Ripping a CD... UPDATE

[Nate the great]

(this is an update from here)

I just heard about a proposed Jury instruction in this case.

from Ars Technica:

After both parties rested in Capitol v. Thomas, the attorneys for both sides began going through Judge Michael J. Davis' proposed jury instructions. Instruction no. 14 proved to be a sticking point, as Thomas' counsel Brian Toder told Ars tonight that the judge's proposed instruction indicated that the plaintiffs must show that an actual transfer took place in order for there to be a finding of infringement. "The mere act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network without license from copyright owners does not violate the copyright owners' exclusive right to distribution," reads the proposed jury instruction. "An actual transfer must take place."

http://arstechnica.com/news.ars/post...-wraps-up.html


At first, I thought the instruction was a little unreasonable. It seemed like a hard thing to prove.

But then I realized that it would have required little extra work on the part of RIAA to get that proof. All they would have to do is have an employee log into Kazaa, and download songs from someone who has them available. I am moderately surprised that they don't already do that.

[nekokami]

No... that would only show that SOMEONE is sharing the files. To prove that this particular plaintiff is sharing the files, they would have needed to do this before they seized her equipment or whatever, and show that some of the files they received through P2P came from her IP address. Retroactively, the best they can probably do is subpoena the ISP logs of traffic and look for outbound P2P connections, but even that won't prove that the outbound files were copyrighted music-- they could have been copies of her dissertation or something.

[Nate the great]

Originally Posted by nekokami

No... that would only show that SOMEONE is sharing the files. To prove that this particular plaintiff is sharing the files, they would have needed to do this before they seized her equipment or whatever, and show that some of the files they received through P2P came from her IP address. Retroactively, the best they can probably do is subpoena the ISP logs of traffic and look for outbound P2P connections, but even that won't prove that the outbound files were copyrighted music-- they could have been copies of her dissertation or something.

I have to disagree with you. I have been following the case on Ars Technica. I think the plaintiff presented a very good case to prove she did it. All they are lacking to prove that one jury instruction is a record of songs downloaded from the Kazaa username. This would have been a very simple thing to provide.

[nekokami]

Missed the point about the Kazaa username.

[HarryT]

Seems 100% certain to me that she's guilty. Equally, however, I think it's ludicrous to try and claim a million $ in damages, or whatever it is they're asking for. The punishment should fit the crime. Yes, it was a stupid thing to do, but should it be something which financially ruins you for life? I don't think so. I don't know what would be a reasonable punishment - perhaps $20,000 or something like that? Enough to seriously hurt and set an example to others, but not enough to ruin someone.

[JSWolf]

$20,000 could be enough to ruin someone. Who's to say what is appropriate?

[HarryT]

The judge, presumably? Is it the judge who sets the amount of damages? That's the way it works in our courts.

[NatCh]

This is a civil case, right? If so then the issue at hand ought to be did she cause harm and how much. Damages should (in theory) be in line with the actual demonstrated harm, and any punitive award would be where they'd send the message to "other" infringers. I don't know what, if any, limits would apply there in this case.

Certainly if she's proven (to the jury's satisfaction) to have caused $1 million in harm to the plaintiff then the damages should be in line with that, regardless of her actual means. It's the way it works. There's no limitation tied to one's means to the actual harm one can cause: all the means a person needs to burn down a building for instance, is a few bucks for gas and matches, regardless of the value of the building.

[Nate the great]

Originally Posted by Nate the great

But then I realized that it would have required little extra work on the part of RIAA to get that proof. All they would have to do is have an employee log into Kazaa, and download songs from someone who has them available. I am moderately surprised that they don't already do that.

I goofed slightly here. The RIAA did get songs from her. I missed that when I read the article before. Since that's the case, I encourage them to go after whatever they can.

On this one issue I stand with Harry. Uploaders are scum.

[nekokami]

But as NatCh pointed out, in a civil case they're going to have to prove damages, and that's going to be tough. I don't think they are going to have an easy time proving beyond probable doubt that someone out there who would have paid them for a copy of the music didn't do so because of her actions.

If they can't actually show damages, she could be found against and fined $0. It happened to me in a civil suit (under very different circumstances--nothing to do with file sharing).

[UncleDuke]

if they sued for 20k they would be laughed out as the legal fees are more than that, you never get more than you ask for

[NatCh]

Originally Posted by nekokami

I don't think they are going to have an easy time proving beyond probable doubt that someone out there who would have paid them for a copy of the music didn't do so because of her actions.

What's the standard for a Civil case? I can't remember....

Criminal is "Beyond a reasonable doubt" but I'm thinking that civil is something about a "preponderance of evidence" ... maybe that varies from state to state ....

[nekokami]

Sorry, you're right, it's "preponderance of the evidence" for civil cases. I still think they're going to have a hard time proving damage. The plaintiff has already admitted that they don't know how much, if anything, filesharing is costing them.

[Steve Jordan]

Originally Posted by Nate the great

I just heard about a proposed Jury instruction in this case.

from Ars Technica:

After both parties rested in Capitol v. Thomas, the attorneys for both sides began going through Judge Michael J. Davis' proposed jury instructions. Instruction no. 14 proved to be a sticking point, as Thomas' counsel Brian Toder told Ars tonight that the judge's proposed instruction indicated that the plaintiffs must show that an actual transfer took place in order for there to be a finding of infringement. "The mere act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network without license from copyright owners does not violate the copyright owners' exclusive right to distribution," reads the proposed jury instruction. "An actual transfer must take place."

http://arstechnica.com/news.ars/post...-wraps-up.html

I understand that, as of this morning, the instruction has been changed: Simply making the files available DOES violate the copyright owners' exclusive right to distribution. "If there's an index and something behind it, that's distribution," argued Gabriel.

[NatCh]

Originally Posted by nekokami

Sorry, you're right, it's "preponderance of the evidence" for civil cases.

I don't think I can claim that one (if we're even keeping count!) -- I really didn't remember.

Originally Posted by nekokami

I still think they're going to have a hard time proving damage. The plaintiff has already admitted that they don't know how much, if anything, filesharing is costing them.

Heh. That does make it difficult. Well ... it ought to make it difficult.