Thursday, October 4, 2007

Judge won't allow court to be used as RIAA sopabox

Judge bars RIAA president from testifying in Capitol Records v. Thomas

Duluth, Minnesota — Testimony in Capitol Records v. Jammie Thomas wrapped up today after Judge Michael J. Davis decided against allowing RIAA president Cary Sherman to testify in the case. Sherman was to have been called this afternoon after representatives from the record labels involved in the case finished testifying as to their ownership of the copyrights.
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After a brief recess this afternoon, plaintiffs' counsel Richard Gabriel and defendant's counsel Brian Toder made their cases before the judge as to the relevance of Sherman's testimony. Toder argued that Sherman's testimony was not relevant to the question at hand, the fact of whether Thomas was liable for copyright infringement. Gabriel said that Sherman would be able to tell the jury why this case was significant and, more importantly, describe the harm the RIAA believes piracy has caused to the music industry.

"I don't want to turn this case into a soap box for the recording industry," Toder argued in response.

After Judge Davis initially struck Sherman from the witness list, Gabriel continued pressing his case, saying that Sherman would be able to draw the jury's attention to "the massive problem of file sharing" and testify that the RIAA is "not out to get millions in damages, but to prove a point." With the judge refusing to reconsider his motion barring Sherman testifying, the case wrapped up with witnesses from UMG, Warner Bros., and EMI Records North America, all of whom testified that the record labels did indeed own the copyrights to the recordings in question.

Thomas takes the stand.

The Federal Courthouse in Duluth
This afternoon also marked the appearance of Jammie Thomas on the stand. She was called by the plaintiffs immediately after lunch, who started by questioning her about her experience with computers. After establishing that she has accounts with, MySpace, plays games online, and has an Internet account at home, Gabriel then asked her if she posted to the "anti-RIAA blog" Recording Industry vs. The People under the username "tereastarr." After answering in the affirmative, questioning then turned to whether there was another PC in her home the night Media Sentry discovered the tereastarr@KaZaA account. She said that there was not.

On a number of occasions during her testimony, Gabriel asked Thomas to refer to her depositions, reminding her that she was under oath when she gave the depositions and was under oath on the stand. Gabriel then proceeded to show the jury the ubiquity of the tereastarr username in Thomas' online persona. The jurors saw screenshots of her and profiles and the Start menu from her Compaq Presario PC, all of which had the tereastarr username.

Gabriel also questioned her on whether any of her ex-boyfriends had used the computer and as to when she started password-protecting the admin account on her Windows XP machine. He established that after breaking up with a boyfriend in 2004, she began using a password for her admin account and that she was the only one who knew what it was.

The questioning then turned to her CD-ripping habits. In her deposition, Thomas said that she ripped no more than six or seven CDs per day, but on the stand today, she said she could have ripped over 2,000 songs in a little over two days. When shown the screenshots taken by Media Sentry of the KaZaA share, she said that she "understands that the labels say this is a screenshot of the PC they found on KaZaA," but denied ever downloading or using KaZaA.
Gabriel then turned to her eclectic music collection, comparing some of the bands seen in the KaZaA share to found in her My Music folder upon forensic examination of her hard drive. He rattled off bands such as Lacuna Coil, Cold, Evanescence, Howard Shore, Green Day, Black Sabbath, Creed, Belinda Carlisle, A.F.I., Dream Theater, Sheryl Crow, and Enya, concluding by asking, "Does it surprise you to learn there are more than 60 artists you listen to in the shared folder?"

"No," replied Thomas.

Gabriel then asked her about her days as an undergrad at St. Cloud State University and some research she had done on Napster. In 1998 or 1999, she did a research project, creating an account on Napster and downloading some music to a college computer. Thomas agreed with Gabriel's assertion that she concluded at the time that using Napster was legal.
In another indication of the degree to which the recording industry is leery of copying music, Gabriel then asked her about burning CDs. Thomas said she had burned two or three compilation CDs for boyfriends, including one called "From me to you" given as a Valentine's Day present to her ex-boyfriend Kevin Habemeier. She also disputed Habemeier's testimony about the circumstances surrounding the notice she received from ISP about the notification of copyright infringement.

Under cross-examination by her attorney, Thomas explained the date discrepancies. She originally had said that she bought the PC from Best Buy in 2003 and that the hard drive was replaced in January or February of 2004. After her forensic expert inspected the hard drive and found that it wasn't manufactured until January 2005, she then said that she bought the PC in 2004 and that the hard drive was replaced in March 2005. "I was a year off on everything in my deposition," she said. He also said that the "jury could do the math" on whether it was possible for her to rip 2,000 or so tracks over a two-day period given the demonstration earlier in the day.

Toder then concluded by asking her if she ever had KaZaA on her computer and if she had ever downloaded the KaZaA application. She replied in the negative to both queries.

With the record company representatives done testifying and Sherman barred from appearing in court, both sides rested their cases and began work on the jury instructions. Closing arguments will begin tomorrow morning, with each side given a half hour to summarize their cases. The jury will then begin deliberations, and we may have a verdict to report tomorrow.

RIAA may win battles but it's losing the war

Duluth, Minnesota — A Sony executive said what many observers have suspected for a long time. The RIAA's four-year-old lawsuit campaign is costing the music industry millions of dollars and is a big money-loser for the record labels. The revelation came during the first day of Capitol Records v. Jammie Thomas, the first file-sharing case to go to trial (it was formerly known as Virgin v. Thomas, but the sole Virgin Records track was stricken from the complaint, making Capitol Records the lead plaintiff).

After RIAA lead counsel Richard Gabriel finished his direct examination, Thomas' attorney Brian Toder began his attempts to undermine the labels' case. He focused on apparent inconsistencies from the testimony of Jennifer Pariser, Sony BMG's the head of litigation. Toder also got Pariser to admit that IP addresses and screenshots "don't identify human beings."
Pariser also said she had no idea why Virgin Records dropped its part of the case. "The RIAA and the plaintiffs have the same lawyer and coordinate the lawsuits," Toder noted. "You don't know why they bailed on the case?" Pariser said she had enough trouble keeping track of Sony's litigation, let alone what the other companies are doing. Perhaps—and this is just a guess—it's the money.

Lawsuits are punitive, not business.

One of the biggest bombshells from the cross-examination was Pariser's admission that the RIAA's legal campaign isn't making the labels any money, and that, furthermore, the industry has no idea of the actual damages it suffers due to file-sharing.

The admission came during questioning over the amount of damages the RIAA is seeking in the case. Toder asked Pariser how much Sony was suing the defendant for, and she replied that the amount was for the jury to decide and that the labels weren't suing for actual damages. As is the case with the other file-sharing lawsuits, the record industry is only seeking the punitive damages available via the Copyright Act, which can range from $750 to $150,000 per song. "What are your actual damages?" asked Toder.
"We haven't stopped to calculate the amount of damages we've suffered due to downloading, but that's not what's at issue here," replied Pariser, who was reminded by Judge Michael Davis to answer the questions actually asked by Toder, not hypotheticals.
Toder then pressed the Sony executive on the question of how many people actually downloaded music from the defendant. "We don't know," she replied. "I can't identify any other entities aside from what SafeNet reported, but I know that many others did... that's the way the system works."
Toder then raised the question of the RIAA targeting the wrong people in its lawsuits. "How many dead people have you sued?" he asked, a question that was blocked after Gabriel objected. Toder then took a different tack, asking Pariser if she recognized the names of Gertrude Walton, Sarah Ward, Cindy Chan, and Paul Wilke—all innocent victims of the RIAA's driftnet tactics.
The next line of questioning was how many suits the RIAA has filed so far. Pariser estimated the number at a "few thousand." "More like 20,000," suggested Toder. "That's probably an overstatement," Pariser replied. She then made perhaps the most startling comment of the day. Saying that the record labels have spent "millions" on the lawsuits, she then said that "we've lost money on this program."

The RIAA's settlement amounts are typically in the neighborhood of $3,000-$4,000 for those who settle once they receive a letter from the music industry. On the other side of the balance sheet is the amount of money paid to SafeNet (formerly MediaSentry) to conduct its investigations, and the cash spent on the RIAA's legal team and on local counsel to help with the various cases. As Pariser admitted under oath today, the entire campaign is a money pit.