As Jammie Thomas Seeks New Trial, RIAA Claims (Incorrectly) That She Distributed 1,700 Songs To Millions

from the can't-stop-the-lying dept

Tue, Jul 7th 2009 6:48am — Mike Masnick

This will come as a surprise to just about no one, but Jammie Thomas' lawyers have pointed out that the $1.92 million verdict against her is excessive, and is asking the judge to either throw out the award, lower it to the statutory minimum or grant a new trial. That was pretty much expected. What's odd, however, is the note at the very bottom of that article, concerning the filing that the RIAA made to the court. The RIAA keeps insisting that it just wants to settle the case, but if that's true, it seems weird to then attack Thomas in court again, but that's what the filing seems to do. It suggests that Thomas (despite this whole process) must still be sharing songs and that the court needs to issue an injunction barring her from doing so. While we've said that there appears to be ample evidence that Thomas used file sharing programs (and that she shouldn't have let this case go to trial), it would be quite surprising if anyone had any evidence that she was still doing this. As far as I know, the RIAA has not presented any such evidence at all. Demanding an injunction, then, seems quite strange.

On top of that, the RIAA appears to falsely claim (or the AP reporter misquoted the RIAA) that Thomas "distributed more than 1,700 songs to millions of others through the file-sharing system Kazaa." That may be true, but it certainly was not shown in court at all. The RIAA only named 24 songs she was charged with sharing, and then did not present any evidence that she actually shared any of them with anyone other than the RIAA's own investigators. The claim that she "distributed more than 1,700 songs to millions of others" was not proven at all, and in fact this entire new trial was because the judge originally made the mistake of assuming "making available" meant distribution. It does not. For the RIAA to misstate this point is really quite odd.

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Filed Under: constitutional, copyright, file sharing, fine, jammie thomas, lawsuit, music, settlement
Companies: riaa

28 Comments

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moore850 (profile), 7 Jul 2009 @ 8:01am

Isn't that the entire argument though?
Isn't the RIAA's entire argument on a judgement like that based on that this person must have actually and directly caused a loss of income equal to $1.92 million, i.e. distributing millions of copies of music without permission? If she really could only be proven to have distributed 24 songs each one time, then wouldn't actual damages from the crime amount to the retail losses on those 24 proven distributions?
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Mike B, 7 Jul 2009 @ 8:01am

slander
Wouldn't the RIAA claiming that she made 1700 songs available to millions actually be slander...or libel? I can never remember which one is in print.
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Anonymous Coward, 7 Jul 2009 @ 8:20am

Re: slander
Libel is written, slander is spoken... didn't you watch the first Spiderman movie! (of the newer trilogy anyways)
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Shawn, 7 Jul 2009 @ 8:25am

Reasonable doubt
I think the RIAA is basing her sharing songs, because there seems to be little doubt as the article said, on the fact that she uses sharing programs. Logic would deduce that there would be no other reason to have this than to obtain "illegal" content (and I use that term loosely). There is no 'reasonable doubt' shown that would make you, or in this case - the judge - think that she would be using that for any other means than to distribute. The problem with that, is that the judge appears to not have been fully schooled on the workings of the program.

It should go back to court, and the fines thrown out until a re-trial. The case should have been presented a lot better, and the judge made a rash decision without knowing more information.
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Michael L. Slonecker, 7 Jul 2009 @ 8:31am

Rather than relying on a news report of what defendant's counsel is asking of the court, it is much more informative to read the actual motion. It can be found at:

http://www.scribd.com/doc/17149032/Defendants-Motion-for-New-Trial-and-Remittitur

I have not as yet had the opportunity to read plaintiff's submittal, i.e., its own motion and its response to defendant's motion.

If the defendant had even an ounce of sense, which her actions to date suggest she is missing even this nominal amount, she would settle this case and get on with her life. Apparently, the opportunity to tilt at windmills without having to pay lawyer bills is much too tempting for her to pass by.
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Johnny Soto, 7 Jul 2009 @ 8:35am

Wow
No way dude you got to be kidding me. The RIAA is pathetic!

RT
www.anonymize.tk
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Anonymous Coward, 7 Jul 2009 @ 8:38am

Do 'millions' of people even use Kazaa? I didn't even know it was still out there.
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RD, 7 Jul 2009 @ 8:48am

Must be proven
"I think the RIAA is basing her sharing songs, because there seems to be little doubt as the article said, on the fact that she uses sharing programs. Logic would deduce that there would be no other reason to have this than to obtain "illegal" content (and I use that term loosely). There is no 'reasonable doubt' shown that would make you, or in this case - the judge - think that she would be using that for any other means than to distribute. The problem with that, is that the judge appears to not have been fully schooled on the workings of the program."

While I understand your point, and agree with your later paragraph about a redo on the trial, this idea doesnt stand up in court. In court, you have to PROVE beyond a reasonable doubt that something occurred. You cant prove something DIDNT, you cant prove a negative. In this case, the prosecution must PROVE that she shared these songs. They did not. They only proved, with any certainty, that she shared 24 songs with their own investigators, not with anyone else. Also, its not necessarily true that file sharing programs are ONLY used for sharing music and movies. Yes, they do a lot, but not JUST for that, there are other uses, since they share files of any kind. That alone raises a reasonable doubt. And even then, thats not enough, since the tool isnt illegal by itself (shouldnt be that is, but these judges and juries are ignorant idiots who dont understand the tech and rule incorrectly). If that were so, then guns would be de facto illegal, since the main purpose (but not the ONLY purpose, just mostly) of a gun is to kill something.
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Anonymous Coward, 7 Jul 2009 @ 9:00am

"Beyond a reasonable doubt" is the standard of proof in criminal prosecutions. "Preponderance of the evidence" is the standard of proof in civil lawsuits.

Note to self: Lobby once more for "civics" to be added as a mandatory part of the curriculum in high school.
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SilverSliver99, 7 Jul 2009 @ 9:23am

Re: Isn't that the entire argument though?
How DARE you use logic!
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Big Mook (profile), 7 Jul 2009 @ 9:25am

Re: Wow
Sorry dude, but people who routinely pirate content aren't going to pay to anonymize themselves. It runs counter to the whole idea of getting everything for free.

Next idea, please.

Hail Xenu (and Seth)!
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Anonymous Coward, 7 Jul 2009 @ 9:31am

Right!
"Beyond a reasonable doubt" is the standard of proof in criminal prosecutions. "Preponderance of the evidence" is the standard of proof in civil lawsuits."

Correct! Now, remind us all again why these people are being tried in criminal trials for infringement, which is a civil matter?
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Michael L. Slonecker, 7 Jul 2009 @ 9:36am

Re: Right!
The lawsuits are civil actions brought by the individual copyright holders. They are not criminal actions brought by the government.

Note to self: First note to self was on the mark.
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Anonymous Coward, 7 Jul 2009 @ 9:38am

Re: Re: Wow
especially when you can get it for free

http://en.wikipedia.org/wiki/Tor_(anonymity_network)
http://en.wikipedia.org/wiki/Darknet_( file_sharing)
http://en.wikipedia.org/wiki/Anonymous_P2P
http://en.wikipedia.org/wiki/Freenet
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Mike Masnick (profile), 7 Jul 2009 @ 9:43am

Re:
If the defendant had even an ounce of sense, which her actions to date suggest she is missing even this nominal amount, she would settle this case and get on with her life. Apparently, the opportunity to tilt at windmills without having to pay lawyer bills is much too tempting for her to pass by.

I disagree almost 100%. While I certainly was among those who suggested she made a huge mistake in moving forward with this trial, and believed she absolutely should have settled before the case went anywhere, I absolutely disagree that she should settle now.

At this point, she has absolutely nothing to lose in fighting the constitutionality of the statutory rates. Why settle now?
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Michael L. Slonecker, 7 Jul 2009 @ 10:00am

Re: Re:
As a legal matter I do agree that she has nothing to lose by this suit moving to an appeal.

However, as long as this suit proceeds in the courts the plaintiff will continue to have her private life disrupted into the indefinite future. By way of but one example, new trial awarded? Great, more depositions in Brainerd and significant time spent away from home while sitting in a Minneapolis courtroom, only this time 1700+ copyrights will be asserted versus the limited 24.

The appeals process takes place over a long period of time, during which her life will continue on "hold".

Mine is just a practical observation and not a legal one.
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The Infamous Joe (profile), 7 Jul 2009 @ 10:01am

Re: Re: Right!
You could have left your first "Note to Self" off and corrected the commenter on their mistake without looking like an immature, condecending douchebag.

Just an idea for the future.
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RD, 7 Jul 2009 @ 10:05am

Right!
"The lawsuits are civil actions brought by the individual copyright holders. They are not criminal actions brought by the government."

Then why are there FBI warnings on movies that state very clearly CRIMINAL penalties for infringement?
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Michael L. Slonecker, 7 Jul 2009 @ 10:08am

Re: Re: Re: Right!
Both posters exhibited fundamental misunderstandings; namely, that there is a different burden of proof in civil versus criminal proceedings, and that this case is a civil, not criminal, proceeding.

Even the most basic of courses in civics would explain this distinction.

This is no different than Mr. Masnick calling for basic courses in economics.

Both should be taught as an integral part of a secondary education curriculum.
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RD, 7 Jul 2009 @ 10:11am

Right!
"You could have left your first "Note to Self" off and corrected the commenter on their mistake without looking like an immature, condecending douchebag."

Thank you! I was only trying to point out the duplicitous nature of these trials. They are SUPPOSED to be civil cases, yet they get splashed around the media by the RIAA and everyone as if it is a CRIMINAL case. Nothing is EVER said of the CIVIL nature of the INFRINGEMENT (not crime). They only talk about how this woman is accused of the "crime" of making available/copying/sharing. So it gets equated with stealing, which is NOT the same thing under the law and has a different legal standing and penalties. Now you can all tell me how wrong I am (I'm not).
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romeosidvicious (profile), 7 Jul 2009 @ 10:43am

Re: Right!
The FBI warnings don't mean anything at all in these trials. These trials are civil trials. Regardless of any criminal penalties, which I believe are only for commercial infringement (IANAL), the trial that is being referred to here and the other trials are civil trials brought by the RIAA on behalf of the copyright owners. There is no possibility of imprisonment and the damages are different as is the burden of proof.
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rwahrens (profile), 7 Jul 2009 @ 10:43am

Re: Right!
Because those threatened criminal penalties are for COMMERCIAL infringement, in which one is SELLING illegally copied copyrighted material for profit.

CIVIL penalties are sought against individuals accused of non-commercial copyright violations, i.e., not for profit infringement.
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Anonymous Coward, 7 Jul 2009 @ 11:08am

but it doesnt
"Because those threatened criminal penalties are for COMMERCIAL infringement, in which one is SELLING illegally copied copyrighted material for profit.

CIVIL penalties are sought against individuals accused of non-commercial copyright violations, i.e., not for profit infringement."

That would be a good explanation, if the statute differentiated between them. As it is, its just infringement, which is a civil matter. Infringement of copyright was NEVER intended to be used against individuals, it was ALWAYS a matter of commercial exploitation (and things like public performance, counterfeit, selling copies, etc).
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bob, 7 Jul 2009 @ 11:21am

Lies and more Lies and God Damn Lies
Paragraph 2 should just state that the RIAA continues it's lies.
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Andrew D. Todd, 7 Jul 2009 @ 2:06pm

Antigua, Again.
There are islands in the Caribbean which have been in the "free trading" business, one way or another, for the last three hundred and fifty or four hundred years, ever since the days of Piet Hein and Sir Henry Morgan. I will repeat that: 350-400 years. On that time scale, the RIAA is nothing. Over time, the Islands evolved from one trade to another, as the circumstances dictated. Offshore banking and dummy corporations are simply two of their more recent businesses. It is simply inevitable that, as computers and electronics reach the point where they do not require too many special skills, and almost anyone can use them, the Islands will get involved.

So you go on a trip to one of the islands, and you pay a hundred dollars cash for a perpetual server account. Given the rate at which electronics are getting cheaper, you ought to be able to buy a perpetual server account for about three year's purchase, so your hundred dollars ought to buy a thousand gigabytes per month or thereabouts, the equivalent of maybe ten home broadband connections. A hundred dollars, paid in cash and in person, is essentially untraceable-- if you claim you gave the money to a cocktail waitress in the course of a night's drinking, no one can prove you didn't. For your hundred dollars, you get a piece of paper with a URL, a user-id, and a password on it, probably using the scratch-off system like a lottery ticket. Snailmail it to yourself, or to a good friend, back in the U.S. You then give sub-accounts to all your friends. When things become cheap enough, they cease to have paper trails. If a hundred dollars isn't cheap enough, wait a year, and it'll be fifty dollars... then twenty-five... then twelve, then six...

http://en.wikipedia.org/wiki/Piet_Pieterszoon_Hein
http://en.wikipedia.org/wiki/Henry_Mor gan
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Anonymous Coward, 8 Jul 2009 @ 12:29am

How much bandwidth would I need to have in order to distribute 1,700 ~5MB files to 2,000,000 people in the time frame this allegedly happened?
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aNOUTHER Anonymous Coward, 8 Jul 2009 @ 6:02am

Re: Re: slander
i have not seen the first spider man, but will be sure to download it latter today
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Ilfar, 10 Jul 2009 @ 10:09pm

The internet is for...
File sharing systems can also be used to share porn ^_^
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