RIAA faces big trouble with new Thomas trial
p2pnet news view | RIAA News:- In an unusual statement, Brian Toder (right), Jammie Thomas’ former lawyer, has promised his firm, “will never seek any additional payment from Jammie Thomas for the considerable work we have done in her case”.
Toder had been representing Thomas, a Minnesota mother said by Vivendi Universal, EMI, Warner Music and Sony Music’s RIAA to have been an illegal online file sharer, on and off for about 18 months.
He recently pulled out, claiming he was owed $129,485 “for time that will never be recovered, coupled with the likelihood that a similar, additional amount will be incurred if ordered to continue representation of defendant who originally caused [words missing] this firm by means of false representations”.
This was the second time he’d decided he could no longer be her attorney.
Now, having maligned Jammie by accusing her of “false representations” without explaining what he meant, “If we are to receive any funds from this case, it will be solely from plaintiffs if Ms. Thomas-Rasset ultimately becomes the prevailing party which we believe is highly possible given the caliber of the counsel and amici on her side,” Toder says.
It isn’t clear if the promise his firm “will never seek any additional payment” means Toder and his colleagues are leaving the $129,485 on the books and will ultimately expect payment from Jammie, but will not expect more on top of that; or, if he means payment he’s already received is sufficient.
Toder, while acting for Jammie, also fulsomely praised RIAA lawyer Richard Gabriel, who was doing his best to see her pilloried.
Gabriel was, “under consideration for a judgeship in Colorado and officials who were vetting the RIAA lawyer called Toder, seeking his opinion,” said p2pnet. “I gave him a very favorable rating,” Toder said.
“I think he’s a standup guy and a good lawyer. And I think he would be a good judge.”
In his letter of departure, Toder thanks Recording Industry vs The People’s Ray Beckerman, “for the help he gave us in acquiring local counsel, the help he has and continues to give others, but mainly for his tireless and noble efforts championing the cause against the destructive course of action taken by the RIAA”.
He adds, “Finally, I hope we are remembered not for withdrawing, but for the considerable time and expense we provided before we could no longer afford to stay in Jammie’s fight. Her interests are now well served, and we wish her well.”
Vital considerations
On June 15 Jammie will, for the second time, take on the Big 4 record labels, Vivendi Universal, EMI, Warner Music and Sony Music, and their RIAA, but this time K.A.D. ‘Kiwi’ Camara, a young lawyer from Houston, Texas, will be in her corner, representing her pro bono.
The term usually means professional work undertaken without payment and often, people represented by lawyers acting for them in this way are still responsible for expenses of various kinds.
But Kiwi has promised he’s working for, and with, Jamie for free all the way down the line.
And there are additional, vital, points to be borne in mind.
The RIAA has subpoenaed approximately 40,000 innocent people, including very young children, across America, accusing them of being massive online illegal distributors of copyrighted music.
Of this staggering number, only one person — Jammie — has actually appeared in court, after which she was ordered to pay the labels almost a quarter of a million dollars in ‘damages’.
But even that turned out to be a disaster for the RIAA.
As p2pnet posted »»»
… judge Michael Michael Davis, who heard the case, declared a mistrial after admitting he’d committed a, “manifest error of law” when he told the jury the, “act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without licensefrom the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown”.
Technically inept judges
None of the RIAA file sharing cases ask, simply, Did they or didn’t they?
They all make outright accusations based on technical ‘evidence’ produced principally by MediaSentry, the seemingly incompetent Private Eye ultimately fired by the RIAA.
The Big 4 have employed MediaSentry bafflegab to confuse (to be charitable) technically inept judges, but have nonetheless been singularly unable to use MediaSentry testimony, or testimony from other bumbling RIAA ‘experts’ such as Dr Doug Jacobson, to deliver proof of wrongdoing of any kind by anyone.
However, not only has Jammie found a new lawyer, she also now has an expert witness of her own – assistant professor Yongdae Kim of the University of Minnesota
His appearance is made possible by a $3,000 grant from the Expert Witness Defense Fund administered by the Free Software Foundation, and which Beckerman helped to set up.
Not only but also …
The fact Jammie vs the RIAA, Part II, is going ahead on June 15 as planned may be to the serious discomfiture of RIAA hired lawyers, who may well have far rather preferred to drag things out with delays, which would have been the case had Kiwi not come forward so quickly.
One might have thought her new lawyer, the youngest person to graduate from Harvard Law school with honors, would have needed weeks or months to bring himself up to speed before taking on the RIAA.
But, he’s already prepared a lot of the groundwork via another of his cases,” p2pnet posted, going on »»»
And there’s even a connection with Harvard professor Charles Nesson who’s leading a team of law students in the RIAA vs Joel Tenenbaum case.
“With Professor Charles Nesson of the Harvard Law School, we are defending Brittany English, a junior and cheerleader at Case Western Reserve University in a prosecution brought by the recording industry under the Copyright Act for allegedly illegal music downloading and sharing,” he says on the site he runs with his partner, Joe Sibley, an ex-US Army Ranger, and another Harvard graduate.
Brittany is counter-suing the RIAA, its members, and the individuals who organized its litigation campaign, KAD says, continuing »»»
Armed with the threat of $150,000 in statutory damages per illegal download (a $1.5M judgment in a small, 10-song case, where the actual damages are about $10, the price of 10 songs on iTunes), the recording industry has obtained more than $100M in settlements from individuals like Brittany.
We are asking the courts to declare that statutory damages like these — 150,000:1 – are unconstitutional and that the RIAA’s campaign to extract settlements from individuals by the threat of such unconstitutional damages is itself unlawful, enjoin the RIAA’s unlawful campaign, and order the RIAA to return the $100M+ that it obtained as a result of its unlawful campaign.
But that’s not all.
Ray Beckerman points out a key element in the protective order in SONY BMG Music Entertainment v Tenenbaum, was Judge Nancy Gertner’s direction that »»»
… the Examining Expert shall be required to disclose both the methods employed to inspect the hard drive and any instruction or guidance received from the Plaintiffs.
Ray adds »»»
To date, in the hundreds of consolidated RIAA cases assigned to her, Judge Gertner has rendered thousands of rulings based upon so-called evidence procured by MediaSentry, without ever asking for that same type of disclosure.
In fact, the RIAA and MediaSentry have steadfastly maintained that their methods are secret and “proprietary”.
While they are permitted to have whatever “proprietary” “secrets” they want, it is contrary to Federal law to maintain a federal litigation based upon such material.
Although it is routine in federal litigation to mandate such disclosure for any scientific or computer-based evidence, it is novel in RIAA litigation, since the courts have generally bent the rules for the RIAA, in view of the weak or nonexistent legal representation of defendants.
Let us hope that era is coming to an end, and that the RIAA will have to prove its cases just like any other plaintiff in a federal litigation has to prove its case.
And let us hope that Judge Gertner will apply the same standards to the “evidence” submitted to her from MediaSentry, Doug Jacobson, and any other RIAA “expert”.
Indeed.
Definitely stay tuned.
Jon Newton – p2pnet
May, 2009
Use free p2pnet newsfeeds for your site. It’s really easy! Subscribe to p2pnet.net | | rss feed: http://p2pnet.net/p2p.rss | | Mobile – http://p2pnet.net/index-wml.php
Net access blocked by government restrictions? Use Psiphon from the Citizen Lab at the University of Toronto. Go here for details.
May 21st, 2009 at 7:34 pm
From Ray’s site http://recordingindustryvspeople.blogspot.com/2009/05/motion-for-substitution-granted-in.html
Thanks for all of your hard work Brian! By Anonymous Anonymous, at May 20, 2009 6:55:00 PM EDT Mr. Toder may have spent lots of time and tried hard here. But would the second trial have even been necessary and might Jammie have even won outright if Mr.Toder had done the most basic case law research in the first trial? Did he even look at Nimmer’s treatise? As Judge Davis had to point out himself on May 15, 2008: The Court is concerned that Jury Instruction No. 15 may have been contrary to binding Eighth Circuit precedent. In National Car Rental System, Inc. v. Computer ssociates Int’l, Inc., the Eighth Circuit stated that “‘[i]nfringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.’ 2 Nimmer on Copyright § 8.11[A], at 8?124.1.” 991 F.2d 426, 434 (8th Cir. 1993). This statement appears to require that actual dissemination occur in order to infringe the distribution right under the Copyright Act. Neither party presented this Eighth Circuit case to the Court.
______________
I agree with Scott and Anonymous Lost in Thought. Brian made an important contribution. He was man enough to stand up for a defenseless woman, and spend countless hours on her behalf. Being a trial lawyer, and knowing how many decisions have to be made, I know that it is an impossible task to second guess a trial lawyer. Are there things he could have done that he didn’t do? Undoubtedly. Were they things he should have done? We’ll never know, because we do not have as much knowledge of the case, or of what was going on in the case, as he did. He never signed on to handle the case without getting paid, so he was perfectly within his rights to withdraw from the representation. And Jammie never challenged that. The RIAA smelled blood in the water here, and swooped in on him in a way they have never before done in any other case. They probably spent more than half a million dollars on this case. All they ever got out of their ludicrous verdict was a lot of bad publicity. So as far as I am concerned, all respect to Brian Toder. And all respect to his valiant client Jammie Thomas. And all respect to the firebrands who have taken up the cudgel against the prince of darkness Matthew Oppenheim, and his running dogs.
May 22nd, 2009 at 10:45 am
“All they (RIAA) ever got out of their ludicrous verdict was a lot of bad publicity”.
They only suffer from some bad publicity on the net.
Almost everyone I talked to on the street who had any knowledge of this case only know that somebody somewhere got fined over $2G for sharing some songs. ‘Cause that’s all they ever recall reading in the newpaper.
They truly believe that sharing songs must be theft or that wouldn’t have happened in a court of law.
(And those people are all Canadians!)
If it was the RIAA’s plan to send a chill over internet song sharing, they have accomplished this.
Was it worth it to them? Who will do the math?
Do they act alone or is there quiet help from others who share an interest in Internet Chill?
May 22nd, 2009 at 12:46 pm
“They only suffer from some bad publicity on the net.”
But the only thing that matter these days is the net as far news are concerned.
A know only few people that still take serioulsy the news from the mass media.
This is one of the mistake the corporate parasites are making. They still believe that people watch the news on TV and take it serioulsy.
May be you are talking about the older generation who bring us the curently dying entertainment industry of thugs?
May 22nd, 2009 at 4:12 pm
““They only suffer from some bad publicity on the net.”
But the only thing that matter these days is the net as far news are concerned.”
That’s so obvious to you & me and the people who read news like this on p2pnet.
Most people are online now, but are they reading news? I’m not so sure.
I would love to see a study about the level of public general knowledge about the whole file-sharing/downloading/”stealing” issue.
May 25th, 2009 at 10:29 am
“They truly believe that sharing songs must be theft or that wouldn’t have happened in a court of law.
(And those people are all Canadians!)”
Hey, Bub, I take exception to that crack. I’m a Canadian and I know that file sharing is NOT illegal and I also don’t believe a word those anal types from the RIAA and the MPAA espouse. We’re not the ones suing our own customers because our business model is from the 1950’s and we’re still watching black and white TV showing reruns of Howdy Doody and Buffalo Bill. The fault if any lays at the feet of our Politicians who, for some reason, refuse to grow a pair and stand up to those morons. I know if it were me and they were screaming that file sharing is illegal and if we didn’t toe the corporate mark that we’d have some type of economic sanction against us. Like we don’t already? Look at the softwood lumber fiasco and their whining about that!!
If I was PM of this country I can guaran-damn-tee that the minute those RIAA dorks made one demand they’d be marched out of Canada and declared Persona Non Grata and I’d call Biden myself and tell him to keep his bribes and lobbyists on his side of the border as Canada is a free and sovereign nation unto itself and we don’t kowtow to morons who think that they are the only power in the Universe.