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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Filed Under: copyright, jammie thomas, making available, mistrial, trial
Companies: mpaa, riaa
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Congress' Intentions?
[pessimist]
Does anyone here actually think that Congress knew what they intended on the "Making Available" point?
[/pessimist]
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Re: Congress' Intentions?
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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Re: Re: Congress' Intentions?
The relevant statutory construction principle being expressio unius est exclusio alterius.
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Making available
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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Re: Making available
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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Re: Re: Making available
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Re: Re: Re: Making available
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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Re: Making available
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Re: Making available
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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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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Re:
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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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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Re:
The "intent to distribute" charge can be applied to both, however.
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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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it doesnt make sence!!
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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Is it really that hard to prove?
It's not that much to ask, is it?
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Re: Is it really that hard to prove?
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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Re: Re: Is it really that hard to prove?
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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Others "making available"
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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Re: Others
"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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Re: Others "making available"
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Appeals
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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