RIAA May Have A Pretty Strong Case

from the some-evidence-is-sticking dept

Thu, Oct 4th 2007 6:33am — Mike Masnick

Lots of folks are paying plenty of attention to the first RIAA lawsuit to go to a jury trial. Initially the reports were that the defendant's case was strong, and the RIAA didn't have very much evidence. In fact, the RIAA's star technical witness has been debunked before, and it appears that many of his claims were once again debunked in the court room. However, even with such weak technical evidence, I have to agree with Tim Lee that this sounds like the RIAA has a pretty strong case, based on the combination of the IP address and the username in Kazaa. It's the identical username that the woman uses for many, many different online accounts -- making it tough to believe that someone else happened to be using that same username from an IP address assigned to her account. It also seems highly questionable that the woman would claim she never had Kazaa with that kind of evidence. There are still some legal questions here -- including whether or not the court will instruct the jury that simply making content available is copyright infringement. However, it's disappointing that this is the case that's going to trial, because it certainly looks like the RIAA has stronger evidence than usual in this particular case. Despite what some people think my position is on the issue of unauthorized sharing, I absolutely do not condone it (nor partake in unauthorized sharing). I think the laws covering this type of thing tend to do more damage than good to the very industry it's supposed to help -- but that doesn't mean people should be free to ignore them. I also think the RIAA is making a dumb business decision with these lawsuits and that it often accuses people without much real evidence. However, even with the flimsy technical evidence, the combination of other factors certainly makes this look like a much stronger case from the RIAA's side. That's unfortunate, because if the RIAA does win, more people will assume it legitimizes their lawsuit strategy and even supports their other cases where the evidence is a lot weaker. Perhaps I'm missing something, but it's difficult to see how this case was a good one to fight the RIAA on.

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Filed Under: copyright, jury, lawsuit
Companies: riaa

48 Comments

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RandomThoughts, 4 Oct 2007 @ 6:40am

I agree Mike, I had thought this would have been a test case, but it seems that won't happen. I have a feeling this woman was talked into going to court by folks that wanted to create that test case.

If she loses, hopefully they will pay her fines.

I had thought that this woman may be the Rosa Parks of filesharing, but now she seems more like Tawana Brawley.
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ReallyEvilCanine, 4 Oct 2007 @ 7:03am

Plausible denial
I never once used my own nick on any filesharing network, and from the day that tracking was announced some six years ago I intentionally used the same nicks as others already on-line to make such tracking more confusing.
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James, 4 Oct 2007 @ 7:10am

Circumstancial?
Seems to me they should have to PROVE she shared a file not just offered them up or that her IP/username was on Kazaa.. just my 2 cents.
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The Dukeman (profile), 4 Oct 2007 @ 7:19am

user ID
At first glance the user ID issue seems mighty damning for the defendant. But the fact that she uses this ID on many other sites means that it is much more likely that it could have been stolen and then used by someone wanting to cover their own tracks while performing questionable acts online. Although the combination of the same user name AND the same password might seem to be more conclusive evidence, that would only be true if it's shown that she used this same combination frequently across the web. It certainly wouldn't be conclusive evidence for the same reason. The argument is just as strong whichever way you look at it. "Evidence" may be too strong a word to describe that data.
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Mike F.M, 4 Oct 2007 @ 7:22am

It's an interesting one
This really will be an interesting case to see through to the end. Especially as they have had a large amount of their evidence shot down, to then go and win will be a really negative result for future cases.

I'm not saying that should be a reason for this woman to be found not guilty if she indeed is, just that a decision like that is likely to hurt alot of people, and make people bow to the pressure of paying-off early all the more.

Oh, and you're definately right Mike, this is a VERY dumb business decision for a company not just in the space to make a quick buck by taking people to court. Considering they require an on-going stream of revenue.

Although you could argue that this kind of behaviour is sustainable. As long as people break copyright, they will be able to suck money out of this strategy
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Monarch, 4 Oct 2007 @ 7:28am

Just read the latest from ARS Tecnica. Seems the defendant owns hundreds of CD's, and if that was the case, the RIAA has to prove that just because the CD's were ripped to her computer and in a shared file that was public, that it constitutes as copyright infringement. Apparently the issue isn't whether the defendant was pirating the files, but if the files were being distributed. So, maybe that's why the defendant is going to court on this. Maybe it's a case of ignorant sharing, and not pirating at all?!?!?!?

http://arstechnica.com/news.ars/post/20071003-defendants-counsel-hammers-away-at-pirac y-picture-painted-by-riaa.html
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Anonymous Coward, 4 Oct 2007 @ 7:44am

Re:
Hey Monarch... Ignorance is no excuse.
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Sean, 4 Oct 2007 @ 7:53am

Hey Anonymous Coward, "Making available" is not infringing, no matter how much the RIAA wants it to be. They have even removed that complaint from their boilerplate suits.

For me the most interesting part about this trial was the testimony of the record company exec, who admitted that these lost suits are costing way more money than they generate. Seems like the only people that really benefit from these suits are the RIAA's lawyers.
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Daniel, 4 Oct 2007 @ 7:54am

too much evidence should just admit
well riaa got some solid proof is this women was realy downloading ilegal music she should pay, saying she didnt do it is coward!
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Aaron Martin-Colby (profile), 4 Oct 2007 @ 8:04am

I love to share!
Mike,

While I understand your stance on the law, I must side with Aquinas on this one and say that an unjust law is no law at all. I have absolutely no problems file-sharing. Hell, I encourage it publicly.
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Danny, 4 Oct 2007 @ 8:06am

Re:
After reading that ARS Tecnica post I think it may be possible that most of the music collection she had on her pc was from backing up her own cds. But I'm sure the RIAA would like to counter by saying, "Well if her digital music is a copy of her cds then whey does have Kazza in the first place?", totally ignoring the fact that there are perfectly legitimate uses for Kazza.

While this may not be a good case to prove that the RIAA depends heavily on weak evidence this could be a good case to prove that owning a large digital music collection does not automatically mean that they illegaly downloaded it.
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Killer_Tofu (profile), 4 Oct 2007 @ 8:09am

Re #9
You must have not noticed post #6.
She has hundreds of CDs.
Any and up to all files on her machine could be legitimately ripped.

Also, remember that little fair use law?
As long as you bought a CD, it still is not illegal to have a back up copy. So if you only download songs from CDs you bought, you are not copyright infringing. At least that is STILL my understanding, after asking very specifically about it and others agreeing.
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Reed, 4 Oct 2007 @ 8:15am

Civil or Criminal?
I was under the impression this is a civil case where they do not need to prove beyond a shadow of a doubt that she did it. The jury decides on whichever argument they find more compelling which is far different from a criminal trial.
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Anonymous Coward, 4 Oct 2007 @ 8:18am

Mike on RIAA...again....and again....and again....
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RandomThoughts, 4 Oct 2007 @ 8:25am

Evidence? Circumstantial evidence has sent people to the electric chair. Look at OJ and if you think he was guilty or not? Did anyone see him kill? Was there any DNA evidence that he killed?

A lot of people say he should have been convicted. Of course I am not comparing the deeds of murder to file sharing or this case, but you don't need ultimate proof to be convicted.
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Mark Levitt, 4 Oct 2007 @ 8:32am

Kazaa simply uses your Windows Username
You don't *create an account* on Kazaa? You just install it.

I suspect Kazaa just uses the Windows username of the account that installed it.

So, here's the possible scenario:

1) Thomas used the same username on her computer as on the other online accounts. Windows asks for a username, even if you don't use a password or require a login. I think the default for a Windows machine is to simply boot to the desktop without requiring a login, but there is still a windows account running.

2) She rips CDs she owns to her computer

3) Someone else, perhaps the ex-boyfriend she mentioned having used her computer, installs Kazaa. Most home users don't create multiple accounts on their machines for each family member. They just use a single, shared account.

4) Kazaa, during the install, automatically picks the username of the Windows account it is installed with as the "...@kazaa" string.

5) Kazaa begins sharing the mp3 files on the computer.

As Kazaa does not actually *ask* for a username when installed, I don't think it's compelling to say she "used the same account on Kazaa"

All they can prove is that computer running under that username shared some files. They still can't connect the computer running under that username to the actual person.
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James, 4 Oct 2007 @ 8:33am

Re:
No you don't need ultimate proof, but if you're going to fine someone heavily for something as meager as sharing some bits, and most definitely if you're going to lock up someone up for murder..... you should.
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Just Me, 4 Oct 2007 @ 8:41am

Laws
Seems to me there's an awful lot of disagreement about what is and is not illegal when it comes to file sharing/ripping/technology in general.

A lot of this probably stems from different laws being applied in different places (I for one am in Canada and the laws are a bit more relaxed here, though I'm still not entirely certain where the boundaries are).
Does anyone out there know of a good site for breaking down the "do's and dont's" of tech law as it applies to file sharing and different regions?

I recall I saw something like this related to sex laws by age and region, but nothing definitive for copyright/file sharing laws.
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Pirate, 4 Oct 2007 @ 9:00am

Regardless of whether she did it or not, it's if the RIAA can prove that it was her sitting at the computer doing it.
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AndyB, 4 Oct 2007 @ 9:01am

RIAA Defense
I agree - the couple of articles I have read on the case have left me banging my head on the wall saying 'WHY??'. There is a big problem with her hard drive replacement story, the fact that she has a history (admitted) of using and being familiar with pre-legit Napster, and her username issues.

If this is civil rather than criminal (I think it is) I don't like the defense's chances. The defense needs to drop the 'a hacker did it' and focus on 'can you PROVE that SHE shared THOSE songs - if they can't don't convict'.

I also agree with Mike's position - the RIAA is making awful business decisions, but they are for the most part on the right side of the letter of the law (if not always in thier tactics their contentions). The best way to get the RIAA to change isn't to defy them legally, it is to vote with your pocketbook.

This was an awful case to bring to trial to make a statement against the RIAA. It is going to set a bad precedent and the RIAA wouldn't be there if they didn't think they would win.
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Anonymous Coward, 4 Oct 2007 @ 9:17am

It sounds like they have pretty good evidence that she may have had kazaa installed and that her assigned IP was used for kazaa sharing. Does anyone know if the RIAA has any evidence of what was actually being shared via kazaa from her system?

Even if she had thousands of cd's ripped to her system if there's no proof that these were being shared then I don't understand how they have a good case here? Yes, I know that people have been convicted on much less circumstantial evidence, I'm just curious if the RIAA is even trying to list items that are supposedly infringing or are they just basing this on the ability to infringe.
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A. L. Flanagan, 4 Oct 2007 @ 9:27am

Civil Disobedience?
>> I think the laws covering this type of thing tend to do more damage than good to the very industry it's supposed to help -- but that doesn't mean people should be free to ignore them.

Well, maybe not "free to", but... If the law is wrong, and nobody violates it, how will it ever get changed? Do you think reasoned argument will prevail in Congress over the RIAA campaign contributions?

There's bigger issues here than this or that business model. Traditionally the public owns creative works, the creator has a limited distribution monopoly. Now a lot of pressure is being brought to make creative works the property of a corporation in perpetuity, and whether that idea succeeds or fails will have a huge impact on the future.
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RandomThoughts, 4 Oct 2007 @ 9:29am

I am not so sure the RIAA has to prove it was her sitting at the computer. People go to jail for having child porn without it being proven they are the ones that collected it.

The jury heard the case and will determine one thing. If they think after considering what they have heard, did this woman violate copyright laws? If so, she is in trouble. Of course, the jury could pull a Nullification if they decide that the law is just bad.
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Haapi, 4 Oct 2007 @ 10:06am

Re: Kazaa simply uses your Windows Username
This trial is in Minnesota. It is interesting that a MN "photo-cop" law that netted hundreds running red lights was declared unconstitutional because it could not be proven that the owner of the vehicle was actually the driver during the infraction. Not much different, here, from your last line.
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Anonymous Coward, 4 Oct 2007 @ 10:37am

Re: Civil Disobedience?
What? So no one should be able to have control over the distribution of their creation? Goodbye freedom, hello government control.
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Rhema, 4 Oct 2007 @ 10:41am

further evidence required
Seems to me that the riaa must show considerably more than everyone is expressing in order to prove that the defendant is guilty.
First, she owns 100s of CDs she has a legal right to rip. (say one is Peter Frampton: Frampton Comes Alive)
She has KAZAA loaded, which is legal.
I own the LP Peter Frampton: Frampton Comes Alive. I have no means of playing it any longer but I do have the legal right to hold a backup.
I find Peter Frampton: Frampton Comes Alive using KAZAA and download it from the defendant.
No law has been broken. The defendant merely assisted me in making my legal backup.

I am unclear as to the specifics of this case. If it is individual content, than the riaa must prove in court that the defendant has a music file on her computer that she does not possess the CD, LP, cassett, 8track or other media allowing her the legal right to to backup. (if a list of possible songs were available I am certain someone would mail her a legal copy for trial purposes).
Or is the case regarding sharing. Which will be much more difficult as it requires proving ACTION and INTENT.
The riaa must prove more than the intent to make the music files available to people who do NOT have a legal right to download them. (if is not illegal to INTEND to run a stop sign so long as you do not take action. The ACTION of running a stop sign is illegal).
The must prove that the files WERE downloaded by individuals who do not have not acquired the rights to them.
I believe the court should require the riaa to compile a list of all individuals who downloaded songs from the defendants account, bring those individuals into court, and prove that they did not have legal right to a backup copy.

If 500 or 1000 people arrived in court as witnesses, carrying a CD, LP, cassette or 8track and state that they downloaded a backup with KAZAA, from the defendants account or any other, but you have the legal right to do so it because it is on the CD, LP etc. which you have in your hand.
Alternatively imagine the defendants case if 10,000 people took a photo of themselves holding an LP etc, and wrote a sworn letter that they downloaded a legal backup with KAZAA and mailed it to the defendant. If the riaa could find documentation that proves Imagine the defendants case if 10,000 people took a photo of themselves holding an LP etc, and wrote a sworn letter that they downloaded a legal backup with KAZAA and mailed it to the defendant. How many people who downloaded the defendants files would the riaa have to find documentation on and prove in court to offset this?
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Anonymous Coward, 4 Oct 2007 @ 11:12am

Re:
Judge Davis amended the instruction to say that the "act of making available for electronic distribution... violates the copyright owner's exclusive copyright." That decision should make it easier for the jury to find Thomas liable.

Apparently, as in Napster, on services where the majority of use is infringing, it is, in fact a violation of copyright.

Sorry to burst your bubble.
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grog, 4 Oct 2007 @ 11:14am

Criminal vs civil law
There's a lot of posts here by people that don't seem to understand how the law works in a civil case. Everyone keeps talking about how much the RIAA evidence is all circumstantial, it still doesn't prove she actually shared the files in question, etc, etc. Everyone keeps forgetting that this is NOT a criminal case, it's a civil case, and as such the burden of proof is much lower.

With a criminal case you need to prove things beyond a reasonable doubt and if this was a criminal case then the evidence provided most likely wouldn't be enough to convict. However, in a civil case it is simply decided based on a balance of probabilities. i.e. Which side is more likely "right". The O.J. case is a perfect example of this. In his criminal trial he was found not guilty because the defense succeeded in raising reasonable doubt and that's all they needed to do. However, in the subsequent civil case he lost because the burden of proof isn't as strict.

In a civil case, if the plaintiff convinces the jury that the defendant most likely did it, that's good enough. Reasonable doubt doesn't matter. In this particular case I still wouldn't call it a slam dunk for the RIAA but their chances are looking pretty good.
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Buzz, 4 Oct 2007 @ 11:16am

Exactly.
It is one thing to download a song without permission.

It is something else when the authorities behind that song hold you to a gunpoint as punishment (figuratively speaking).

People need to understand that attacking the RIAA is the not same as supporting/encouraging piracy. Like Mike, I do not believe anyone should take material (digital or not) that does not belong to them. However, the punishment should be in the neighborhood of $500 per case, not $250,000. We're talking about copying music here, not stealing government secrets. The RIAA's "wonderful" $3000 settlement is ridiculous, especially for someone still in school and struggling with bills as it is.

My speeding ticket from years ago was $114. I deserved it! My actions could lead to someone's death (including my own). So, how is it that endangering the lives of those around me costs $114, but pirating (not "stealing") music costs $3000? The RIAA is quite corrupt in this respect.
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Anonymous Coward, 4 Oct 2007 @ 11:17am

Re: further evidence required
The RIAA only needs to provide a preponderance of evidence to the fact that she had Kazaa installed and copyrighted files shared.

That is it.

It doesn't need to be conclusive, it doesn't even need to prove that she actually uploaded anything. THis is a civil case and the judge has stated that simply sharing copyrighted content on Kazaa (where the majority of use is infringing) *is* infringement.

Bottom Line: They've pretty much shown that Kazaa was installed, that no-one else accessed her system, and that the files in question were shared, regardless of intent.

She's going to lose this one.
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Thom, 4 Oct 2007 @ 12:44pm

Ignorance is no excuse unless you host a wireless
So, if she was ignorantly sharing the files, it is piracy, but if she ignorantly leaves leaves her wireless network unsecured and ignorantly shared the files, someone else is stealing services?

Exploiting the publics and a judge's ignorance of technology is no excuse for litigation-as-a-profit strategy.
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Anonymous Coward, 4 Oct 2007 @ 1:46pm

Re: Exactly.
I've wondered this one as well. How in the world do they calculate those "irreparable" damages? I'd like to know what system of mathematics they use to conclude that suing for several hundred is fair compensation for s single song. I'll bet they do something crazy like count each track as a lost album sale. Considering that albums cost nearly $20 these days a 20 track album would cost almost $400!
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Anonymous Coward, 4 Oct 2007 @ 2:21pm

Re: Re:
Judge Davis amended the instruction to say that the "act of making available for electronic distribution... violates the copyright owner's exclusive copyright." That decision should make it easier for the jury to find Thomas liable.
That's a very significant point, one that I would expect to see challenged on appeal. Such a broad interpretation could make one liable for copyright infringement by, for example, lending a CD to a friend. Not to mention the implications for internet radio and libraries.
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RandomThoughts, 4 Oct 2007 @ 2:26pm

Lending a CD to a friend. That is interesting. If you made a copy, that is one thing, if you give up the physical product and you no longer have it, then I would think you would be safe. Of course, if you give it to them with the understanding that they would copy it and give it back to you, that could be considered conspiracy.
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Anonymous, 4 Oct 2007 @ 2:48pm

GUILTY- $222,000 penalty
Trial verdict in per Duluth News Tribune
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Anonymous Coward, 4 Oct 2007 @ 2:51pm

Re:
Lending a CD to a friend. That is interesting. If you made a copy, that is one thing, if you give up the physical product and you no longer have it, then I would think you would be safe. Of course, if you give it to them with the understanding that they would copy it and give it back to you, that could be considered conspiracy.

Yes, but if you lend a friend a cd and they make a copy without your knowledge, and then give back the cd, what then? It seems like that would certainly be "making available to be copied."
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RandomThoughts, 4 Oct 2007 @ 2:52pm

Ouch.
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RandomThoughts, 4 Oct 2007 @ 3:30pm

Yes, but if you lend a friend a cd and they make a copy without your knowledge, and then give back the cd, what then? It seems like that would certainly be "making available to be copied."

Not really, you could give someone your CD for them to listen to. With file sharing, they have to copy it in order to listen to it. With the CD, there is no need for a copy. Intent is a very important point when it comes to the law.
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Drakoth, 4 Oct 2007 @ 3:42pm

Re: Re:
Oh my, you make a wonderful point there.
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Anonymous Coward, 4 Oct 2007 @ 3:42pm

Re: GUILTY- $222,000 penalty
Link http://arstechnica.com/news.ars/post/20071004-verdict-is-in.html
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RandomThoughts, 4 Oct 2007 @ 3:45pm

If I were the RIAA, I would hold a press conference. I would have Jammie Thomas up there with me. I would say that this trial shows that the courts will uphold copyrights and sends a message to everyone that uses p2p or other systems that what you are doing is wrong. Since the message has been sent, we understand that the people that use these systems are our fans, our customers. We don't want to have to take these actions. With that, we release Ms. Thomas from her obligation and expect her to pay nothing to the RIAA. In doing so, we want it know that we intend to pursue others in the future, and they should use this case as a warning.

This does a few things, one is that it avoids any appeal. Another is that it does send a message. Seems like a win-win to me.
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Buzz, 4 Oct 2007 @ 4:21pm

scary
$222,000... That is outrageous! That poor person is losing everything over some silly piracy lawsuit. You can get a really nice house for that much money!
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Anonymous Coward, 4 Oct 2007 @ 6:34pm

Re:
Not really, you could give someone your CD for them to listen to. With file sharing, they have to copy it in order to listen to it.
Not true. It is possible to listen to a file on a remote computer without downloading it to your local storage. It's called streaming and buffering. Unless you want to call buffering "downloading" in which case it could also be said then that your friend copied your CD when his CD player buffered it as they all do.

With the CD, there is no need for a copy.
Unless you call buffering copying.

Intent is a very important point when it comes to the law.
Which is something I don't believe they have shown in this case. Did this person intend for these files to be in a shared folder? And if so, did they intend for the files to be copied rather than listened to?
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RandomThoughts, 4 Oct 2007 @ 6:52pm

I don't know the technical details of file sharing, so I don't know if you can streem from file sharing programs.

I would think that having an account with KAZAA could show intent.
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Peter Rock, 5 Oct 2007 @ 3:27am

Well I figured I'd probably disagree with something you have to say at some point, Mike. I condone sharing - authorized or not.

To argue that the law should be obeyed because it is the law is an amoral stance. It's unfortunate when people take the amoral road but I suppose it's an easy way out.
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RandomThoughts, 5 Oct 2007 @ 6:40am

I have to disagree Peter. If you don't like the law, fight it, fight to have it changed. Work to have the law changed. Breaking the law is all well and good, but do you really feel like paying $220K?

It may be amoral to you, but maybe they consider your stance amoral?
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Just Me, 5 Oct 2007 @ 7:01am

#45, 46
"If you don't like the law, fight it, fight to have it changed. Work to have the law changed."

Absolutely. Some laws are downright wrong. In which case, fight to change them as best you can - BUT while it is still law; obey the law.
This may not always be the case in extreme circumstance but in day to day legal issues there are rarely laws that need to be broken morally.

I realize as someone who *may* have pirated *some* things in my time this is hypocritical, but then I would also not be overly surprised to face consequences.
...Thought $200K + does seem rather ridiculous. I would think there would be some form of formula for calculating damages that the plaintiff would have to demonstrate before allowing such a figure.
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Peter Rock, 5 Oct 2007 @ 7:24am

Re:
"If you don't like the law, fight it, fight to have it changed."

Yes. Or hack it. Or something. I didn't suggest that breaking a law is a replacement to working to overturn it. I'm simply saying that to claim "If a law exists it should be obeyed." is an amoral view.

"Breaking the law is all well and good"

Then I don't understand your point. You seem to be saying contradictory things.

"but do you really feel like paying $220K?"

No, but that means what? If you are saying "Jammie, don't do it because it could cause you a lot of grief.", that is one thing. But Mike isn't saying this. He is saying he doesn't "condone" it. This means he believes what she did was morally wrong. He even said he doesn't do it himself. Not because it is dangerous (which is a valid argument) but because it is law.

"It may be amoral to you, but maybe they consider your stance amoral?"

So? "They"(?) are entitled to an opinion. In fact, I'd like to hear it.
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