Jury nullification and Santangelo
p2p news view / p2pnet: With the upcoming Patti Santangelo case looming, the subject of jury nullification provides interesting food for thought.
As virtually everybody who knows anything about it knows, virtually nobody knows anything about jury nullification. So what the hell is it? (And try saying it three times fast as a mental warm up too.)
Wikipedia gives a good summary: Jury nullification is a jury’s refusal to render a verdict according to the law, as instructed by the court, regardless of the weight of evidence presented. Instead, a jury bases its verdict on other grounds. Historically, examples include the unjustness of the law, injustice of its application, the race of a party, or the jury’s own common sense.
WTF?
Okay, there’s actually some logic behind the idea that a bunch of ordinary people can just decide the fate of their fellow citizens. There is also Article Three of the US Constitution behind the idea as well but I like the logic, so we’ll run with that for the moment.
You get to vote for someone to represent you in your country’s government. That representative has a hand in deciding what the law is. That representative is just as likely as anyone else to go completly bonkers and pass a law punishing people for holding a banana in an unauthorized manner (and there a weirder laws than that out there!).
Some cop, who’s just doing his job, arrests you for holding a banana in an unauthorized manner. You go before the court. The judge informs everyone that there’s a statutory sentence for illegal banana holders and you’re looking at ten years in the slammer if found guilty…and you’re guilty as hell. They’ve got video footage of you holding the banana in a manner that’s clearly against the law. They’ve got two dozen witnesses who saw your criminal banana-clutching activities with their own eyes. They even have a forensic expert who can demonstrate how the markings on the banana could only be made by someone gripping it in a way that the law says is illegal.
You opt for a trial by jury and they acquit you because that law is just fucking dumb. That’s jury nullification in practice: the last defense of the citizenry against an unjust (or insane) government.
But they don’t tell you that you can do it.
In Sparf v US, the court decided that the judge has no responsibility to inform the jury of their ability to nullify a case…and there’s actually some logic behind that as well.
The government works for you. Right? It’s your servant. Right? It exists solely for the benefit of you and your fellow citizens. Got it?
Now, isn’t it a bit strange that your servant should be the one to tell you everything you’re allowed to do? You’re the master, here, so you should know what your rights are, dammit! The court simply rattles through the legal procedure, part of which is something along the lines of, “…you should find the defendant guilty or not guilty”. That’s it. They don’t tell you what you can do because you’re supposed to know that already. It’s a de facto power that you have, akin to taking your ball and going home if you don’t feel like playing any more.
Sure, the score may be tied with ten minutes of game time remaining, but you can still just walk away if you feel like it.
If you think this all sound a bit screwed up, maybe ask yourself, “why bother being judged by a jury of your peers if the court judge is simply going to force them to find you guilty?” I mean, it’s only the 6th Amendement. Why do we need the Constitution when we have all these other great laws like the Federal Rules of Criminal Procedure? Or that Alaskan law that makes it illegal to feed alcoholic beverages to a moose?
Could it be that it’s ’cause the US Constitution is pretty damned important? You know, guaranteeing certain things like the government not depriving any person of life, liberty, or property without due process of law? That kind of thing.
As John Adams put it: “It is not only his right but his duty…to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” Now that’s coming from the guy who helped write the Delclaration of Independence, became president of the United States and saw his efforts later expressed in the US Constitution.
His resume suggests that we shouldn’t simply ignore his views on citizens’ involvement with the law.
Then again, John Adams spent most of his life fighting for freedom, justice and independence from ghastly laws, so what does he know about modern America?
Oh, wait…
It’s interesting to consider the idea of jury nullification in light of some of the lawsuits being flung around at the moment, especially the case of Patti Santangelo, who’s opted for a trial by jury in her case against the RIAA.
Who knows? Maybe the citizens of New York state serving on her jury will finally tell the record companies that they’re not prepared to choose corporate profits over ordinary people.
Maybe some of Santangelo’s jurors were unlucky enough to have bought a rootkitted CD from Sony.
Maybe the damages the RIAA is asking for are just so ridiculously high that the jury will acquit her out of sheer bloody-mindedness.
The concience of the individual is a fickle beast, but somehow I get the feeling that the RIAA is really scared of people thinking for themselves.
It undermines their whole business model.
Alex H, p2pnet - Sydney, Australia
[Alex is an operations manager for an ATM (automatic teller machine) supplier and he specialises in infrastructure development and maintenance, and logistics. He's also an[other] active member of the Shareaza community who’s just started his own blog called Tech Loves Art where you’ll find past p2pnet posts, together with other goodies to come ; ]
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If you’d like to give Patti a hand, use the donations button below, or snail-mail your contributions to:
Patti Santangelo
C/O PO Box 274
Hartsdale
New York 10530-0274
February 22nd, 2006 at 4:14 pm
“Or that Alaskan law that makes it illegal to feed alcoholic beverages to a moose?”
you mock this law but just think of the poor individual walking to their car in Alaska who is cornered by a drunk amourous moose looking for a little cuddle time…. there is a reason for the law.
February 22nd, 2006 at 8:36 pm
Let’s hope Glass and other lawyers with RIAA victims as clients pay attention to this.
February 23rd, 2006 at 4:18 am
for godssake it’s not just the two of them is it? Patti should have ONE technical expert on this case at the very least due to the technical nature of the case, and especially since so much is riding on this for her and the larger p2p community. i haven’t heard from any other tehnical experts for the defense in any of these cases. aren’t there any others out there doing work like me, or do you guys know something I don’t? did i pick the short straw? why haven’t the other legal teams around the country produced any technical experts to refute the RIAA’s unscientific and baseless accusations? i haven’t heard from any of them. it would seem logical to have a technical person, no?
Glass sounds like he just finished law school and passed the bar. he seems to have little/no experience and i’m worried. as much as I hate to agree with the guy who says he doesn’t have snowball’s chance in hell, this is what it looks like unless they can get some tech expert(s) on board to fight the RIAA’s deluge of garbage “evidence”.
The RIAA did something very stupid (again!), which Ray Beckerman will probably announce in the next day or two on his blog. Recall that Whitehead said in his second declaration that **ALL** the Does are indeed Limewire users, when his first declaration put in pages of Kazaa screenshots. He back peddled and I said he shot himself in the foot. Well, look for more laughs to come. It’s pathetic what Whitehead and his goons are calling an “investigation.”
/zi.
February 23rd, 2006 at 6:43 am
Wishfull thinking Alex H from Sydney. Mrs Patti Santangelo is going to get fried. She doesn’t have a leg to stand on. If her children run up big phone or credit debt in her account name she would also be held accountable for that. The Prosecuting lawyers are going to eat her in front of your eyes. Hey it might even be pod cast. No seriously the poor women is learning a very painful and expensive lesson. Here’s a suggestion since Kazaa caused it maybe they can kick in some of their Skype dollars to pay for some decent representation for Patti. It’s common knowledge that Mark Dyne and Kevin Bermeister of Brilliant Digital Entertainment organised Nikki Hemming to be the patsy for the Altnet/Kazaa Sharman con. The Skype duo were never removed from the picture, they were only hiding behind a small British born women called Nicola Anne Hemming who had an ego the size of the US deficit and subsequently really thought they included her for her acumen. How about you investigate and report that story Jon Newton and Alex H.
February 23rd, 2006 at 8:23 am
hey she looks like an older version of daphne fom frasier!!
February 24th, 2006 at 8:03 pm
Dear Alex H. and all,
I am not a lawyer but 5 minutes of research leads to the conclusion that your argument from start to end is based on a very faulty premise. Jury nullification only applies to criminal jury trials and this may well be a civil jury trial (if someone is a lawyer and knows this for sure, please correct me if wrong- thanks). If it is a civil trial then it is decided by 9 of the 12 votes. And since the jury vetting selection procedure allows a certain number of no questions asked no-selects then the civil jury would tend to be neutral to only very slightly biased on way or another (with no extreme views represented on either side). Therefore jury nullification would not be very likely at all.
Sincerely, An interested bystander.
February 25th, 2006 at 12:51 am
Here a new argment for Santangelo:
The American Copyright Act was changed in 1976 to say as follow:
Sec. 106. Exclusive rights in copyrighted works
Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
Let us analyse the text “copies or phonorecords”.
Clearly phonorecords are not considered “copies” because the use of the word “phonorecords” in the law would then be redundant, if phonorecords (plastic disks or magnetic tapes) were also considered copies.
So, “copies” must refer to the a paper with the work printed on it.
Before the 1976 change in the law. the copyright law (1909 Act) in effect refered to only “copies” and did not mention “phonorecords” at all.
And phonorecords were not proptected by the law. Before 1976 a phonorecord with a public domain song had no copyright protection from the Copyright Act of 1909. This is a well established fact.
So, a possible interpretation of the current law is then that the copyright holder has exclusive rights to make copies and to make phonorecords (which mst now include CDs?) but has no exclusive rights for other type of copies.
The law then gives no exclusive rights for making other types of reproduction, such as a digital reproduction on a hard disk, which are certainly not paper printed copies nor phonorecords.
If my analysis is right, all RIAA lawsuits against downloaders may be doomed. Can some legal mind out there comment on this? Are there holes in the analysis?
Rafael Venegas
http://www.gvenegas.com
February 25th, 2006 at 1:51 am
“If her children run up big phone or credit debt in her account name she would also be held accountable for that.”
This is a misleading statement.
If the word “her children” were replaced by “anyone” it would still be an argument. Simply put, if anyone allows anyone to use the phone, the account holder will have to pay. If an intruder enter a house and makes a 100 dollar long distance phone call using the house phone, the phone account holder will have to pay the bill. The phone account holder is responsible account, not the intruder.
The credit card is another situation. If an intruder steals a credit card and uses it, the owner of the credit card account has mechanisms to avoid payments for purchases made by the intruder. The owner of a credit card has also defense mechanism to avoid payment of improperly billed money.
The words “her children” was simply use to mislead and to make the senseless statement “Mrs Patti Santangelo is going to get fried.” beleivable.
BTW, there were no Santangelo owned RIAA accounts abused by anyone, Such accounts do not exist.
Are you a RIAA mole?
Rafael Venegas
http://www.gvenegas.com
February 25th, 2006 at 12:05 pm
“because the RIAA’s case is so ridiculous and damaging to society”
May I add….
and dangerous to art and artists (culture).
and dangerous for the legal system.
Both culture and the legal system cannot exist primarily as means to make money at any cost under any scheme of exploitation of the victims. Just like for patriotism, democracy. religion, health care and medicines, education, defense/security, if you get the message.
Rafael Venegas
http://www.gvenegas.com
February 27th, 2006 at 12:47 am
No I think that that argument is a stretch.
Check out some real free speech at http://crotchless-lingerie.com
Thanks
Joey M
http://aaalegs.com
February 28th, 2006 at 2:05 am
Most jurors would think it’s a stupid law too and possibly nullify the case, but when the prosecution tell them why that law actually exists, it turns out to be a common-sense law.
The fact that the jury CAN nullify just means the prosecution can’t run a sloppy case and expect to win - they have to justify WHY they are prosecuting the guy for giving the moose a beer, which will hopefully mean everybody on the case is trying to do a good job.
That’s something worth hoping for in any legal matter.
March 1st, 2006 at 9:37 am
but when the prosecution tell them why that law actually exists, it turns out to be a common-sense law.
Come on…
Why a actually law exists can never be detrmined. Most laws either do not not state a purpose or state a purpose and proceed immediately to work against the stated purpose. This is because legislator’s agenda is hidden and driven by special interest’s hidden purposes and is hidden lobby driven.
The American Copyright Act does not state a purpose, but actually operates against what most songwriters, for example, beleive is its purpose.
For the music publisher, the purpose is is different and for these the law works fine. Thet make all the money and songwriters and artists, with few execptions, make no money.
Copyright laws are not common sense laws. Copyright laws are better described as nonsense laws. To see the copyright law at work, visit my site!
Rafael Venegas
http://www.gvenegas.com
March 1st, 2006 at 9:42 am
Why? What is your idea?
Sorry pal, but you say nothing. No legal theory.
March 1st, 2006 at 9:46 am
Sorry pal, but you say nothing.
March 1st, 2006 at 11:16 pm
…but it’s been bastardized for so long, by so many people that it doesn’t do what it was meant to: allow creative types enough time to recoup their costs and make some profit before turning their invention/creation over to the public good.
This is the balance that copyright was supposed to create:
|———— Creators———–|—————Public————-|
This is who it benefits now:
|————————-Creators—————————-|Public|
I still think copyright is a good idea, but I can’t for the life of me find anyone who’s still using the original version.
Kinda the same way as I like a lot of what the Republican party is supposed to stand for - nice ideals, but until Republicans start following them, I’m voting Democrats (or independent where I can).
March 2nd, 2006 at 8:04 pm
I have to disagree with part of this premise. You have to be assuming in your chart that shows Creators squeezing out the Public that there is no public value derived from from the creation and sale of that song while under copywright. If I make a song and you buy it from me for .99 cents then it was worth it to you. You got pleasure from it and I got .99 cents. Both parties in that transaction come out ahead. That is why we as a society lead the world in creation and consumption of songs, movies, software, books, video games, etc.
Specifically copyright itself is not flawed, but some of extentions to it like the Sonny Bono extentions do make copyright to long. Remember not to throw the baby out with the bathwater! Thanks.
March 3rd, 2006 at 1:51 pm
This is who it benefits now:
|————————-Creators—————————-|Public|
This is a more realistic representation:
|Creators|—————–Owners/Cartels——————–|Public|
The bulk of ownership is in the hands of recod companies, music publishers, movie companies, software companies, etc, who have set up scams so the they wind up owning what the creators create.
Of course the actual values are totally unknown, as the lobbies have mede sure the proper analyses are never made, on ne hand, and on the other hand the creators and artists are in total disarray and blacklisted if the talk too much.
Rafael Venegas
http://www.gvenegas.com