p2pnet news view RIAA News:- In a ‘By the way,’ Jammie Thomas-Rasset’s ex-attorney, Brian Toder, has explained why he was so effusive in praise of Richard Gabriel (right), the Holme Roberts & Owen lawyer who, hired by the RIAA to go after Jammie, no holds barred, is now a judge.

A week today, Jammie and her new lawyer,  Kiwi K.A.D. Camara, are to go up against Vivendi Universal, EMI, Warner Music and Sony Music’s RIAA for the second time.

She’s the only one of the 40,000 or so people subpoenaed by the Big 4 extortion unit to actually appear before a judge and jury.

First time around, she was ordered to pay Big Music almost a quarter of a million dollars in ‘damages’. But judge Michael Michael Davis, who heard the case, declared a mistrial. He admitted  making 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”.

Now Round II will open on June 15.

Toder acted for Jamie in the first case, but withdrew, and in the story of his departure, he, “fulsomely praised RIAA lawyer Richard Gabriel, who was doing his best to see her pilloried, has pulled out,” we said, going on:

” ‘Gabriel was under consideration for a judgeship in Colorado and officials who were vetting the RIAA lawyer called Toder, seeking his opinion.’

” ‘I gave him a very favorable rating,’ he stated. ‘I think he’s a standup guy and a good lawyer. And I think he would be a good judge’.”

Now, in Recording Industry vs The People, Toder says it was all part of deal to avoid Jammie being landed with a judgment, “for hundreds of thousands of dollars more”.

“Ms. Thomas-Rasset’s previous attorney, Brian Toder, was kind enough to furnish us with the following statement concerning the recent flurry of motion practice,” says Ray Beckerman.

Toder states »»»

Regarding the RIAA’s motion to bar objections – you may recall that, in the first trial, plaintiffs moved, pretrial, for “summary adjudication” so they wouldn’t have to prove ownership, but we won that, so they had to so prove. They produced 400 pages of documents that they claimed proved ownership, but we successfully moved to preclude their admission, because they were not produced in discovery even though we served discovery demands calculated to cause their production.

So the RIAA had to put on live witnesses, but lo and behold, it turned out Virgin Records didn’t own the copyright to the one song that was theirs, so the morning the trial was to begin the title of the case was changed from Virgin Records v. Thomas to Capital Records v. Thomas. I consented to the name change provided the court agreed that we preserved our right to seek attorneys fees against Virgin Records which the court so agreed.

By the way, the reason I said a few nice things about Richard Gabriel was because he agreed that plaintiffs would give up their right to seek attorneys fees against Jammie Thomas, if we agreed not to seek attorneys fees against Virgin Records, a deal that prevented a judgment for hundreds of thousands of dollars more. I also said those things about Gabriel before I found out that, at the time we were arguing the making-available instruction during trial, he knew that the Atlantic Recording v. Howell decision in Arizona that plaintiffs relied upon had been vacated a few days earlier.

Stay tuned.

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June, 2009