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InvisibleDiploidM
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RIAA's First Jury Trial
    #7483573 - 10/04/07 01:40 AM (16 years, 3 months ago)

DULUTH, Minnesota -- The Recording Industry Association of America's case against a woman accused of pirating music on Kazaa ended here after nearly two days of testimony by 11 witnesses. Defendant Jammie Thomas put on no witnesses in her defense.

Her defense, however, was simple: Inject doubt that she was the actual human being behind the computer.

The RIAA put on an array of evidence showing that a Kazaa user named Tereastarr shared some 1,700 digital audio files on Feb. 21, 2005. The industry lobbying arm demonstrated, without Thomas disputing it, that Thomas uses that Tereastarr username on her e-mail accounts, on her online logins and as her username to access her own computer. She also uses that name with Match.com and with online retailers where she has bought hundreds of CDs, she testified.

The evidence against her also showed that an internet protocol address associated with that Kazaa share file in question was assigned to Thomas by Charter Communications the night RIAA investigators captured her shared folder. The cable modem used to share the files was also leased to Thomas, according to testimony from a Charter Communications security official.

The Kazaa shared folder allegedly on Thomas' computer was traced by security firm Safenet, according to testimony from its operations chief, Mark Weaver.

Thomas, however, maintained she didn't do it. During more than an hour of testimony on Wednesday, she said she had never even downloaded the Kazaa program.

Trying to raise doubt among jurors, who said during jury selection they were not computer savvy, Thomas' attorney Brian Tober suggested his client was the victim of a zombie, a cracker, or a drone. He also suggested somebody using her wireless connection from outside her Brainerd, Minnesota, apartment window could have been responsible.

Computer forensics specialist Doug Jacobson, of Iowa State University, testified that no wireless connection was used the night in question, based on IP data embedded in the Kazaa traffic. And Thomas never testified that she owned a wireless router. Tober never asked her.

Another angle going against Thomas was that she handed over a hard drive for the RIAA to inspect, but it was a new drive she got two weeks after the downloading in question. No Kazaa downloads were found on that new hard drive.

During her spring deposition in the case, she testified that she had the new hard drive installed before Feb. 21, 2005, the day she is accused of pirating on Kazaa.

She told jurors Wednesday that she misspoke during her deposition.

Still, none of the 10 witnesses who testified against Thomas could put her behind the computer when the downloading occurred, an issue upon which Thomas' attorney repeatedly told the jury during his questioning of witnesses.

The trial slowed into surreal hour-long drive down a blind alley during testimony about that new hard drive, which has several thousand songs on it. Both sides haggled over whether the songs got on that hard drive by Thomas ripping CDs to it or whether she transferred them from another hard drive.

Thomas even put on a brief demonstration for jurors (pictured above) showing that it took about 15 or 20 seconds to rip each song off a CD onto a hard drive. Tober, her attorney, kept time during the demo with his cell phone. He said Thomas had ripped them all. But each song was time stamped about 15 or 20 seconds apart, meaning Thomas would have had to spend a day or more in front of her computer to complete that task.

Perhaps jurors will be given the reason for that exercise during closing arguments Wednesday. During the demonstration part of the hearing Wednesday, jurors were clearly bored, disinterested and some sat with their arms crossed on their chests.

Attorneys make their closing arguments here Thursday morning. A verdict might come later in the day in the RIAA's first case targeting an alleged pirate for infringement.

wired.com


--------------------
Republican Values:

1) You can't get married to your spouse who is the same sex as you.
2) You can't have an abortion no matter how much you don't want a child.
3) You can't have a certain plant in your possession or you'll get locked up with a rapist and a murderer.

4) We need a smaller, less-intrusive government.


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Offlinedisturbed
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Re: RIAA's First Jury Trial [Re: Diploid]
    #7484428 - 10/04/07 10:51 AM (16 years, 3 months ago)

Sharing is caring FUCK THE RIAA!


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11/25/07 first time entrant ban lottery champion


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OfflineSeussA
Error: divide byzero


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Re: RIAA's First Jury Trial [Re: disturbed]
    #7484537 - 10/04/07 11:30 AM (16 years, 3 months ago)

Sharing copies is theft, but then, so is price fixing. Fuck the RIAA.


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Just another spore in the wind.


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Invisiblerod
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Re: RIAA's First Jury Trial [Re: Diploid]
    #7485156 - 10/04/07 02:17 PM (16 years, 3 months ago)

Fuck the RIAA and MPAA, may their house of cards catch fire,
and be gone.


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OfflineHagbardCeline
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Re: RIAA's First Jury Trial [Re: Diploid]
    #7486191 - 10/04/07 07:35 PM (16 years, 3 months ago)

Well it didn't go well for her, to the tune of $220,000. I can't say I'm surprised, she didn't appear to have a very good defense.

http://blog.wired.com/27bstroke6/

DULUTH, Minnesota -- Jammie Thomas, a single mother of two, was found liable Thursday for copyright infringement in the nation's first file-sharing case to go before a jury.

Twelve jurors here said the Minnesota woman must pay $9,250 for each of 24 shared songs that were the subject of the lawsuit, amounting to $222,000 in penalties.

They could have dinged her for up to $3.6 million in damages, or awarded as little as $18,000. She was found liable for infringing songs from bands such as Journey, Green Day, AFI, Aerosmith and others.

After the verdict was read, Thomas and her attorney left the courthouse without comment. The jurors also declined to talk to reporters.

The verdict, coming after two days of testimony and about five hours of deliberations, was a mixed victory for the RIAA, which has brought more than 20,000 lawsuits in the last four years as part of its zero-tolerance policy against pirating. The outcome is likely to embolden the RIAA, which began targeting individuals in lawsuits after concluding the legal system could not keep pace with the ever growing number of file-sharing sites and services.

"This is what can happen if you don't settle," RIAA attorney Richard Gabriel told reporters outside the courthouse. "I think we have sent a message we are willing to go to trial."

Still, it's unlikely the RIAA's courtroom victory will translate into a financial windfall or stop piracy, which the industry claims costs it billions in lost sales. Despite the thousands of lawsuits -- the majority of them settling while others have been dismissed or are pending -- the RIAA's litigation war on internet piracy has neither dented illegal, peer-to-peer file sharing or put much fear in the hearts of music swappers.

According to BigChampagne, an online measuring service, the number of peer-to-peer users unlawfully trading goods has nearly tripled since 2003, when the RIAA began legal onslaught targeting individuals.

At the time, BigChampagne says, there were about 3.8 million file sharers trading over the internet at a given moment. Now, the group has measured a record 9 million users trading at the same time. Roughly 70 percent of trading involves digital music, according to BigChampagne.

The case, however, did set legal precedents favoring the industry.

In proving liability, the industry did not have to demonstrate that the defendant's computer had a file-sharing program installed at the time that they inspected her hard drive. And the RIAA did not have to show that the defendant was at the keyboard when RIAA investigators accessed Thomas' share folder.

Also, the judge in the case ruled that jurors may find copyright infringement liability against somebody solely for sharing files on the internet. The RIAA did not have to prove that others downloaded the files. That was a big bone of contention that U.S. District Judge Michael Davis settled in favor of the industry.

Thomas, 30, maintained that she was not the Kazaa user "Tereastarr," whose files were detected by RIAA's investigators. Her attorney speculated to jurors that she could have been the victim of a spoof, cracker, zombie, drone and other attacks.

The jury found her liable after receiving evidence her internet protocol address and cable modem identifier were used to share some 1,700 files. The hard drive linked to Kazaa on Feb. 21, 2005 -- the evening in question -- did not become evidence in the case.

According to testimony, Thomas replaced her hard drive weeks after RIAA investigators accessed her share file and discovered 1,702 files. The industry sued on just 24 of those files.


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I keep it real because I think it is important that a highly esteemed individual such as myself keep it real lest they experience the dreaded spontaneous non-existance of no longer keeping it real. - Hagbard Celine


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InvisibleAcyl
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Re: RIAA's First Jury Trial [Re: HagbardCeline]
    #7486399 - 10/04/07 08:39 PM (16 years, 3 months ago)

:nonono:


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:scrambled:

1 ,2


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InvisibleAsante
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Re: RIAA's First Jury Trial [Re: Diploid]
    #7488742 - 10/05/07 02:52 PM (16 years, 3 months ago)

Artists should make most their money by touring. The music industry should look for new horizons.

Movies should make their money in the cinema, where people pay for the cxinema experience with a good movie.

We are moving towards a world where data is free. They try to repress it but it's an unstoppable force. And I really think that this is a good thing.

In 2020 you buy a mp3 player, and it will have a harddisk in it with the 1.000 songs you like to hear already installed on it.

Or a DVD player with 1.000 movies of your choice pre-installed in it.

You just select categories and the most popular movies of those categories will be installed until your limit is reached.

In 2020 free opensource software will dominate the software playing field. You only buy something if it truly outperforms the free stuff.


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Omnicyclion.org
higher knowledge starts here


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OfflineLearyfanS
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Re: RIAA's First Jury Trial [Re: Diploid]
    #7490878 - 10/06/07 09:40 AM (16 years, 3 months ago)
Log in to view attachment

^








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Mp3 of the month:  The Apple-Glass Cyndrome - Someday



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Offlinenihilistism
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Re: RIAA's First Jury Trial [Re: Learyfan]
    #7501862 - 10/09/07 03:12 PM (16 years, 3 months ago)

reading this article reminded me to clear my shared folder =)


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OfflineAaronEvil
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Re: RIAA's First Jury Trial [Re: Diploid]
    #7503738 - 10/09/07 11:45 PM (16 years, 3 months ago)

Which leads to the question, is it ok for the RIAA to find those connections to her computer? How would they go about doing that in a legal way? Is that not a form of hacking? Do they need a warrant and does she need to be informed of the warrant before they can look for anything?

How would someone protect themselves from this kind of seek and destroy the RIAA and MPAA are doing?


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There is not a lot of difference between a fox hole and a grave; but knowing that you dug your ditch and climbed in anyway.


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InvisibleDiploidM
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Re: RIAA's First Jury Trial [Re: AaronEvil]
    #7504168 - 10/10/07 03:37 AM (16 years, 3 months ago)

What they've done in the past is file a subpoena with the ISP who owns the IP addresses to get the identity of the user. The courts have been granting them. With that information, they file suit against the user.

ISPs have no choice but to comply with the court order so you can't blame them.

BTW, it looks like this lady is going to appeal the loss. She must have some deep pockets to pay for all that legal help.

Here's a detailed legal analysis. #4 is particularly scary to consider:

--

Will appeal succeed in RIAA's $222,000 'making available' case?
Posted by Declan McCullagh

The Minnesota woman who was slapped with a $222,000 penalty for "making available" songs on the Kazaa network is appealing her loss.

But can she actually win against the Recording Industry Association of America?

There's probably a 50-50 chance. On one hand, the RIAA has won some minor victories in the last few years with its "making available" arguments to expand copyright law beyond what it actually seems to say. Now that there's finally going to be some serious public and judicial scrutiny, however, the odds are closer to even.

(If the RIAA wins, by the way, the precedent would create some real dangers for innocent users. But more on this later.)

[#1] What's important to remember here is that the RIAA's victory rests in large part on, as I wrote last week, the judge's decision that the record labels need only prove that Thomas made copyrighted music "available" on the Kazaa network. That means leaving the songs in a publicly accessible directory where they might possibly have been downloaded. Thomas confirmed earlier Monday that her appeal to the 8th Circuit will center on that point.

To understand how this will play out, let's start with the plain text of the relevant part of federal law. It says:

17 USC 106: 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;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending

Illicit distribution of copyrighted materials over Kazaa involves paragraphs (1) and (3). Those paragraphs restrict the unauthorized "reproduction" or "distribution" of music--which sure doesn't seem to cover Thomas leaving songs in her shared directory if they were never actually downloaded.

So how can the RIAA get away with this? This is where things get murky. The definition of "publication," which the U.S. Supreme Court says is the same as distribution, says: "Offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication."

[#2] Some courts have interpreted that to mean proof of actual copying is necessary; others haven't. Take a 1997 case involving the Church of Jesus Christ of Latter-Day Saints, sued by genealogical researchers who sold their copyrighted work on microfiche. Instead of buying multiple copies, the Mormons bought only one, made copies, and sent the duplicates to their branch libraries.

The copyright-holding genealogists took the position that the RIAA does today. They claimed that merely proving the copyrighted work was available was good enough. In response, the church argued that the researchers needed to show a library patron actually had read the pirated microfiche.

The RIAA's argument won. The 4th Circuit concluded by a 2-1 margin:

We agree with the (researchers). When a public library adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public. At that point, members of the public can visit the library and use the work. Were this not to be considered distribution within the meaning of Section 106(3), a copyright holder would be prejudiced by a library that does not keep records of public use, and the library would unjustly profit by its own omission.

Because a split decision in a different federal circuit a decade ago in an unrelated case may not be entirely persuasive, the RIAA has invoked other arguments as well. And they've had some preliminary success.

Among them: 1. The WIPO copyright treaty, which the United States has ratified, covers "the making available to the public" of copyrighted works. 2. Marybeth Peters of the U.S. Copyright Office says that making a file "available for other users of a peer to peer network to download...constitutes an infringement of the exclusive distribution right, as well of the reproduction right." 3. Having child pornography in a Kazaa shared folder is, at least in the 10th Circuit, good enough to support a conviction in a criminal case. 4. The 9th Circuit believes that copyright law was infringed when peer-to-peer users "make their collections available to all other" users.

[#3] Those are strong arguments. But there's another side to the story as well (which is why I believe that Thomas has a 50-50 chance): WIPO is not binding by itself; Marybeth Peters' opinions aren't as important as what the law actually says; a civil dispute is different from a criminal prosecution; and so on.

Not all judges in the RIAA cases have agreed with the music industry's lawyers. In a preliminary ruling in Interscope Records v. Duty, a judge said last year: "To be clear, we do not conclude that the mere presence of copyrighted sound recordings in Duty's share file constitutes copyright infringement. We have an incomplete understanding of the Kazaa technology at this stage..." At least two other courts have followed that line of thinking.

In a pre-trial motion in UMG Recordings v. Lindor, the court ruled that: "At trial, plaintiffs will have the burden of proving by a preponderance of the evidence that defendant did indeed infringe plaintiff's copyrights by convincing the fact-finder, based on the evidence plaintiffs have gathered, that defendant actually shared sound files belonging to plaintiffs." (Emphasis added.)

Most judges, though, haven't spent too much time puzzling through the implications of "making available." One exception is U.S. District Judge Kenneth Karas in Elektra v. Barker, who has heard arguments from not just the RIAA but also the Electronic Frontier Foundation, the American Association of Publishers, the Motion Picture Association of America, the Computer and Communications Industry Association, and the U.S. Department of Justice. The Justice Department, by the way, sided with the RIAA. A decision from Judge Karas is expected at any time.

All those cases receive something of a boost from U.S. District Judge Marilyn Hall Patel's 2005 ruling in an offshoot of the original Napster litigation. Patel is no tech-neophyte; she presided over Napster, a 1990s-era encryption source code case, and the recent Americans with Disabilities Act lawsuit over Target's Web site. She wrote:

The gravamen of the parties' dispute lies in whether the Copyright Act requires proof of the actual dissemination of a copy or phonorecord in order to establish the unlawful distribution of a copyrighted work...If Congress wanted to make clear that the distribution right was broad enough to encompass making a work available to the public without proof of actual distribution, it was perfectly capable of doing so. Yet plaintiffs have failed to identify anything in (the law's) legislative history, much less the statute itself, to suggest that Congress even considered the scope of civil liability for copyright infringement in enacting the statute. Any attempt to infer legislative intent from such silence is at best speculative.

[#4] I said at the beginning of this article that if the RIAA wins on "making available," the precedent would create real dangers for innocent users. That's because the awesome weapon of copyright law can be turned on people who only mistakenly ran afoul of it.

The case of the Mormon church buying only one copy of the microfiche for multiple libraries was pretty straightforward: the purpose of any library is to distribute information, and intent to distribute can be assumed.

But computers are far slipperier than libraries (or, put another way, we're all libraries now). If my mother accidentally shares her computer's entire hard drive with the world by clicking the wrong button in an OS X setup menu, is that "making available?" Should she be held liable for $222,000 in damages, and lose her house, for accidentally making two CDs of music available to the world?

If I don't upgrade to a newer version of my operating system even though I know there's a security glitch that opens my hard drive to the Internet, does that mean I'm "making available" my music collection? Do Internet service providers "make available" access to Kazaa? Do search engines "make available" links to infringing files?

"It's hard to distinguish having something in a Kazaa shared directory versus having it on my shelf and not locking my door or having it on a computer and not bothering with a firewall so the college kids--who I know full well live next door--can hop on and take it," says Jessica Litman, who teaches copyright law at the University of Michigan and is the author of Digital Copyright. "If the RIAA eventually wins on this one, it would be a ruling I'd be willing to say is wrong," Litman added.

These are not all easy questions to answer, especially because intent doesn't matter much in copyright law. It's what lawyers like to call a strict liability offense--meaning that even accidental "making available" can slap you with a $222,000 penalty. This might make sense for corporate defendants, but it gets bizarre quickly when applied to hundreds of millions of Internet users.

It's true that ditching the "making available" idea and making the RIAA prove the songs were actually downloaded means its lawyers would have to work harder. And it wouldn't solve all of these problems above. But it would be a small step toward repairing some of the imbalances in copyright law today.

news.com


--------------------
Republican Values:

1) You can't get married to your spouse who is the same sex as you.
2) You can't have an abortion no matter how much you don't want a child.
3) You can't have a certain plant in your possession or you'll get locked up with a rapist and a murderer.

4) We need a smaller, less-intrusive government.


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