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Thomas' Testimony and the RIAA's Near-Fatal Error

Soulskill posted more than 5 years ago | from the not-doing-themselves-any-favors dept.

The Courts 283

eldavojohn writes "The long and torrid trial of Jammie Thomas is in its second stage and in full swing. Yesterday, two major events took place: Thomas gave her surprising testimony and the RIAA was threatened for not disclosing new information to the opposing counsel. Thomas claimed she didn't know what KaZaA was before the trial started. She also admitted that the hard drive handed over to investigators was different than the one that was in her computer during the time of infringement. Her testimony from the first trial was that 'the hard drive replacement had taken place in 2004 and that the drive had not been swapped again since.' This is problematic because the new hard drive had a manufacturing date of 2005. The RIAA had its own troubles, almost losing all evidence from a particular witness when they added an additional log file to evidence without the defense being notified of it. The judge mercifully only removed that new evidence from the trial. It was related to whether or not an external hard drive was ever connected to the computer."

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innocent until proven? (4, Insightful)

_14k4 (5085) | more than 5 years ago | (#28361727)

If she is innocent until proven guilty - why does she have to give up her hard-drive and "prove" her innocence? Nobody is forced to prove innocence. The RIAA should be given the challenge, without her hard drive, of proving guilt. /shrug (IE: external records, etc.)

Re:innocent until proven? (4, Insightful)

whiledo (1515553) | more than 5 years ago | (#28361793)

She doesn't. But if does provide her hard drive and it provides evidence that conflicts with the RIAA evidence, it is more likely to throw the RIAA evidence into doubt.

It's kind of like an alibi. You don't have to have an alibi. But if they have a photo of someone who looks just like you from the security camera of a robbed bank and someone reports a getaway car with the same model as yours, having a strong alibi will go a long way towards defusing that evidence.

Re:innocent until proven? (2, Informative)

moderatorrater (1095745) | more than 5 years ago | (#28362799)

She doesn't.

I thought they were able to examine the drive by court order because they'd already gathered enough evidence of wrongdoing (through the ISP's logs) that she'd committed a crime. It's like saying that the police shouldn't be able to search your house because you're innocent until proven guilty: that's correct, until they've got enough evidence that the judge thinks the search is reasonable.

Re:innocent until proven? (1)

vux984 (928602) | more than 5 years ago | (#28362951)

I thought they were able to examine the drive by court order because they'd already gathered enough evidence of wrongdoing (through the ISP's logs) that she'd committed a crime.

What crime? Copyright infringement isn't a criminal offense. That's why the RIAA is suing her instead of a state prosecutor.

's like saying that the police shouldn't be able to search your house because you're innocent until proven guilty: that's correct, until they've got enough evidence that the judge thinks the search is reasonable.

Its a good analogy, but the police aren't involved. Search warrants and general special evidence gathering powers are not granted to random individuals suing you.

Re:innocent until proven? (5, Informative)

Anonymous Coward | more than 5 years ago | (#28361801)

Sorry, "innocent until proven guilty" only applies to criminal cases, not civil cases

Re:innocent until proven? (3, Insightful)

Z00L00K (682162) | more than 5 years ago | (#28362161)

In RIAA:s case everyone is guilty until proven innocent in the supreme court.

Re:innocent until proven? (0)

Anonymous Coward | more than 5 years ago | (#28362295)

In RIAA:s case everyone is guilty

FTFY

Re:innocent until proven? (1)

lorenlal (164133) | more than 5 years ago | (#28362833)

"All suspects are guilty. Period. Otherwise, they wouldn't be suspects would they?"

Re:innocent until proven? (1, Informative)

soulsteal (104635) | more than 5 years ago | (#28361811)

This is a civil proceeding, not a criminal one. "Innocent until proven guilty" only applies to criminal cases.

Re:innocent until proven? (1, Insightful)

LordLimecat (1103839) | more than 5 years ago | (#28361831)

The RIAA made accusations against her, and had certain evidence against her. Apparently a grand jury felt there was enough evidence for a case. Theres such a thing called discovery. Im not a lawyer and dont know the details, but it would seem that youre wishing for a type of justice system where noone is ever able to gather evidence if the defendent says "id really rather you didnt check to see if the murder weapon is located in my house, kthxbai".

All that aside, her innocence is highly questionable at this point.

Re:innocent until proven? (4, Informative)

twidarkling (1537077) | more than 5 years ago | (#28362233)

You don't need a grand jury for a civil case.

Re:innocent until proven? (1)

dwiget001 (1073738) | more than 5 years ago | (#28362263)

No, this is a civil trial.

There was no "grand jury".

The RIAA (not the "state") sued Thomas.

Re:innocent until proven? (5, Funny)

RemoWilliams84 (1348761) | more than 5 years ago | (#28362765)

The RIAA (not the "state")

I thought they were the same thing now.

Re:innocent until proven? (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#28362983)

Come on mods- that was funny.

Re:innocent until proven? (3, Interesting)

billcopc (196330) | more than 5 years ago | (#28362491)

Like so many people, you fail to distinguish criminal cases from civil cases. RIAA vs Anything is a civil case.

If I decide I don't like you (and you're off to a slow start), and I accuse you of defrauding me for some arbitrary amount, that does not grant me the right to barge into your home with an armed rent-a-cop and confiscate your bank records. I have to present reasonable proof by my own means, the court can't ask the defendant to self-incriminate.

Re:innocent until proven? (4, Insightful)

mea37 (1201159) | more than 5 years ago | (#28362795)

GP's lack of precision notwithstanding, you seem to be saying that there is no discovery in civil trials. If that is what you're saying, then you would be mistaken [wikipedia.org] .

Producing evidence demanded by the court is not self-incrimination; evidence is not testimony.

Re:innocent until proven? (4, Insightful)

spydum (828400) | more than 5 years ago | (#28361867)

Innocent until proven guilty, yes. However, it says nothing about being inconvenienced. That's the unfortunate side to our legal system: although we pretend the burden is on the prosecution to prove guilt, you still are left dealing with the issue, even if innocent. Expect legal fees, court dates, evidence collection, and with all of that comes time off of work, phone calls, stress, etc..

Re:innocent until proven? (5, Informative)

Mr. Underbridge (666784) | more than 5 years ago | (#28361887)

If she is innocent until proven guilty - why does she have to give up her hard-drive and "prove" her innocence? Nobody is forced to prove innocence. The RIAA should be given the challenge, without her hard drive, of proving guilt. /shrug (IE: external records, etc.)

First, this isn't a criminal trial. It's civil, so there's no concept of "innocence." So they only have to show that a preponderance of the evidence shows that she committed the acts in question. The burden of proof still lies with the plaintiff, but to show a preponderance of evidence, they still need *access* to the evidence.

RIAA shenanigans aside, this is how the justice system basically works: if you have some evidence, the judge will let you request other evidence that may be related to help make your case. Here, given the fact that an IP address linked to her was observed engaging in possibly illegal behavior, it's reasonable to request access to the hard drive to determine whether her computer was involved. Most people (and probably any judge) would see that as reasonable. On the other hand, if they requested a search of her car (for instance), that would probably get tossed because it's unlikely to be relevant.

What you're basically suggesting is that search warrants and discovery be made illegal. If that happened, lots of extremely illegal behavior would be impossible to prove. Enron comes to mind initially.

As always, I'm not a lawyer, I just play one in my mind.

And the evidence is compelling... (5, Informative)

nweaver (113078) | more than 5 years ago | (#28362089)

The RIAA's evidence is compelling.

The IP address was hers, with no WiFi, no NAT, and a password-protected Windows box

The username chosen was the one she's used online traditionally for 16 years.

The problem is, the nearly inevitible $100K verdict will not be justice, even if it is legally correct.

Re:And the evidence is compelling... (1)

hoggoth (414195) | more than 5 years ago | (#28362253)

> the nearly inevitible $100K verdict will not be justice, even if it is legally correct.

The judge in this case has stated that he thinks the size of the penalty is excessive, but he is bound by the current laws. He has urged congress to fix this.

Congress replied "but the RIAA is buying us lots of great stuff" - ok, that last part isn't true... Congress didn't SAY that in public.

Ah, the current law: the constitution (1, Interesting)

Anonymous Coward | more than 5 years ago | (#28362871)

A civil case cannot assign punitive damages unless proven they need to be made and if awarded go to the court, NOT the plaintiff.

And the constitution (the highest law in the land) says that the penalty cannot be excessive.

Where is the problem with the judge adjudicating that $500 is the penalty? It's stiff enough that Jammie will feel the pinch yet not so much she faces eternal punishment for what is, after all, a minor offence.

Re:And the evidence is compelling... (0)

Anonymous Coward | more than 5 years ago | (#28362275)

I was under the impression Jamie Thomas was a young lady. Recently married if memory serves me well. I think 16 years of traditional use would put her online at a very very young age...

Re:And the evidence is compelling... (1)

JCSoRocks (1142053) | more than 5 years ago | (#28362429)

Seriously, 1993!? Is this chick a hardcore nerd or what?

Re:And the evidence is compelling... (1)

NervousNerd (1190935) | more than 5 years ago | (#28362623)

Come on, a hardcore nerd would at least use BitTorrent and not get caught.

Re:And the evidence is compelling... (1)

nicolas.kassis (875270) | more than 5 years ago | (#28362971)

Usenet through some stolen server newb.

Re:And the evidence is compelling... (1)

Ractive (679038) | more than 5 years ago | (#28362663)

She's 32 (born in 77) so 16 years of traditional use put her online at 16 which is by no means a VERY VERY young age, although 1993 is certanly early in the internet timeline

Re:And the evidence is compelling... (1)

xouumalperxe (815707) | more than 5 years ago | (#28362715)

Or using the same handle online as she had used offline before that.

Re:And the evidence is compelling... (3, Interesting)

vlm (69642) | more than 5 years ago | (#28362305)

The RIAA's evidence is compelling.

The IP address was hers, with no WiFi, no NAT, and a password-protected Windows box

So far, not compelling at all. All they really have is they picked an ip address out of the air. Success is about as likely as picking a random ten digit number and filing a suit against whomever has it.

The username chosen was the one she's used online traditionally for 16 years.

Ah, that one item, combined with the rest, she's screwed. There's a lesson here about selecting usernames when doing something questionable.

Re:And the evidence is compelling... (2, Informative)

erroneus (253617) | more than 5 years ago | (#28362805)

Essentially, MediaSentry set up their own P2P client software and recorded the IP addresses of the computers hosting and serving complete copies of whatever material.

They didn't just pull an IP address out of the air. With that IP address, they went to the ISP that owns it and acquired the information about the person whose account was assigned the IP address. And from there, they reached her, filed suit and here we are.

Re:And the evidence is compelling... (3, Interesting)

Jah-Wren Ryel (80510) | more than 5 years ago | (#28362929)

Essentially, MediaSentry set up their own P2P client software and recorded the IP addresses of the computers hosting and serving complete copies of whatever material.

However, they never bothered to download the files - all they did is go by file name.

Re:innocent until proven? (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#28362091)

On the other hand, if they requested a search of her car (for instance), that would probably get tossed because it's unlikely to be relevant.

What if they requested her salad? Would that get tossed as well?

Re:innocent until proven? (2, Interesting)

zotz (3951) | more than 5 years ago | (#28362307)

[ If she is innocent until proven guilty - why does she have to give up her hard-drive and "prove" her innocence? Nobody is forced to prove innocence. The RIAA should be given the challenge, without her hard drive, of proving guilt. /shrug (IE: external records, etc.)

First, this isn't a criminal trial. It's civil, so there's no concept of "innocence." So they only have to show that a preponderance of the evidence shows that she committed the acts in question. The burden of proof still lies with the plaintiff, but to show a preponderance of evidence, they still need *access* to the evidence.]

I wonder if it would make sense to require the "beyond a reasonable doubt" level where statutory damages are in play. After all, if one side doesn't have to prove they were damaged, perhaps they should have to prove the other side was wrong beyond a reasonable doubt. ???

drew

Re:innocent until proven? (1)

Opportunist (166417) | more than 5 years ago | (#28362421)

Still, accuser bears the burden of proof. Unless something change there as well when I wasn't looking.

Re:innocent until proven? (1)

Mr. Underbridge (666784) | more than 5 years ago | (#28362505)

Still, accuser bears the burden of proof. Unless something change there as well when I wasn't looking.

Yes, but proof requires evidence, and evidence requires discovery. Otherwise if you require proof of culpability to simply discover evidence, you get circular.

Re:innocent until proven? (2, Informative)

Jason Levine (196982) | more than 5 years ago | (#28361905)

I'm not a lawyer, but I believe this is a normal part of evidence discovery. One side makes an accusation ("you shared songs illegally") and tells the judge that additional evidence resides on the defendant's hard drive. The judge, if he/she accepts the argument, can order that the defendant surrender the hard drive - usually to some neutral third-party for analysis. The defendant can refuse but then their behavior looks suspicious and they risk angering the judge. If you anger the judge, you can quickly find yourself in jail for contempt of court. (It's usually a bad idea to anger the person who holds your future in their hands.)

Re:innocent until proven? (1)

RendonWI (958388) | more than 5 years ago | (#28362219)

If she is innocent until proven guilty - why does she have to give up her hard-drive and "prove" her innocence? Nobody is forced to prove innocence. The RIAA should be given the challenge, without her hard drive, of proving guilt. /shrug (IE: external records, etc.)

How is this modded insightful, it is factually wrong.

Re:innocent until proven? (2, Insightful)

Zumbs (1241138) | more than 5 years ago | (#28362451)

Possibly because it is a good question?

Re:innocent until proven? (2, Insightful)

Opportunist (166417) | more than 5 years ago | (#28362251)

What does a hard drive prove, anyway?

Let's assume it is the system drive, let's furthermore assume it's Windows. Now, Windows stores the ID of every single storage medium (USB stick, external drives...) that you ever connected to the system. Should we now assume that if she has EVER plugged in such a device it's kinda-sorta-proof that she disconnected the offending drive before the trial?

Be serious. I could go to pretty much ANY halfway well used Windows PC and find out that at some point in its existance something was plugged into it. Doesn't prove jack. Likewise, the absense of offending files doesn't prove innocense either.

So unless you find exactly what you're looking for on the drive, you're in crystal-ball land. And that has no room in court.

Re:innocent until proven? (1)

greetings programs (964239) | more than 5 years ago | (#28362711)

This is a civil case

Re:innocent until proven? (1)

DaveV1.0 (203135) | more than 5 years ago | (#28362813)

Why does anyone have to give fingerprints, turn over documents and emails, submit to questioning, allow their property to be searched, etc?

It is something called evidence gathering and involves things like subpoenas, warrants, and depositions. Try learning a little about the law some time.

RIAA = Jews (-1, Flamebait)

Anonymous Coward | more than 5 years ago | (#28361743)

The RIAA are Jews, which is why you can't trust these thieving animals.

Welcome to Slashdot! (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#28361871)

Where we don't care about anything important like the global economic meltdown or Iran's fraudulent elections or militants in Pakistan or North Korea going insane.

Nope, all we care about is being able to unabashedly steal music and then yell at the people selling it when they try to protect their interests.

Way to rage against the machine, assholes! How about you try fighting for something truly meaningful instead?

Re:Welcome to Slashdot! (3, Insightful)

Anonymous Coward | more than 5 years ago | (#28362043)

People fight at the level and in the area they can. We try to fight corporate greed that has nothing to do with music and songs anymore. It's the suppression of our rights as customers. It's the fact that regular people are being targeted by the RIAA, being ruined and bankrupted by a broken justice system with obsolete laws that favors corporations to the detriment of their own customers.

Global economic meltdown cannot be fixed by computer nerds.
Fraudulent elections in Iran cannot be fixed by computer nerds.
Militants in Pakistan cannot be fixed by computer nerds.
North Korea going insane cannot be fixed by computer nerds.

Also, you're no better. Instead of writing a stupid post on a website, you should have tried to do something about the global economic meltdown, the fraudulent elections in Iran, the militants in Pakistan or North Korea going insane.

Re:Welcome to Slashdot! (3, Insightful)

spacepimp (664856) | more than 5 years ago | (#28362171)

Where we don't care about anything important like the global economic meltdown or Iran's fraudulent elections or militants in Pakistan or North Korea going insane.

Nope, all we care about is being able to unabashedly steal music and then yell at the people selling it when they try to protect their interests.

Way to rage against the machine, assholes! How about you try fighting for something truly meaningful instead?

You may not be able to see how this affects your civil liberties, or your rights to fair use and the right to not be treated like a criminal, however some people may not be ignorant to such things and for this they do not deserve your simplistic nickelodeon subjugation. (pwndhippy). What are you doing to make certain that there are no tainted elections in Iran? What did you do when there were tainted elections in North America? You should be grateful that people are out there trying to safeguard the civil liberties which you are too ignorant to protect, and I suppose they should be thankful when they have you marching in the streets in IRAN holding hands with the people and counting out their ballots. If you are not able or willing to do this yourself then you are just another armchair general sending someone elses children off to align the world to your moral compass. In other words little man, talk is cheap. So either make the changes your bitching about here, or can the John Wayne act.

Re:Welcome to Slashdot! (5, Insightful)

mcgrew (92797) | more than 5 years ago | (#28362467)

Where we don't care about anything important like the global economic meltdown or Iran's fraudulent elections or militants in Pakistan or North Korea going insane.

Read the masthead - we're nerds, not dorks, dork.

Nope, all we care about is being able to unabashedly steal music and then yell at the people selling it when they try to protect their interests

No, we are incensed at the mainstream music industry's blatant evil, including its bribery of Congress to get copyright lengths to insane levels. Personally, I will not respect any copyright on a work made more than a quarter century ago. Most of us DON'T infringe copyright, even copyrights on works that should be in the public domain.

You are free to consider anything I wrote moret than 20 years ago in the public domain, and anything newer as having a CC license.

Re:Welcome to Slashdot! (1, Interesting)

DaveV1.0 (203135) | more than 5 years ago | (#28362949)

No, we are incensed at the mainstream music industry's blatant evil, including its bribery of Congress to get copyright lengths to insane levels. Personally, I will not respect any copyright on a work made more than a quarter century ago.

So, rather than work to fix the law by taming your congresscritters, you prefer to break the law because it is easier than actually fixing the law and then whine when you get caught that the law is unfair. I am sure that will work out great and get things fixed up in no time.

Re:Welcome to Slashdot! (5, Insightful)

Jah-Wren Ryel (80510) | more than 5 years ago | (#28363007)

Worked for Gandhi.
Worked for Prohibition.
Worked for national speed limit of 55 mph.
Seems to be working for pot.

Are you aware of what "Fatal" means? (1, Funny)

gosand (234100) | more than 5 years ago | (#28361929)

Sheesh.

Re:Are you aware of what "Fatal" means? (0)

Anonymous Coward | more than 5 years ago | (#28361997)

Of course, the RIAA lawyers would have been honor bound to commit seppuku had the case been thrown out.

Re:Are you aware of what "Fatal" means? (2, Funny)

eosp (885380) | more than 5 years ago | (#28362049)

I'm having trouble parsing your sentence. Mentioning RIAA lawyers and honor in the same sentence confuses me.

Re:Are you aware of what "Fatal" means? (2, Funny)

mea37 (1201159) | more than 5 years ago | (#28362727)

Huh... So, for instance, you can't deal with: "The RIAA lawyers are not following the rules of evidence, Your Honor"?

Re:Are you aware of what "Fatal" means? (0)

Anonymous Coward | more than 5 years ago | (#28362071)

shit if only. that would be sweet if the losing lawyers had to kill themselves. in any trial.

focus on the actual issue (4, Insightful)

rarel (697734) | more than 5 years ago | (#28362011)

I'm as familiar with the case as anyone with Internet and access to news, so my opinion is just thatm, but I think that as far as innoncence goes Thomas is pretty fucked. There are lots of hints that she is actually guilty, and her apparent perjury certainly won't help.
I think the focus here should be for the defence (may actually be, I don't know) that the fees to pay be reduced to an "acceptable" level, meaning not the life-ruining, impossible-to-pay-unless-you-re-gazillionaire fees demanded by the RIAA.

She "stole" 24 songs. Let her pay a fine of a few hundreds bucks and fucking be done with it. Asking for half a million in damages should be laughed at by any sensible court system, and that's the real problem here.

Re:focus on the actual issue (2, Insightful)

rarel (697734) | more than 5 years ago | (#28362031)

Oops, it's actually quarter-million, my bad. (Still excessive though so the point still stands)

Re:focus on the actual issue (2, Insightful)

kenp2002 (545495) | more than 5 years ago | (#28362271)

The real issue that needs to be addressed in this case is damages. If a song sells for 99 cents on ITunes then that maximum damages should be scaled to it's retail value.

Even is she bootlegged 24 songs, lets just round to $1 for eash math we are look at $24 in damages and lost sales.

Even if 100 people downloaded each song then we are look at $2400 in damages. Tops.

Lets event dole out triple damages as a deterrent we are only at $7200 in damages.

Now if 5000 people downloaded via bitorrent several slices then we can prorate out $1 based on what percentages of the song they farmed out and how many people downloaded.

No matter how you spin it, I cannot see how a judge can ignore the retail value of a song in awarding damages.

$1 on iTunes = $250,000 max per infraction doesn't make ANY sense at all. Even with the RIAA's reasoning then, her damages should technically be IN THE BILLIONS based on number of downloaders (per infraction since hosting it on Kazaa makes every Kazaa users capable of downloading with several million users, you get the point). The fact they know the judge would find BILLION dollar awards against an individual comical, how damages in excess of 10k isn't comical I'll never understand I guess...

Re:focus on the actual issue (2, Informative)

ILongForDarkness (1134931) | more than 5 years ago | (#28362595)

Yeah it is pretty steep. According to US Code, Title 17, Chapter 5, Section 504, subsection c 1-2 the minimum fine is $750 per item + legal costs of plantiffs with the option of up to 1 year in jail. So the absolute minimum if found guilty would be $21000 + whatever the RIAA's legal expenses cost. With two trials now I suspect it would be tens of thousands in legal fees. Incidentally the maximum penalty is 30k per item which would be 720k + legal + 1 year, so she already got a deal. The law might be unfair but I think society should hold you to the penalties that were in place at the time of the crime. The legislation should be changed, but as ignorance is no excuse, one can say that she ran the risk of a enormous settlement when she chose to infringe (assuming she's guilty). Its like the guy that speeds to work everyday because the fine is only $100 and the chances of getting caught are slim. You takes your chances and you takes your bumps.

Re:focus on the actual issue (2, Insightful)

DJRumpy (1345787) | more than 5 years ago | (#28362605)

She shouldn't be charged with any criminal activities acted out by other individuals. She did not force them to download from her. She is responsible only for the content she downloaded. One could even argue that it is negligence on the record companies part for making the music so readily available to shared out if you follow their current punitive damage model of X gave to Y who gave to Z.

Should she be charged for copying copyrighted material? Yes

Should she be charged for other people copying the same material from her? No.

Re:focus on the actual issue (1)

kenp2002 (545495) | more than 5 years ago | (#28362733)

She shouldn't be charged with any criminal activities acted out by other individuals.

Umm isn't this a Civil case?

The punishment is harsher than civil (0)

Anonymous Coward | more than 5 years ago | (#28362945)

Heck, it's worse than criminal too!

And the lack of proof of harm is more appropriate to criminal censure than civil, where you get what you're owed, not what you think you deserve.

The minimum statutory damages was worked out based on a warehouse making dodgy copies for sale, NOT for P2P sharing. And the dodgy copy scenario is criminal too.

So this is applying a sanction intended against a criminal case to a civil one.

Why should the burden of proof go down if the penalty doesn't?

Re:focus on the actual issue (0)

Anonymous Coward | more than 5 years ago | (#28362743)

Because punitive damages [wikipedia.org] are not about actual value, they are about determent. In that regard, I would say $250,000 (or whatever it is) is certainly one big fucking deterrent. Of course, like you I think that is a ridiculous number even for punitive damages; that, however, is an issue for the judge/jury to resolve.

Re:focus on the actual issue (2, Insightful)

Opportunist (166417) | more than 5 years ago | (#28362315)

I'd ride that out to the supreme court if I got the chance. Hey, look at it that way: You're fucked. If you're found guilty, the RIAA will rip the pants off you. If you can incur legal fees in the vicinity of your life savings, at least the dough goes to the court and not the RIAA.

Re:focus on the actual issue (1)

Jah-Wren Ryel (80510) | more than 5 years ago | (#28362973)

If you can incur legal fees in the vicinity of your life savings, at least the dough goes to the court and not the RIAA.

You mean to the lawyers. The RIAA are basically an organization of lawyers.

Re:focus on the actual issue (0)

Anonymous Coward | more than 5 years ago | (#28362359)

24 songs are worth $222,000? That makes $9250 a song. TEN FUCKING THOUSAND DOLLARS. With absolutely no proof of "lost sales." If RIAA is able to drive this thing through - fuck record producing, they've got a real money-making machine in their hands. Just sue every poor bastard on the planet who has ever downloaded a song off the internet and they'll be the richest organization alive.

Re:focus on the actual issue (1)

Volante3192 (953645) | more than 5 years ago | (#28362751)

How much are they spending the lawyers on this case? The experts? How much time is this taking? Note they had to re-try the case, so this is round two on the same stuff. What about appeals?

Sure, they might win the battle in the courtroom and get their $222,000, but will Thomas-Harris actually be able to pay that? How much will the RIAA actually get out of this case? What's going to be the delta between RIAA costs and returns? Will they get compared to King Pyrrhus?

Just sue every poor bastard on the planet who has ever downloaded a song off the internet and they'll be the richest organization alive.

You can't get blood from a stone, no matter how hard you squeeze.

Even if Thomas-Harris loses this case, I don't think they're going to get their $222,000. I'd even be willing to bet what the RIAA gets won't even get them to break even. It's just pity every case can't go to trial with sympathetic, pro bono lawyers. THAT would ruin the RIAA. Even if they win every case, I find it hard to believe their awards would outweigh the costs by a significant enough margin to continue pursuing this business method.

This will be argued to symantics (3, Insightful)

DontLickJesus (1141027) | more than 5 years ago | (#28362051)

The HD manufacturing date could be argued out. Those understanding HD recovery also understand that there are scenarios where she could meet her legal requirements and provide a different drive, or she could have been giving the failure date, not the replacement date. We must also take into consideration that a) maybe she isn't the one who swapped it and b) this is a sticker, not digital info from the drive.

All that aside I agree she has her work cut out for her. On firs tread it seems both sides may be pushing the law a bit. I do have a couple questions though:

Has the question of which Kazaa client was installed been answered? There were malware versions of the client, so I would assume these would need to be ruled out.

Has the possibility of the Windows XP "at hack" been resolved? I know this is a real stretch, but those understanding this fairly simple exploit could get around her password. If the computer had been exploited in anyway, it's completely reasonable that the username on Kazaa would match the machine username.

It is obvious the RIAA has set out to make an example of Thomas. If she's guilty then it's understandable that they had to choose -someone-. However, Americans have proven our disregard for our credit scores. All this will prove is that they can hold a big slot on your report, and my assumption is most creditors would begin to glance over them like medical debts if the RIAA makes them common.

-rant over-

Re:This will be argued to symantics (1)

Opportunist (166417) | more than 5 years ago | (#28362363)

Courts tend to go by a "most likely" reasoning. What's most likely to be the truth? Someone hacking her PC, installing Kazaa and downloading files, or her doing it herself?

I'm not really a friend of the RIAA or their tactics, but even I can't come up with a good excuse for scenario A...

Re:This will be argued to symantics (4, Insightful)

networkBoy (774728) | more than 5 years ago | (#28362719)

I can.
I had a PC that was infected with malware.
It was turned not into a spam zombie, but into a torrent seeder and FTP server.

Found the stuff in a hidden folder disguised to look like a Java update in the windows folder.

In my case it was disney movies and music, not CP (thank goodness), but the same thing could have happened to her. Would jive with the HDD replacement too. I noticed the issue because the machine lagged like a bitch, and it all looked like OS related problems. I could see someone installing a new HDD to solve that type of "problem".
-nB

Re:This will be argued to symantics (2, Informative)

canajin56 (660655) | more than 5 years ago | (#28362717)

RTFA. It's not just the one date. It's also the fact that Best Buy KNOWS when it was replaced, and it was AFTER she was informed she was being sued. The chronology is set. It happened in this order. 1) (Unlicensed?) investigators find that this user account "tereastarr@KaZaA" is sharing a whole lot of music. For some reason they think it's a good idea to PM this account through KaZaA and say "You're busted!". 2) AFTER THAT HAPPENED her HD "Breaks" and she takes it to Best Buy for THEM to replace it. They do so. This is confirmed by her receipts. 3) She says under oath and says it happened a year before the alleged infringement. The manufacture date strongly implies this is wrong, the receipts prove beyond any doubt that this is wrong. Did she just remember wrong? It was Feb 2005, that's pretty close to 2004. That alone isn't very damning. What's damning is that the user name "tereastarr" is the same as her PCs login ID, and her e-mail address. And right after they told this account it was being sued, she had her HD replaced and the original destroyed. "A hacker broke into my XP box and installed KaZaA and used it to share songs, and they used my own username to frame me, then by sheer coincidence when my PC got messaged I was being sued, which I didn't notice, my HD broke seconds later and I had to replace the drive, and since I didn't even get the message there was no need for me to remember exactly when it happened relative to the alleged infringement" doesn't strike me even as reasonable doubt, and you don't even need that much for a civil case!

Replacement hard disk (1, Insightful)

Anonymous Coward | more than 5 years ago | (#28362053)

FTA: "Why was Thomas-Rasset's password-protected computer running KaZaA in February 2005, and with the "tereastarr" name, if she had not set up the software? And since no one else had the password, and since her kids were young and had a computer account of their own anyway, who might possibly have used a machine in her bedroom to share thousands of songs without her knowledge?"

Doesn't the replacement HD cut both ways. If the drive was replaced (assuming no recovery) how can we be know her "tereastarr" account on the original drive was password protected, or that her kids had their own account.

Maybe she wised up on her new install.

Wow, I'm actually rooting for the RIAA (-1, Troll)

Rogerborg (306625) | more than 5 years ago | (#28362113)

If you've ever worked with the Evil Poor, the first thing out of their mouth is a denial, even when you're not accusing them of anything. It seems that Jammie here would screech "Oh no you DID-UN'T" (snap, snap) if you so much as asked her the time.

Look, the woman did what the RIAA said she did. She knows it, the RIAA know it, we know it, the lawyers know it, even the judge must be tired of hearing the dissembling by now. At this point it's just turned into a game of who's got the most stamina, and I reckon Jammie and "Kiwi" can spout "Nuh-HUH" from now until Doomsday.

Re:Wow, I'm actually rooting for the RIAA (0)

Anonymous Coward | more than 5 years ago | (#28362193)

First off, do you actually know this woman?

It'd be gladly appreciated if you wouldn't throw around what seems like racial insults. kthx.

Re:Wow, I'm actually rooting for the RIAA (0)

Anonymous Coward | more than 5 years ago | (#28362303)

I agree, actually, though I hate to admit it.

BUT - the more serious issue is not the guilt, but the punishment. Chances are she's going to be hit with some kind of multi-hundred-thousand dollar penalty for the file sharing, before lawyers' fees. Is that really justice?

Thanks! (0)

Anonymous Coward | more than 5 years ago | (#28362143)

Thank you, eldavojohn, for your more evenly balanced presentation! I appreciate it, it's far less anti-RIAA then has been the usual on slashdot.

Re:Thanks! (1)

Volante3192 (953645) | more than 5 years ago | (#28362807)

Well, while we're rooting for Thomas-Harris, it's hard to argue against the point that the RIAA is actually doing this RIGHT for a change.

A trial, evidence, witnesses, discovery.

It's a far, far, FAR cry from their boilerplate $3k extortion letter.

What is Thomas' Endgame? (4, Interesting)

ultraexactzz (546422) | more than 5 years ago | (#28362165)

In this case, a guilty verdict isn't at all a bad thing, if the damages are reasonable. If damages of $200,000 or more are awarded, then the RIAA strategy is validated. They prove that they can win, and that they can win significant damages. It would also give credence to their "Settle or we'll sue for all your money" letters, as an award of that scale could easily wipe anyone out, house and all.

For Thomas, the endgame is the reverse. I'm not at all sure she can show that she is innocent, given her testimony - which is a shame, but not unexpected. Her goal must be to somehow limit the damages to a reasonable amount. Doing so sets precedent - if the RIAA can expect only a few thousand for a case that goes to trial, then it ceases to be profitable for them to try. The settlements will become more affordable, or may go away - why spend $1,000 on an attorney to get a $500 settlement back?

Were I in Thomas's place, I would be far more worried about the Perjury thing, which is an actual criminal offense. She said one thing under oath, and then said another thing under oath, and the statements are not compatible. So, we're in a position where she might win the trial (or get reduced and affordable damages), but end up in jail with a massive fine for lying under oath. Not good.

Re:What is Thomas' Endgame? (2, Informative)

twidarkling (1537077) | more than 5 years ago | (#28362319)

First, felony perjury is rarely prosecuted. Secondly, the RIAA has repeatedly said that it's not about the money. It's about the fear. (paraphrasing, of course). They want to make anyone afraid that if they get that letter, they could face years in front of a court, and lose everything to legal fees, judgement of insane proportions or not.

Re:What is Thomas' Endgame? (1, Interesting)

Anonymous Coward | more than 5 years ago | (#28362455)

The reason perjury is rarely prosecuted is because of the element of "knowingly" giving false testimony. Just showing the testimony isn't wrong is not enough. Further, it's also fine if someone says one thing then says the exact opposite in the same proceeding - the words aren't cast in stone at the moment they are uttered and a simple "I apparently was mistaken" takes care of the perjury matter. The damage to credibility is the part that lawyers are interested in - as in "she said X, then she said Y and says she was mistaken about X, how can you REALLY believe anything she said?"

Re:What is Thomas' Endgame? (1)

hardwarejunkie9 (878942) | more than 5 years ago | (#28362903)

Of course, perjury is pursued when other methods have failed. After all, look at the legal issues surrounding the classic Clinton-Lewinsky scandal. They weren't pushing Clinton for his affair, they had no real grounds or legal violation to. They were pushing him for perjury. In this case I wouldn't be surprised if some mention is made of it, but honestly it would take much more interest for it to stick.

why don't the RIAA sue the ISPs (1)

rs232 (849320) | more than 5 years ago | (#28362183)

Why don't they sue the Internet companies for hosting the material and facilitating illegal copying. Instead of suing end users, grannies and dead people [theregister.co.uk] ? Or did the CAN-SPAM [cnet.com] act indemnify the ISPs.

Re:why don't the RIAA sue the ISPs (0)

Anonymous Coward | more than 5 years ago | (#28362261)

two words: common carrier.

Re:why don't the RIAA sue the ISPs (1)

erroneus (253617) | more than 5 years ago | (#28362843)

One word: Myth.

While I agree that ISPs *should* be common carrier, they aren't. And now you open up a whole bunch of other unrelated stuff. If ISPs were common carrier, there would be no debate over network neutrality.

Re:why don't the RIAA sue the ISPs (1)

twidarkling (1537077) | more than 5 years ago | (#28362351)

I believe there's been multiple rulings that ISPs are not responsible for the data that flows through their servers, so long as they're not personally hosting it. Even then, it's damned hard to do anything if they ARE hosting it.

Re:why don't the RIAA sue the ISPs (1)

DaveV1.0 (203135) | more than 5 years ago | (#28362695)

Why don't they sue the Internet companies for hosting the material and facilitating illegal copying. Instead of suing end users, grannies and dead people? Or did the CAN-SPAM act indemnify the ISPs.

The ISP was not hosting the material. Jamie was hosting the material. Good enough reason for you?

Or, are you suggesting that ISPs be held accountable for the information on their customer's computers?

Merciful? (0, Troll)

aarenz (1009365) | more than 5 years ago | (#28362269)

"The judge mercifully only removed that new evidence from the trial. It was related to whether or not an external hard drive was ever connected to the computer."

Looks from this, that you want the RIAA to win the case with last minute evidence. What side is the poster of this on?

Re:Merciful? (2, Insightful)

Red Flayer (890720) | more than 5 years ago | (#28362403)

Looks from this, that you want the RIAA to win the case with last minute evidence. What side is the poster of this on?

On the side of truth, justice, and the American way[1]?

The judge was merciful to the RIAA, and exercised good judgment in tossing the improper evidence, while retaining the good evidence. That was fair.

Or would you prefer that judges should capriciously choose what evidence to allow based on only which "side" they are on?

[1] The American way, excluding economic hegemony, smug condescension, conspicuous levels of consumption, big asses, cowboy hats, chain restaurants, big-assed cars that seat 4.2 times the number of passengers actually in the car, military action to support economic interests, plausible deniability by offshoring torture, pollution, and awful labor conditions, and apple pie. Not that there's anything wrong with apple pie. It just doesn't fit well with this case.

Re:Merciful? (-1, Troll)

Anonymous Coward | more than 5 years ago | (#28362461)

This paid-off assfuck of a corrupt judge has already left the completely illegal - as in impersonating an officer of the court illegal - Mediasentry "evidence" in.

You have to wonder who paid for that new pool that they're breaking ground for in his backyard next week...

Re:Merciful? (1)

aarenz (1009365) | more than 5 years ago | (#28362591)

I guess I was addressin the poster's use of the word, not the actual act. I do not know exactly what she did or did not do, but I assume the expense for the parking for the members of the court would cover the real losses that the RIAA is trying to recover, so the whole thing is kind of a circus.

Re:Merciful? (1)

nedlohs (1335013) | more than 5 years ago | (#28362619)

There is a history of the RIAA overstepping the bounds of the legal rules and fairness in these cases.

One way to try and put a stop to that is to punish the instances harshly. Throwing out all the testimony due to one additional statement would be one way of doing that.

Just like we throw away all the evidence involving the gun in a murder trial if it was obtained via an invalid search. Clearly letting the murderer go free is an extreme measure to take, but it's the best way to convince the police to not do that.

So letting an evil file sharer get off free might be an extreme measure to take, but it might be the best way to convince the RIAA to not do that.

Of course this case sounds pretty slam-dunk to me, they could win without that particular evidence and testimony. The defendant has hung herself out to dry all by herself.

Re:Merciful? (1)

nedlohs (1335013) | more than 5 years ago | (#28362535)

Seems obvious to me that "mercifully" was used from the point of view that the judge gave a smaller penalty than he could have, the very definition of merciful. Nothing to do with which side the poster wants to win the case at all.

Did she profit from any of this infringement? (1)

SCHecklerX (229973) | more than 5 years ago | (#28362383)

No. So why is the RIAA able to pursue this crap in the first place? *sigh*

Re:Did she profit from any of this infringement? (1)

MightyYar (622222) | more than 5 years ago | (#28362597)

Unfortunately, we have copyright laws which apply to non-commercial use.

I'd much rather that weren't true. It should be legal for me to copy a CD and hand it to my mother. Few would find a moral problem with this, and yet we have laws which forbid it.

Re:Did she profit from any of this infringement? (2, Insightful)

selven (1556643) | more than 5 years ago | (#28362613)

Not that I approve of the RIAA, but the amount of profit you make is irrelevant to the damages suffered by the victim. So stealing $1000 is not less bad if you burn all the money right after.

Re:Did she profit from any of this infringement? (0)

Anonymous Coward | more than 5 years ago | (#28363001)

Copyright infringement isn't stealing.

Re:Did she profit from any of this infringement? (4, Insightful)

GreatAntibob (1549139) | more than 5 years ago | (#28362647)

What does her personal profit have to do with it?

If a new popular book gets published (say a surprise 8th Harry Potter or something), and I print my own version and just give away copies on the street, that's still infringement, even if I don't personally profit (actually, a loss with the printing costs).

It doesn't matter if I've personally profited, the publishing company (and the author and other associated people) have lost money on my infringement.

There are questions about how much the damages should be (certainly lower than what the RIAA is asking for) but IF infringement is proven, then there should be a punishment for it.

Maybe it works differently in some other parts of the world, but that's certainly the way it works on the US and Europe. That's the whole point of having copyright protection in the first place.

Re:Did she profit from any of this infringement? (1)

DaveV1.0 (203135) | more than 5 years ago | (#28362735)

Because infringement is still infringement. They have the legally granted copy rights to the works and they are protecting their legally granted rights. Whether she profited from the copying is irrelevant.

If I steal a CD from Walmart... (3, Insightful)

BlueKitties (1541613) | more than 5 years ago | (#28362829)

(Assuming a first time offense) At worst, I'll probably spend a few months on probation and lose about $1,000 in legal fees/fines. If I download the same CD online (which, for the record, didn't cost the record company shiping or a CD) I'll get slammed with hundreds of thousands of dollars in fines. I don't care if she's guilty -- she shouldn't suffer any more than someone who stole the same music off a store shelf.

Re:If I steal a CD from Walmart... (1)

erroneus (253617) | more than 5 years ago | (#28362899)

It's not the downloading they are punishing. It is the sharing. So to complete your analogy, compare stealing a CD and giving it to someone versus downloading the same CD and sharing it with countless hundreds or thousands of faceless strangers.

While I hope for Thomas's success on this and damn the RIAA straight to hell, it is important that you have the facts and technicalities straight.

Re:If I steal a CD from Walmart... (2, Insightful)

hardwarejunkie9 (878942) | more than 5 years ago | (#28362939)

Sadly, legal logic doesn't always follow would would be a sensible point. In this case what's being tried isn't the CRIMINAL act of stealing a cd, which gets legal protections on excessive punishment, but a civil case in which the idea of damages is so inflated. So instead of being tried for stealing music, she's being tried for the damage she did by her method of stealing it. I agree with you, but this is fully a three-ring-circus at the moment.

Re:If I steal a CD from Walmart... (1)

jayhawk88 (160512) | more than 5 years ago | (#28362987)

If you, however, stole several thousand CD's from Wal Mart, that could potentially become a felony (depending on the total dollar value of the theft), and would carry with it much more serious punishment (including a substantial fine most likely) then the theft of one CD.

Torrid trial? (1)

agent420 (1046380) | more than 5 years ago | (#28362881)

They downloaded the trial from BitTorrent?
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