Ray Beckerman on Jammie v the RIAA
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?”
Here’s how:
Liability-Reproduction right
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.
Liability-Distribution 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
Evidence-Plaintiffs’ Experts
- 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
Evidence-Defendant’s Expert
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.”
Stay tuned.
Jon Newotn – p2pnet
June, 2009
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June 21st, 2009 at 11:30 am
“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.”
So why do the RIAA lawyers get away with it ?
Will a lawyer dare come out and answer that question directly rather than evade a direct answer ?
June 21st, 2009 at 11:47 am
Lawyers apply the law.
Corporations exploit the law.
Legislators serve the corporations.
Applying the law more kindly is the best you can hope from lawyers.
When the law is corrupt, none of the above can or will help you.
There are only two forces that can fix corrupt law. 1) The People, 2) Economics
So, we can look forward to two inevitabilities:
1) the people will abolish copyright
2) a means of exchanging intellectual work for money will demonstrate itself superior to the exchange of copies for money
June 21st, 2009 at 1:11 pm
@ Crosbie:
“a means of exchanging intellectual work for money will demonstrate itself superior to the exchange of copies for money”
Yup.
Cheers!
June 21st, 2009 at 3:00 pm
But beckerman has handled many of these cases against riaa and it seems from his own website that he’s lost, in whole or in part, most of them. So how can he conclude that these cases should all be laughed out of court under the current rules? Seems more like the system needs to be changed.
Is he saying that even in the cases he’s handled, the defense has been “underlawyered”? If so, I wouldn’t hire him if I were unfortunate enough to be sued for filesharing.
Plus, was thomas underrepresented? Seems like she had a high profile litigator working for free on this case. Maybe he needed more time to prepare?
Let’s face it: these cases don’t proceed in bizarro-world; they’re happening here on this earth in this country in this dimension. The judges can’t all be biased and paid off or misled. In fact, didn’t the thomas judge say the first verdict was too high and so he ordered a retrial? And the new jury socked this poor lady again.
Seems like tenenbaum has a high profile defense and a sympathetic judge as well. But even that judge is apparently fed up with the way the whole thing is going to tenenbaum’s detriment. If I were him, I guess I’d give up rather than have the riaa potentially own my future.
If beckerman is right, the folks who want to combat this would get a serious lawyer and a sympathetic defendant teed up to carry a case through– not have nutty professors and obviously lying defendants just make the law worse at every turn. (I mean, what would have happened if thomas said, “yeah I had kazaa, I didn’t realize the files on my computer were available to everyone
and I don’t think I should have to pay a ton of money for this mistake” as opposed to “kazaa? Never heard of it. No idea why my username was used by someone from my bedroom computer for this. I didn’t do it, but maybe my kids or exboyfriend did”?)
That would allow the “cystallization of issues.”
June 21st, 2009 at 5:03 pm
[quote="Crosbie"]2) a means of exchanging intellectual work for money will demonstrate itself superior to the exchange of copies for money[/quote]
Anybody remember the now-defunct website/company Fairtunes.com? It emerged during the downfall of the original Napster. Basically you said to them, “Hey I want to pay this band $3.” So they accepted PayPal or other payment, then cut the band a check for $3. I believe that the About.com people bought the company, and then ran it into the ground within a year or two.
Nice idea. Why don’t artists simply have a “Donate” button on their webpages?
June 21st, 2009 at 5:45 pm
@ inquiring minds:
More like paid shill.
Still it is interesting that people such as this ‘reasonable’ comment poster are out there. It means the kartells, as John has called them, are worried.
Just my depreciated 25 cents.
June 21st, 2009 at 5:56 pm
Is there any information on the expense of the RIAA’s lawsuit against Jammie Thomas? It’s likely they spent a lot more than the $2 million they were awarded.
June 21st, 2009 at 7:49 pm
” a means of exchanging intellectual work for money will demonstrate itself superior to the exchange of copies for money”
Bingo. “Intellectual work” is a service, not a product. A concert is in intellectual work. Singing in a recording studio is an intellectual work. The recording of this work is a product; it is a product with an inherent value roughly equal to that of air.
June 22nd, 2009 at 5:55 am
Dave, the recording is nevertheless an intellectual work that can be exchanged for money. What there isn’t a market for is copies of it.
Who’s going to pay a musician to sing in a recording studio? The audience is going to pay for the recording that they want, not the warm feeling that the musician has sung in a studio. Having paid for the recording, people can then make (and sell – if they can) all the copies of it they want.
The audience is the new record label, the new publisher – and given they’ve bought and now own the recording, they can do what the heck they want with it.
So, I’d say the recording is extremely valuable. What isn’t of value are copies of it.
June 22nd, 2009 at 8:25 am
^^ “The audience is the new record label, the new publisher – and given they’ve bought and now own the recording, they can do what the heck they want with it.”
Radical, huh?
As a kind of sub-comment, IMHO, what this idea that we can buy a recording, and then it’s ours, implies is: there is such as thing as ‘enough’.
Cheers!
June 22nd, 2009 at 12:31 pm
What kind of world is this in which kids such as Neda, so many children in Palestine in Africa and elswhere and innocent people get kill and persecuted by couards while big fat piece of shit such as corrupted lawers, entertainement industry parasites, sionists terrorists , white power neo-conservators, fanatical islamists and criminals go free!
We the good people of this earth from all the sides should band together and change that! We need to get rid of our terrosits! Togethers! Now!
June 22nd, 2009 at 1:36 pm
What’s happening in Iran will happen in the US soon enough. I’d say in less than 20 years.
June 22nd, 2009 at 2:42 pm
I’ve served on a jury. The whole circus disgusted me so much that when it was over I sought out ways to never be called upon again. It is all about whose lawyer can lie the best, not evidence or even logic. The side that is able to weave the most convincing lie to sucker the jury with wins. The jury itself? They only care about their own lives and getting back to them as soon as possible. People these days don’t see it as a civic duty, they see it as being forced into doing something that is a total inconvenience. This is the primary reason verdicts are turned in so quickly, not because of overwhelming guilt or innocence but because the jurors want to go home and be done with it. Another thing about jurors is that many of them decide based on their own life experiences rather than the evidence presented. You better hope they don’t hate something about you or your profession. For example, one of my fellow jurors refused to believe any testimony given by one of the witnesses simply because that witness was a prostitute. A few jurors may stand up for what is right because they are good people deep down, but it doesn’t take long for those people to be bullied by the other jurors into a collective agreement. Simply put, there is no justice in the justice system. Despite how horribly broken it is, we’re unable to come up with anything better. Welcome to the only law that matters in this universe. Life is above all unfair and the ones who ultimately survive will be those with no morality or conscious, people willing to do whatever it takes to make to the top.
June 22nd, 2009 at 4:31 pm
“we’re unable to come up with anything better.”
“Life is above all unfair and the ones who ultimately survive will be those with no morality or conscious, people willing to do whatever it takes to make to the top.”
I’m not agreeing with that.
The internet means open communication.
The power is drifting into the hands of the user and we WILL come up with something better.
June 22nd, 2009 at 5:12 pm
As if the theft of a song is worth $80,000. Directv sued 30,000 people too and said there programming was worth $100,000.00 for one year. But when Directv was sued in Class Action (luaces V. Directv Miami 1997) for having taken consumer programming the consumer was given a paltry $14.00 for the month Directv took the consumer programming. Funny when a corporation faces the loss it is huge and when the corporation steals from the consumer, the loss is small. What do you think the consumer would get if a company made a music which expired in 30 days while the consumer expected a lifetime of use from that CD.? I would bet the CD maker would not pay you $80,000 per song!
All of this has to do with courts and lawyers which have no regard for fairness. It can be named corruption in some cases. This because who knows who was seated behind a computer when downloading occurred. Directv mailed out some 175,000 letters and sued 30,000 people. In the case Directv V. Treworgy, Directv admitted that there may have been 10% mistakes. OK, I was a mistake but had to pay out huge sums of money anyway. But today I have a different feeling for the court and attorney’s. In fact the next time I am a witness or a juror, I can no longer extend any credibility to our system of justice. So the effects here are not only on the victim of a false lawsuit but the justice system will take a hit lasting years from this. But then judges and lawyers don’t really care unless it is there own family which becomes a victim of corporate crime. Then they will want a juror or witness who places credibility in the justice system.
Remember $80,000 per song because that is what the consumer is owed if the CD you buy doesn’t seem to work.
http://theft-by-copyright-owner.com/default.htm
June 23rd, 2009 at 2:02 am
“The power is drifting into the hands of the user and we WILL come up with something better.”
Are you talking about copyright law or the justice system? Unless you can come up with an infallible way to read minds, the justice system will always be badly broken. If you’re talking about copyright and privacy laws, well it’s been 10 years now and I still haven’t seen any changes for the better. Lot’s of talk but very little action. All things considered I’d say we’re actually worse off now than we were in the beginning.
We live in a capitalist society which means those with all the money have all the power and thus get to make the rules. It has been this way since the beginning of time and always will be. The universe is full of self evident truths, the most important of which being that it’s far from perfect and completely unfair. That is the “real world” we all live in. See, Ray Beckerman has it backwards. Only in some parallel universe where everything is fair and perfect would things ever have worked out the way they should have. Oh you can believe in a better tomorrow all you want. Go ahead and do whatever it takes to keep that little bubble of reality you’ve built around yourself afloat. After all, hope (even if false) is the only way to stay sane in this crazy ass world. But make no mistake, so long as mankind exists history will forever repeat itself. There will always be bullies and the bullied. There will always be the cruel and the downtrodden. There will always be lust, greed and all the other sins. No amount of arguing or law making will ever change human nature and the only thing that will ever be certain in life is uncertainty. So start fortifying your position now and pray you have enough ammunition because I guarantee that the shit is going to hit the proverbial fan eventually. It always does.
June 24th, 2009 at 12:25 pm
I may be repeating myself here, but its worth repeating if it may help Jammie Thomas.
A music publisher illegally passed themselves as owners of over 500 songs authored by my father, copyright registered 80 of those songs as owners, fraudulently licensed many of the songs and collected (also illegally) over $2,000,000 (current value) in royalties. We the children of the composer, the legal owners of the songs, sued the so called music publisher and only obtained a $16,000 damage award (whiles spending far more in over unrecouped legal expenses) from an American federal judge. The judge did not bother to have the vast majority of the illegally collected collected royalties returned or paid to us nor order the illegal copyright registrations removed. As a result the songs are still registered as belonging to the music publisher. The details can be found here: gvenega.com. Click on “The theft of the music…”
Now, how does the massive for-profit theft of songs and fraud (illegal licenses issued constitute fraud) of described above compare to the crime of downloading 24 songs?
Why was a damage sentence $16,000 for stealing over 500 songs and causing over $2,000,000 in real damages (our losses in never received royalties) and, on the other hand, $1,900.00 for downloading 24 songs and no real damages, proven or otherwise?
Who is responsible for the disparities in copyright cases sentencing?
One would think it is the US Supreme court, right?
Forget it, they are too busy protecting the the courts.
Its a another case of rabbits watching the carrot patch.
Clearly, Jammie Thomas has many arguments to bring to appeal, as shown by Ray Beckerman and should prevail.
The long term solution to end the torture of innocent victims is to have an appeal court that is independent for the court system with a jury of non lawyers of proven inteligeence or education named for a very short period of times, or perhaps for a single case only. That may lead to the elimination of dumb laws and ridiculous sentencing.
June 24th, 2009 at 1:24 pm
^^ Hi Rafael – I was just wondering what you would say about this -and here you are! I am always glad to see your posts – you show us what it is like when the shoe is on the other foot.