied about Weapons of Mass Destruction in Iraq and Clinton lied about having sex with Monica, therefore it is OK to download copyrighted music files without paying for them.

Shelley (user link) says:

Re: Excuses for Theft

Wonderful list, but you forgot that being able to download songs, and, in turn, share with thousands of our friends is guaranteed under free speech.

Another of my favorites is that musicians, like other artists, shouldn’t be in the craft in order to do something crass, like make a living. The joy of creation should be sufficient. And, in fact, they should be paying the audience for gifting them with their time and attention.

Wizard Prang (user link) says:

Re: Excuses for Theft

Long-winded but ultimately irrelevant to the subject under discussion. Mike is not defending theft, and neither am I.

As things stand, our copyright laws are well overdue for an overhaul (terms need to be shortened, and the public domain needs to be protected – which was the original purpose of copyright before big content got their hands on it).

Move along, nothing to see here.

Scorpiaux says:

Re: Re: Excuses for Theft

“Mike is not defending theft, and neither am I.” – Prang

I know that. I’ve known that since the first denial by Mike that he was. But there are people posting here who have and will continue to do so, although most in a veiled fashion.

“Move along, nothing to see here.” – Prang

😀

Anonymous Coward says:

Re: Re: Re: Excuses for Theft

I know that. I’ve known that since the first denial by Mike that he was. But there are people posting here who have and will continue to do so, although most in a veiled fashion.

People have also argued here that copyright infringement is the same as murder. So what of it? All kinds of comments get posted here. The important thing is to not accuse people of saying things that they didn’t.

And when someone says something happened “in a veiled fashion” it makes me wonder if it really only happened in their imagination.

Iron Chef says:

Ranting

Oooh Scorpiaux, Bad juju for you.. Bad..

So Mike makes many, many good points here.

So I recently decided to jump on the bandwagon of this “Leave Britney Alone” thing, and saw all the user-created content that came from this singular piece of non-copyrighted work. I started with YouTube… Good God. There’s parody from Seth Green, National Lampoon, and hundreds of others. Most of it is great, and builds upon the original.

Personally, I think we need to reinvent the copyright wheel. Instead of making everything private-only, we need to be able to build upon and extend upon others copyrights (or if need be, patents). Anything else just really puts us at a disadvantage when it comes to global markets.

If the system was properly setup to facilitate licensing, I think we’d be in a different ballgame than we are today… but instead we wait until being served a notice of appearance by the lawyers, and have to show how our ability to create and market a product is better than someone who just sits on a piece of paper who says “This is Mine”.

…But that’s just me.

scorpiaux says:

Atlantic vs. Howell

Prediction: Atlantic will win this case.

Additional prediction: A lot of posters here will be trying to use the results to make Howell a martyr in their quest to steal what is rightfully someone else’s, namely the right to distribute what belongs to someone else without compensating the owner.

All of the intellectualizing cannot force someone to give away something they own and who do not wish to give it away.

With respect to the arguments concerning business models, why try to force anyone or any business to do business in the way you think they should rather than leaving them alone to succeed or fail on their own? Want to do away with copyrights? Amend the Constitution. In the meantime do not piously attempt to suggest that your business model is superior.

This suit is between the plaintiff and the defendant. Atlantic believes it has been injured by Howell and it looks as though this will be the final conclusion once any appeals are made and rejected. If I were Atlantic or its officers and stockholders, I would NOT be sitting around wishing that I had just allowed Howell to usurp my rights and deprive me of potential income from the sale of intellectual property. I would also not be inviting uninvolved onlookers to tell me how to run my business. Whether I lose or fail would be up to me, not a bunch of vultures waiting in the wings for my demise.

I will be combing the Internet reading the wailing about the decision once it has been handed down. Bet it will be laughable.

Drew (profile) says:

Excuses for Theft?

You don’t have to amend the Constitution to bring about this change. No one here is saying that Copyright has no place in our society.

However, the laws that govern copyright are easily changable and in fact, OUGHT to be changed.

You’re right, as the law is written now, songs are the intellectual property of the copyright holder. As such, they have the right to determine what happens to their intellectual property. But just because that’s the way the law is written now doesn’t mean that’s the way it OUGHT to read.

Reforming a business model can come about two ways. By choice or by law. If the laws are changed to reign in copyright, the business models would have to change to survive. And in changing, Mike contends, they would prosper.

The Recording Industry, however, can also CHOOSE to embrace a “digital-age” business model instead of clinging onto a model that is doomed to failure. Suing your customers is never a sound business model. Soon (some would argue VERY soon), people will turn away from that model and embrace something different. Something they WANT.

And that is the choice that the Recording Industry faces. Reform by choice, go down with the old law, or be reformed by new law. Only one of these routes involves choice and survival, and we can only sit back and wonder, “When will they get it?”

Scorpiaux says:

Re: Excuses for Theft?

I have read many posts both on this web site and on others where the “new business model” is not only superior but should instantly replace the “old business model.” As I observed once before it seems to me that the “old business model” prosecuted shoplifters whereas the “new business model” allows shoplifters to keep whatever they can steal and will be offered what hasn’t been stolen at a price that is at or below cost. The “new business model” appears to be the brainchild of someone destined to fail.

Scorpiaux says:

Re: Excuses for Theft?

“Reforming a business model can come about two ways. By choice or by law. If the laws are changed to reign in copyright, the business models would have to change to survive. And in changing, Mike contends, they would prosper.”

—–

As far as I can tell, Mike doesn’t have a business that he can risk. It’s easy to suggest that others sacrifice themselves on behalf of your cause. It is quite different when the sacrifice is yours.

Scorpiaux says:

Blame the victim

Looks to me as though a lot of people here want to blame the RIAA for being the victim of massive theft. What kind of logic compels someone to conclude that victims ask to have their rights violated and that they further should not have redress in the legal system? The rule of law should prevail, not popular sentiment. A mob is a mob whether it wields weapons in the street or keystrokes on a computer keyboard.

citizenj says:

RE: (ad nauseum) Excuses for Theft by Scorpio (I w

Umm, Scorpio, you should check into an author named Cory Doctorow who has released numerous short stories and even a full length novel- Down and out in the magic kingdom- online. He has found that releasing things online actually propels sales of real world copies of his writings. But don’t believe me, I’m just some jerk online (just like you). You can check out his website and see what he has to say about it (and read some of his stuff if you like sci-fi) at craphound.com. So again, your analogy falls flat, sir.

Scorpiaux says:

Re: RE: (ad nauseum) Excuses for Theft by Scorpio

Show me where I have argued against giving away product. If someone wants to do that, it is OK with me. If they can turn a profit, that’s OK with me, too. Where I draw the line is in telling someone else how to run their business, how to make adjustments to changes in the marketplace, how to cope with new technologies, etc. If you are a stockholder or an officer, you have that right. Otherwise, if you get a cold- or non-response because you are neither, don’t act all surprised and for heaven’s sake, do not gloat that you are brilliant because you know what to do and they are stupid for not bowing to your suggestions. I don’t have the foggiest if the RIAA notes your suggestions, but if I were in their place, I would ignore them and go about finding the best solutions elsewhere.

Anonymous Coward says:

Quoting Dowling v. US as saying the SCOTUS said copyright violation wasn’t theft is a half truth. They never said it wasn’t theft and the case was not about copyright.

Mike, I know you have your point of view and have written billions of articles on the topic, but you are telling half truths on this issue (one half truth at least.)

I know why you do this, but it is bad form.

Dowling was charged with transporting stolen goods across state lines, not copyright violation. After he wrote “copyright does not easily equate with theft, conversion, or fraud” the good justice also went on to say “copyright violations equate to theft, but awkwardly.”

What does that mean? By quoting Dowling v. US, you weaken your case.

Anonymous Coward says:

Re: Re:

Dowling was charged with transporting stolen goods across state lines, not copyright violation.

Not just charged, as you imply, but actually convicted. Prosecutors charged him with interstate transport of stolen property because the penalties were greater. The Supreme Court subsequently threw the conviction out on the grounds that copyright infringement isn’t theft.

the good justice also went on to say “copyright violations equate to theft, but awkwardly.”

That quote isn’t even accurate. What he did say, after giving reasons for why it wasn’t theft, was “As a result, it fits but awkwardly with the language Congress chose – “stolen, converted or taken by fraud” – to describe the sorts of goods whose interstate shipment 2314 makes criminal.”

“Fits but awkwardly” here means, in a legal sense, that it just doesn’t fit. See this previous thread where Random Thoughts (posting here as well?) has previously tried to argue otherwise.

Scorpiaux says:

question

Mike, there must be a reason why RIAA isn’t following your advice and behaving as you think it should. What do you think the reason is?

I seldom give unasked-for advice without first labeling it as such. I also know that such advice is seldom wanted. When someone asks me for advice, I may or may not give it. It depends on a lot of factors, one of which in business is whether or not I get paid to give it. If it doesn’t cost the other party anything, it may not be perceived as of any real value. On the other hand, a substantial payment usually means you will get an audience that will pay close attention to what you say because there is value attached. Unless you show otherwise, the RIAA isn’t asking you for advice and is not sending you big bucks to tell it what to do with its business. How can you possibly expect that they will accept any advice from you (or me for that matter)? I can see, however, that if one day they don’t adopt your suggestions and go down the drain, you can have the pleasure of saying, “I told you so.” If they don’t take your advice and continue on with their own path and succeed, you can always say, “Give it a little more time,” and go on your merry way.

This is probably boring everyone to death. And it certainly is off-topic. My apologies for that. I will look for a more suitable venue here to continue this discussion. But maybe not today. Some other time perhaps.

Cheers.

Anonymous Coward says:

“Not just charged, as you imply, but actually convicted. Prosecutors charged him with interstate transport of stolen property because the penalties were greater. The Supreme Court subsequently threw the conviction out on the grounds that copyright infringement isn’t theft.”

Wrong, the Supreme Court said nothing about theft and everything about how Congress had a federal law that covered copyright violation and interstate transport didn’t matter since it was already covered.

the good justice also went on to say “copyright violations equate to theft, but awkwardly.”

That quote isn’t even accurate. What he did say, after giving reasons for why it wasn’t theft, was “As a result, it fits but awkwardly with the language Congress chose – “stolen, converted or taken by fraud” – to describe the sorts of goods whose interstate shipment 2314 makes criminal.”

I think the quote is pretty accurate, less words, but covers the jist of the quote.

No court has ever said copyright violation is not theft. Of course, no court has ever said it was, but to say the Supreme Court declared copyright violation wasn’t theft is a lie or at best a half truth.

Anonymous Coward says:

Re: Re:

Wrong, the Supreme Court said nothing about theft and everything about how Congress had a federal law that covered copyright violation and interstate transport didn’t matter since it was already covered.

Lie.

I think the quote is pretty accurate, less words, but covers the jist of the quote.

Not just less words, but different words as well. Further evidence of your disregard for the truth.

I have no doubt that you will continue lying. You may even convince yourself of your lies in your own mind as the best liars seem to do. There’s nothing I can do about that but pity you. What I can do, however, is call you out on it in public so that others aren’t misled. Now that I’ve done that I’m sure you’ll just carry on. So, carry on…

Anonymous Coward says:

is call you out on it in public so that others aren’t misled.

Just because you want to justify what you do doesn’t mean you are correct. My disregard for the truth? That is very funny considering your position. Not only do you disregard the truth, you ignore the law. Course, other criminals do the same thing, so why should I be surprised.

Anonymous Coward says:

Re: Re:

Just because you want to justify what you do doesn’t mean you are correct. My disregard for the truth? That is very funny considering your position.

Now that’s funny. What I’m doing is exposing a liar and I don’t really feel the need for any kind of justification: I just don’t like liars and shills. I actually enjoy outing you.

Not only do you disregard the truth, you ignore the law. Course, other criminals do the same thing, so why should I be surprised.

Oh, so now it’s even criminal to point out your lies? What a load. Man, you industry trolls just don’t know when to give it a break, do ya? You’re just making yourself look even more ridiculous (and that’s saying a lot).

Anonymous Coward says:

As a result, it fits but awkwardly

What does this mean to you? What it means to me is that you try to justify your actions, but it just doesn’t cut it. Out me? You are just trying to feel better about yourself. Personally, I don’t care, good luck with that. Give it a break? I am sorry, when someone quotes the courts wrong, I point it out. If you choose to ignore facts, thats up to you.

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