get the kids
Let's just get the kids too. The mother has shown them the way to the devil of downloading and they should all rot in federal hell together. Thank god for the media moguls and Ryan Seacrest to "you tube" our souls to heaven.
30-year-old single mother of two Jammie Thomas appeared in court today in Minnesota to answer allegations that she illegally shared 1,702 songs on the Kazaa file-sharing network. Thomas is the first of approximately 26,000 US citizens accused by the Recording Industry of America of illegal file-sharing to reach a civil judge …
The contents of her hard drive are completely irrelevant. What *IS* relevant is whether the plaintiff has evidence that she illegally shared their copyrighted information. More accurate, what is relevant is whether the defendant made illegal copies of the plaintiff's copyrighted information (whether or not she actually shared it, and whether or not it was actually downloaded). To be acceptable evidence by any sane person (which is not the same as "admissible in a court of law"), the plaintiff would have to prove the following:
1. That each file in question was downloaded from the defendant's computer. Listing an IP address and saying "this was the defendant's connection" is not evidence. Evidence would be showing proof of download from the defendant's computer (including proof that the IP address was actually assigned to the defendant at the time).
2. That each file in question is a copy of a copyrighted work.
3. That plaintiff holds the copyright to the copyrighted work.
4. That the copy was illegal and not fair use.
Unfortunately, the political and legislative climate in the U.S. means that often times none of that is considered. A list on a piece of paper can be considered "evidence", regardless of whether the files were actually available or not, and, if actually available, regardless of what the files actually contained.
What upsets me the most is the ASSUMED "damage" caused by each available file. Even if all four points above are proven beyond a reasonable doubt, that speaks nothing of how many copies were actually made (how many people actually downloaded the files). Instead, the law ASSUMES that a specific number of downloads occurred, thereby arriving at a complete arbitrary "damage" assessment.
$750 to $30,000 "damage" is ridiculous for sharing one song. Even with a high-priced CD at $20, containing 14 songs, each song is "valued" at $1.428571. Of course, that includes packaging, marketing, profit for the various distributors and resellers, etc. But for the sake of argument, let's take that at face value. That means that AT A MINIMUM, the law ASSUMES that each song was downloaded 525 times.
The RIAA is seeking over $1.2m in compensation! That's just rediculous. Even the RIAA has admitted that under a dollar per song is "in the ballpark" for compensation. Their antics remind me of the "Pants Judge" who wanted a million dollars compensation from a drycleaner for supposedly loosing his pants. We all loose when this sort of thing is taken seriously. I think these guys all belong in the same category as Paris Hilton. Then again, maby I'm being too easy on them ... Paris doesn't know any better.
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the first consequence will be to send the message that it is difficult to prove guilt and therefor encourage more file sharing. I don't believe this case will go til the bitter end.
but if it does and Thomas actually winns, she could then sue the RIAA for bulling her or whatever other reason she finds. I think her lawyer has an incentive to stay in the highlight.
this will be an interresting one to whatch. it might be one of those rare occasions where the plaintiff ends up paying the defendant to spare them a humiliation.
there is allready a class action against the RIAA and this could prove perfect precedence.
I was once a victim of prolific spamming to my mobile phone from one number. I knew who it was and I went to the police. They dismissed it immediately stating one thing, the police, myself, nor any body could prove that the accused individual was using that mobile phone at that given time with that sim card inside to make those calls.
Would this not apply with these radical RIAA claims, stating that the RIAA could not prove that the accused party was at that given time using that computer to supposedly share those files?
yes - have a look here
it says this "The RIAA submitted screenshots of the shared folder SafeNet discovered on KaZaA, stipulating that the plaintiffs owned the copyright to the songs. One problem: the documentation provided by the RIAA doesn't appear to support the claim."
and then there is a list of songs - who is the copyright holder according to the RIAA and who is the copyright holder according to the certificate of registration
"Appetite for Destruction" - UMG Recordings - The David Geffen Company
"The Comfort Zone" - UMG Recordings - Polygram Records
"Control" - UMG Recordings - A&M Records, Inc.
"Frontiers" - Sony BMG - CBS, Inc.
"Let it Loose" - Sony BMG - CBS, Inc.
"Get a Grip" - UMG Recordings - Geffen Records
"Hysteria" - UMG Recordings - Mercury Records
"If You See Him" - UMG Recordings - MCA Records Nashville
So it seems that the RIAA says that the song is theirs while this is not the case.
this will be an interesting trial
This will show the RIAA for what it is and finally put an end to their bullying tactics.
Seeking any kind of damages regardless of amount is ridiculous, no artist has suffered because of file downloading, it's just plain wrong and these corporates should be stopped from targetting private citizens.
RIAA should be counter sued by every single person that has filed their settlement......that does lead me to wonder, how much of those settlements has gone to the artists concerned
For all the bullying and money grabbing tactics that the RIAA have been doing to people I wish her all the best and hope that justice will actually be done.
If the RIAA were serious about their precious files they would have taken each and every one of those "Illegal" file sharers to court instead of just forcing kick-back money off them.
Taking them to court proves a point, leeching money off them just gives the absolute impression that they are just greedy bullies who are only in it for the money.
I really, REALLY hope the RIAA gets shafted for this...shafted right up the wrong 'un!
The first thing a jury is going to remember that the owner replace her hard drive.
The second thing is that they are going to remember is that the RIAA has logs that the IP address in question had x number of downloads on specific dates and times. (Logs can be forged so you have to take them with a grain of salt.)
Third, there will have to be evidence linking the IP address to the defendant.
If the IP address is static, then she's toast. Even if there's a wi-fi connection doing NAT and her wi-fi was unsecure. She's still going to be tied to the IP address.
IMHO all you will have is enough circumstantial evidence.
WHat the jury will do, is going to be interesting.
@Damages: Phil, THANK YOU for bringing up the point about lose / loose - I am SO sick of seeing poor grammar and spelling, but often feel I'm being a bit sensitive.
Now, tell me, who gets annoyed when they hear a broadcaster or inteviewee on the radio using the 'also ... as well' construct?
(speling - sic :)
The damages amount (US$750 to US$30,000) is a statutory amount laid down by US copyright law. Each incident of copyright infringement makes you liable to an amount in that range. It's intended to be punitive. However, AIUI, to be liable for such damages, the plaintiff would have to show exactly how much infringement had occurred - something that the RIAA will find rather difficult in this case, ISTM.
I agree with Chris on what ought to need showing, but it depends to some extent on whether the RIAA's lawyers can flimflam the judge into accepting their version of the law - that making files _available_ to share on the Internet (should they be able to prove that the defendent did such a thing) is the same thing as actually making copies or allowing them to be made. Unfortunately, encouraging or enabling copyright infringement is as illegal as actually making the copy, so making files available to share is actually illegal regardless of whether any copies are made. (The damages, though, depend on making copies AIUI.)
Even if there's proof, I'd suggest the judge instruct her to pay only $0.05 for every time that a song can be PROVED to have been downloaded from her upload, and $0.5 for every song that can be PROVED (with indisputable third party evidence) to have been converted to a permanent hard copy.
And if the total of that comes to significantly less than the $1.2M being claimed, costs should be awarded AGAINST the RIAA for the use of misleading and bullying tactics.
Taking action against the web servers that coordinate the downloads is fair enough -- though even then, it should be backed up with a reciprocal obligation to make the ALL the material available for LEGAL download at a cost substantially less than buying as hard copy.
My take on the damages front is that none should be awarded in the event that this woman is found guilty.
Why? Because if her files hadn't been available, the alleged downloaders would have downloaded other copies of the same material from elsewhere. So the fact that she as a single individual shared some files makes no difference to the financial impact on the company suing her.
Not so many years ago, a great English teacher was lost in a school play, as the noose around his neck wasn't loose enough. We now lose thousands of people in eloquently written paragraphs, as they lost their teacher.
I get messages from people every time I sell something on eBay, saying "I brought this off you". No you bloody didn't, you bought it.
1) Kazaa used to do a search on your hard drive for files to share. If you just clicked your way through the intallation without reading, it would just share your files without you realising. I admit you would have to be dumb to do this, but there is no shortage of dumb people in this world. To convict someone based on that would be just like convicting someone of hacking because they installed a virus-infected peice of software on their machine, and that was used to hack.
2) If the machine was used by several people, they would have to prove that it was her who shared the files (to be fair, although since when has the law been fair?). I know I installed alot of stuff on my parents PC when I was a kid.
3) Back at the point when Kazaa was in use, assuming the states was much like the UK at that point, DHCP was used to give out IPs, and the lease was short. And using a screen name is no eveidence, because ANYONE can use ANY screen name (As far as I remember, there were no Kazaa "Accounts", no password protection).
4) If she wanted to destroy eveidence, she could've just "burned" her HDD. Writing over with random data (4-5 times to be on the safe side) wipes out all remnants of info. I have done this several times when HDDs are dying within waranty, because I copy all my DVDs, CDs etc to my server to play from anywhere in the house (or world for that matter), but HDD companies have been known to inform the record industry if they see anything even slightly dodgy. I dont want the hassle, so I make sure nothing looks dodgy, even though I can prove it wasnt.
5) Thats a stupid amount of damages. The people who download music probably wouldnt buy it anyway, but copy mates CDs etc.
I hope RIAA loose. They are eejits and bullies. May they rot in hell (or do we have a tape safe big enough for all of them to fit in?)
What get me is this. The "adverts" which come before films all try to cast some sort of equivalence between illegal copying and property theft "you wouldn't steal a car". Yet the penalties they are seeking for illegal copying offences are massively more severe than for most cases of theft, not far short of Draconian.
You know, RIAA/BPI *may* have a point about the scale of lost earning resulting from people who offer large numbers of songs by Atomic Kitten/Justin Timberlake which would otherwise attract the pre-pubescent dollar/pound. But then the "piracy is theft" (wrong on so many levels) message implies that there is a single loss to the copyright holders, not a repeated one.
I think the method for calculating damages the RIAA has used has already been found to be unconstitutional, and I'm surprised that the RIAA is upset she had her hard disk replaced. Aren't they supposed to provide evidence BEFORE they commence a trial?
I hope she takes them for a serious chunk of cash, and I also hope the Class Action suits create a large crater in their cash flow. This club has been ripping us off long enough. Their arguments make me think of the guy in "Thank you for smoking"..
If a dry cleaner were to loosen my pants I would expect compensation sufficient to repair the pants to their former tight state and probably compensation for the emotional damage caused by my pants falling down.
Since judges are expected to keep their pants on such damages may be considerable.
>"We all loose when this sort of thing is taken seriously."
No, I for one, have retained pant tightness.
Briefly on topic, the damage is not some average of the cost of songs on a CD, firstly each song has a different value, secondly it may be the cost of broadcast rights for that song which is a very different figure.
Unrelated question: When the hell did the verb "to lose" disappear from the English language?
I reckon it would of ;-) occured about the same time society stopped ridiculing gormless cretins for their lack of communication skills. One side effect of the Internet is that gobshites (open mouth first, think what to say later) see each others text 'in print' thus reinforcing the notion that severly limited communication capabilites are acceptable.
I think you're all missing the point; the RIAA doesn't give two shits whether it wins or not. If they win, they get a legal precedent, even if the defendant is only fined one cent per song. If the defendant wins they still have had the stress of a jury trial and ruinous expense and it'll send a message of what will happen to anyone else that wants to take this to trial. The RIAA effectively has limitless cash to fight these cases.
The second point is that the defendant had absolutely no legal right to share any of these files. The law is absolutely clear on this front and there is no moral argument to make, only a legal one. Abstract arguments about the nature of the record industry will just get you laughed out of court. The defendant will get nothing out of fighting this case because any jury will almost certainly find that she broke the law beyond reasonable doubt.
If you don't like this state of play then you need to start rethinking how we address property rights which goes far beyond the MP3 parasites which you're all clearly trying to defend.
"The defendant will get nothing out of fighting this case because any jury will almost certainly find that she broke the law beyond reasonable doubt."
You seem to be forgetting that, at least in theory, the laws are made by the people for the general good of the people. If enough people don't think that the RIAA is acting legally or in the best interests of the majority of the people, then eventually the laws will change to reflect this. This may start with a jury sending the RIAA a very clear message that their behaviour is NOT acceptable.
"The second point is that the defendant had absolutely no legal right to share any of these files"
Whether that is true or not, the RIAA still needs to prove 'beyond reasonable doubt' (your words) that those files were 'shared' (whatever that means). Just assuming that people are guilty because your employer (the RIAA - it's so obvious) says so, is not the best advert for a judicial system.
No court of law (well except in the USA super market justice where every one can buy judgement with enough money) should accept any case from the RIAA. as this is a openly criminal organisation with proven illegal records of getting "proof" of songs infrigment. with wireless internet and hacking so rampant every where, a IP address means nothing. But then again since they RIAA (and its parthner in crime the MPAA) will just buy they in in court as usual. (as they as pay the USA judicial system for put out the most anti-consumers laws every conveive.)
Just they fact that the RIAA as illegally obtain his proof
"If they win, they get a legal precedent, even if the defendant is only fined one cent per song"
True, but if they lose then future defendants get a legal precendent as well. The prosecution will apparently involve many of the standard arguments the RIAA has used in the past to obtain settlements. If the court finds these to be big hairy ones then the RIAA has to find a new revenue stream.
You seem to have already formed your conclusion despite the fact that the case has only just started; I am respectfully hopeful that you are not on the jury. ;)
In refrence to the files,
How do they know that the files in question are the files they think they are?
Could they not be renamed txt files, with say lyrics of a particular song.
For example a file might appear to an mp3 file called howblueareyoureyes.mp3, but just be a txt file howblueareyoureyes.txt renamed.
Can they tell the difference, does MediaSentry actually download the files from a p2p user to test them to see what they are. If this is the case, does MeidaSentry have the premisson of all the copyright holders of all the songs they download to do so?
I don't know how they do it, maybe it will show up in court.
I think that to say that we noticed that such and such a file named *.mp3 was on your computer and that your ip was *.*.*.* at the time does not really prove much.
Perhaps ppl that share mp3's should consider posting a txt or mp3 EULA that bans ppl from looking at their computer or sharing in their files if there the end result is to bring/ investigate legal action on behalf of the RIAA. This like most EULAs being one that should be considered an invite, an invite to look at my files and share in them only if you are not associated with the RIAA. If you don't like my EULA then bugger off and don't look.
Not sure where the law stands on this. Maybe someone could help. Seems to me that if it is my computer that Im allowing access to then I can set my own legaly binding EULA that they should find and read before they access it. If everyone did it, the RIAA would know about it, and have to go looking for it and not claim they did not know.
Along with damages to paid by the RIAA set out under such a EULA, would that also make the evidence they collect illegal?
It's a sad fact but from my observation if someone is pointed at as a "criminal", the jury wants him/her to prove their innocence rather than than giving them the benefit of the presumption of innocence until proven guilty, at least in my neck of the woods (Montana USA). I hope Mom has a very good attorney and whips RIAA's collective butts.
Let's say i own a actual record or tape not a cd and i download a song off of whatever "illegal" P2P or site then am i infringing on copyright? as i do own a copy of the song but am unable to copy it to another format in this case MP3 does that infringe? even MICROCRAP allows for a copy of their junk to be made for back up purposes?
A computer exists somewhere from which some material is downloaded. Now, what if the person operating the computer is unaware that files are being shared by some other program. A trojan for instance, might come into this category. What if she didnt notice the dialogue box asking if she wanted all her files to be shared, or, what if the person installing the software wished to be malicious and left her computer open to file sharing.
So much as I would deplore illegal activity, I rather think there is more to be learnt when the evidence is presented in court. I think there is more to be examined than IP address and a file list. Just having a file named help.mp3 does not mean it is a Beatles recording of a similar name. Also, so far as I know, MediaSentry are not a law enforcement organisation, so are not permitted to break the law, unlawfully downloading copyrighted material for example, to demonstrate that some one else is breaking the law.
I think this could be interesting to watch. Especially if the RIAA are not the copyright holders, I thought the record producers owned the copyright, so from where does the RIAA get its standing to sue in the first place, based on the illegal activities of another organisation.
Tie me up in knots, cover me on chocolate and throw me to the lesbians.
It's because of you that the famous charity organisation SonyBMG is falling apart!
If you copy a SonyBMG CD song into a Sony mp3 player you are a thief!
If you make a copy of a SonyBMG CD onto a blank Sony CD-R you are a thief
If you use a Sony Playstation3 to rip a SonyBMG CD you are a thief!
Sony sold me a Video Recorder so that I could copy TV and Movies.
Sony sold me the tape to use to copy TV and movies onto.
Sony sold me a Cassette Recorder and told me I could use it to record Music from the Radio.
Sony sold me a Radio with built in Cassette Recorder to make copying Music easier.
Sony sold me the Cassettes and told me they could be used to record music off the Radio or from my Record Player.
Sony sold me a CD-DVD Burner and told me it could be used in my computer to make copy's of Music and Movies.
Sony sold me the disks to copy the Music and Movies to.
So...now I've done as Sony suggested, they accuse me of thievery!!!!
I wasnt a thief all these years when they were taking my money!!!
So when is the hearing date for Sony's court appearance for aiding and abetting my crimes??
@DaAngel: Yes, why don't we, The People versus big rich anti-filesharing inc., create a setup where one is obligated to UPLOAD so-called copyrighted material BEFORE being enabled to download at all? That would make every participant as criminal acoording to the RIAA as they themselves are when checking up on your downloaded content.
Oh wait, such systems already exist, one of them is called bittorrent.
By the way, people from the RIAA:
Way to make new enemies! This is definitely going to be your last straw. Be ready for a huge downfall in income, because that is what I would guess you'll be experiencing the coming years.
I hereby pledge not to buy one item or product ever again that might directly or indirectly finance your institution.
I recommend you SmartHide by Arovax - one click of a mouse and no settings headache. You push a button and a tcp/udp tunnel is created and you don't need setup the software. All the programs work through tunnel..p2p/email/web/games/download music.. :-)
"The second point is that the defendant had absolutely no legal right to share any of these files"
Actually, do we know this?
If the defendant owned the CD, ripped the songs and then shared them, that they are not allowed to do, BUT...
if the defendant downloaded the song itself, and then shared it, to prove that she didn't have the right to share it, don't the RIAA have to determine who she downloaded it from, and prove that this person didn't have the right to distribute it, and if they also downloaded it, keep following the trail until they can finally find either a person who illegally Riped the song, or the other alternative, find the person who originally released it onto the network, who may actually have the rights to do so.
Afterall, if she is a lawabiding person, she has no reason to believe that a file being made available isn't available legally, like many open source stuff etc..
Its the originally releaser who (may have) broke the law, anyone else is just re-releasing the work with the same copyright information which can be assumed from finding it, that it was freely available to share.
Afterall, there are people/companies who have the rights to release a file, only the original released should be in ANY trouble!
Just random thinking
I was just thinking about how any ppl have posted on this topic, how many niggly ways according to the law that the rap could have been beat, excuse the pun.
Here the the USA, there are a lot of laws, that say this and that. However law enforcement, judges and lawyers here, live with the small town ego. They seem to adopt to the idea that they are all important and what they say goes, no matter what the law says. This is especially true when a Judge or police office is confronted by someone in power ( multinational RIAA) they see that the powers that be are now looking at their actual actions, that big brother is looking down and invading their own personal godhood. They act to protect this and make the big bad power go away so that once again they can be the one, in their own world. In court here, what the judge says is what happens, becomes legal on a local basis with law enforcement ready to back it up, even if, the judges decision is illegal. Niggley points, all the legal ones, that may prove your case can be deemed illegal, not revelant, or just overturned by a judge.
Recently, I was involved in a child custody battle here in the usa. The child in question sent an email to the mother. It had a picture of the child. The mother used this email to prove that child was in contact with her, and wanted to be with the mother. The Judge ruled after listening to no expert, or constulting anyone, that the mother lied about the email, because, the yahoo email address that the father of the child had provided to the judge, contained no capitial letters, yet the one the mother had provided had. The email address, ip, where the same, just the caps that differed. The capital letter in question was the A at the start of the email address. Thus the judge in her court rulling specified that the mother had lied about the email address from which the email had came from because of a capitial letter in an email address.
Not leggal? Sure ain't. Niggly point? sure is. Was the judge wrong? Sure was. Is there niggly points in the ThomAs case? sure are. Did she lose, sure did. Can she fight it, sure can't. Was it leggal? nope. What next? Donate to her fund to help her bring this case to the attention of millions worldwide. Donate to her case so that she has the time and money to fight the niggly points. donate to it so that an ordinary person can actually fight for justice against an ill informed judge. A judge that was bullied and intimated into making an untested legal statement to a jury. A statement that stated that having files, and running a program is distrubition. This is not legaly correct. It is is normal life that this happens. But to be legal, it has to be proved, summary judgement is not a vaild enough.
A large gap exists here. In the proponderence of edivence. It seems to become more and more evident as the once free internet, and idea, of being able to say what you want when you want is casualy erroded away by multinationals and coperate bullies exerting pressure on the top line of defense for citizen us, the goverment.
The question of a crime that took place here basically comes down to two things.
Is it illegal to make copies of your CD's for your own use. Rememember, Sony are right in stating that this is illegal. You could not do it before your cassette tape of Queen broke. However this needs to be tested now again now that moderen tech is here, once again. Two. To be considered quilty of disturbution, has one actually to distubute files, or merchandise. I think the ans to that to that has to be yes.
The copyright holder is only losing gain, by any test, when and a unauthorised exchange of their copyrighted product takes place. There can be no cognitive
pre crime in today’s society. They only lose there copyright status when an exchange actually takes place. Before that happens, thay have lost no rights. they have lost no money, no right to be the only ones to distrubite the merchandise. for a judge to say that this is the case, is illegal. No crime has taken place. I go shopping all the time, but unless I take something without paying for it, im not breaking the law. Nor is the seller. This is because no transaction has taken place. No copying of fobidden material. Just an exchange of information that enables the buyer to be aware of what they precive to be the terms of the sale of exchange. The exchange of information between ppl outweighs any legal goverment or multinational coperate id that I know. Hell with the copa act in the USA, and similar in the UK, it is an offense to even see something that the goverment does not like.
I guess that ppl got tired of paying sky high prices to Sony, and the like for CD's, that cost a buck to make. I guess that many ppl got the fcuk you attitude. That I can do what I want to do attitude. Well it cant be done. PPL do lose jobs because of copyright theft. But the ppl broke free with the internet, were able to talk, to communicate, and share their shit. local bullshit from judges and law enforcement and finding a new law, a new breed of consumer has been born.
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