p2pnet news view RIAA | P2P:- The people in charge of Vivendi Universal (France), Sony (Japan), EMI (Britain), and Warner Music (US), their the RIAA (and similar ‘trade organisations,’) and the lawyers who advise and work for them, are scum.
Edgar Bronfman jr, the scion of the unimaginably wealthy Canadian family which, like other now powerful clans, made its money during the days of alcohol prohibition, runs Warner Music.
Said the CBC’s Life and Times in 1997 »»»
The Bronfman empire flourished, selling liquor to American bootleggers, during the 1920s prohibition years. By the time he died in 1971, Bronfman was a billionaire in control of the world’s largest distillery.
Edgar Bronfman jr is a leader among those whose greed quite literally turns the lives of families across America upside down. At the same time, his company is trying to pass off Choruss, a cynical licensing scheme, as The Answer.
By his own admission, his children have also shared music online. But they apparently received little more as punishment than a lecture on bright lines.
There are, however, genuinely bright lines, and they’re drawn not by Bronfman and others of his ilk, but by people such as Jammie, and Tanya Andersen, Patti Santangelo, and Marie Lindor, and the other completely innocent women, for the most part, and their children, who are held up by the labels, which themselves epitomise corruption, as criminals and thieves.
Online, I’ve figuratively met, and talked with, highly influential lawyers who privately deplore the way the labels are going about their businesses but who, because they don’t want to burn any bridges — or because of professional ‘courtesy,’ perhaps — refuse to speak out openly.
But there’s a handful of legal practitioners who not only try to defend the victims of the outrageous corporate music attacks on the very people who keep them business, but who, without fear, speak out against them.
Ray Beckerman, the New York lawyer who runs Recording Industry vs The People, is at the very top of this select group.
Today, of the Jammie Thomas-Rasset farce, “The normal world in which we litigators travel is that both sides are represented by lawyers, and there are a judge and jury to act as umpires, and cases are decided according to time tested principles of substantive and procedural law,” he says, continuing »»»
The RIAA cases, however, proceed in a parallel universe, where the plaintiffs are overlawyered, the defendants underlawyered, and the Courts misled by both.
The courts have not received the benefit of the crystallization of issues that would normally result from the proper working of our judicial system, resulting in a parallel universe which, to an outside observer, might look like litigation, but is not.
So I thought to myself : how would this case have played out in the real world, rather than in the parallel universe?
Plaintiffs failed to introduce an iota of evidence that Jammie Thomas-Rasset had made a single copy using Kazaa.
Result: directed verdict on reproduction right.
Plaintiffs failed to introduce an iota of evidence that
- any copy was disseminated to anyone other than MediaSentry
- any dissemination to the public occurred
- any sale, other transfer of ownership, rental, lease, or lending occurred.
All of the above are necessary components to the distribution claim.
Result: directed verdict on distribution right
- Under Fed. R. Civ. P. and Fed. R. Evid., MediaSentry was an expert; therefore testimony barred for failure to provide expert witness disclosure;
- Alternatively, MediaSentry documents and testimony barred for failure to satisfy Daubert and Fed. R. Evid. 702;
- Jacobson testimony barred for failure to satisfy Daubert and Fed. R. Evid. 702
Since he was a rebuttal witness, Court was wrong to prejudge what defendant’s expert could and could not testify about; the scope of his testimony could not be determined until after plaintiffs’ case had been put in.
Assuming the Court denied or reserved decision on defendant’s motion to dismiss at close of plaintiffs’ case, we reach the following:
Statutory Damages-entitlement-jury instructions
- The jury should have been instructed that a work is an album, and that multiple mp3′s from one album constitutes a single work.
- The jury should have been required to make findings as to (a) the date defendant commenced using an online media distribution system (Kazaa) and (b) the copyright registration effective date of each work they find was infringed.
- The jury could have been instructed that no statutory damages could be awarded as to any work whose copyright registration effective date was subsequent to the date of defendant’s commencement of use of Kazaa [or the Court could itself have made that determination based on the answers to the verdict form].
Statutory Damages-amount-jury instructions
There is long standing case law under the Copyright Act that statutory damages should bear a reasonable relationship to actual damages, and that even in commercial cases the usual multiple is from 2:1 to 4:1. There having been no evidence of defendant having been a distributor, and the actual damages being as a matter of law something less than the maximum wholesale price of 70 cents, the jury should have been instructed to award $750 per infringement it found to have been committed.
If the Court submits the case to the jury, and the jury awards $750 per infringed work, then the parties could litigate the constitutionality of that award in motion practice.
That’s the way it would have played out in the real world.
I can dream, can’t I?
You can, Ray.
Meanwhile, I believe the dynamics have changed entirely. This isn’t about Big 4 profits. It’s about people. About brothers, sisters, mothers, fathers, aunts, uncles.
The labels have spent a fortune trying to make people believe the tiny number of individuals targeted represent the population, and that anyone can become a victim at any time.
But of course, we know that’s complete nonsense.
And there’s another downside. As Ray once pointed out, it’s also creating a whole new class of consumers who want nothing to do with the corporate music industry.
He said today:
“Any regular litigation lawyer knows that what I’m saying in that article is true. If we came to court with a case like that, the judge would pin our ears behind our head, and we’d be laughed out of the courthouse.”
Jon Newotn – p2pnet
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