Thus far, two US file-sharing cases involving individuals have gone to trial. Both resulted in victory for the recording industry, one of them twice.

In 2007, Jammie Thomas was sentenced to pay damages of $222,000 for 24 counts of infringement ($9,250 per infringement). Later, a retrial was granted, and in June 2009 a jury returned a similar decision, but with increased damages of $1.92 million ($80,000 per infringement).

Meanwhile, in July 2009, Joel Tenenbaum was also found to be willfully infringing, and a jury awarded damages of $675,000 ($22,500 per infringement).

On July 6th 2009, Thomas filed with the court that the damages were constitutionally excessive, and now Tenenbaum has too.

The central point of the case revolves around a US Supreme Court precedent, which is quoted in the filing as “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”

Compensatory refers to an amount to make up for actual losses (the damages suffered) and the punitive damages are designed to act as a deterrent for others and to punish. In this case, states the filing, at best it’s in the low 5-digits (22,500:1), and could easily actually be in the upper-5 digits (65,000:1 or greater).

Other considerations are put forward as well, including that the DRM imposed on music until 2007 (and still imposed on audiobooks) encouraged the use of P2P economically; or that the ‘egregiousness’ of the offense is low in comparison to the penalties – that it’s at most as bad as shoplifting – but the constitutionality of the damages is the main thrust, as it is with the Thomas case.

Time will tell as to how the courts will decide, but it may be that the very success in gaining such large damages awards will lead to a great diluting of the power of statutory damages. Very much a case of winning the battle, but losing the war; not what was expected when the papers were first filed, all those years ago.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Perhaps the most insidious aspects of propaganda is that you often don’t know when you’re witnessing it. One of the easiest ways to define it is as something that presents a clear position on a topic, good and bad, with little reference to the facts in an attempt to sway a group of people into believing a certain thing. There are three examples of this to draw on. One is the term ‘intellectual property‘. It’s a term that infers that copyright is a property that can be owned, and by extension, can thus be ‘stolen’. In actuality, it is as its name suggests, a right of copying. However, the term ‘Intellectual Property’ continues. It’s also got the secondary aim of making it seem appropriate to lengthen terms, as by terming it property, and not a right to an action, it’s defined as an asset. Assets are easier to ‘protect’ than a right to do something, certainly over a monopoly-control of distribution.

The second is the association with ‘theft‘ and stealing. Copyrights can only be ‘stolen’ if the actual rights are taken by someone. That is, if the person who owns the right has the right taken from them by someone else. That is also why copyright cases are not theft cases, although cases treated as such would actually be better, as criminal cases have a lot fewer of the problems identified in part 1, as we have also pointed out in the past. It would also significantly reduce the penalties. As Prof. Lessig pointed out in Free Culture (Pg 190), under California law the biggest penalty for stealing a CD is $1,000 – for infringing the copyright of that same CD it’s $1,500,000 (assuming 10 tracks).

The third and most important, are the oft touted ‘loss figures’ and studies. Every month or two an industry group, or company paid by an industry group publishes a ‘losses due to piracy figure’ or other claim. These figures attempt to quantify the unknown (and unknowable) and give a number that can be used in statements. The problem with all of these numbers is that they’re guesswork and estimation, just dressed up nicely. It’s impossible to tell what people are doing, and how many are actually infringing copyright so any figure on the amount of copyright infringement is just a guess. Then there is the question of how much that infringement impacts sales. So far industry data says it reduces sales, while independent studies show it either doesn’t affect them, or increases them. However, they’re not consistent on how much effect there is – some industry studies vastly contradict others with their values for the same thing (such this example)

Nor is this a new thing. Who can forget then MPAA president Jack Valenti calling the VCR the ‘Boston Strangler’ of the film companies. A few short years later that same Boston Strangler was providing those film companies with the majority of their income. The same thing happens time and time again, player pianos, radio, cable TV, the VCR, and now computers and the Internet. Like Chicken little, the sky didn’t fall down the last few times, and is unlikely to now for those companies, if, as before, they adapt and embrace the new technologies. Else they’ll go the way of the big train companies when 40-ton trucks became common, or saddlers and livery stables when the car was made affordable; an anachronism of old technology.

Of course, at the end of the day it comes down to the law. Again, there’s a problem. When you have politicians that are paid heavily by the copyright industry, or judges that are part of an industry group, then the laws are not going to have a firm basis in reality, nor will there be a fair and impartial evaluation of those laws. In some cases, prominent members of the music industry have been let off their crimes by court systems, such as in Nashville where Universal exec Ken Robold and singer-songwriter John Hiatt have had their traffic offenses dismissed.

Given everything we’ve covered, at least briefly, it’s clear that a fair trial when it comes to P2P will be impossible to be had any time soon.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

There are two main areas to look at, one is within a court case, the other is outside the courtroom, and away from specific cases in general. First we’ll look at inside the courtroom, and we’ll look at more general issues in part 2 of this article.

The litigation that takes place in cases such as this, is a far cry from those typified in LA Law or Boston Legal. In those shows, the lawyers are the heroes, and to have the stars of the show using the sort of tactics used in these cases would have viewers reaching for the remotes. As was covered last summer, the actual process is riddled with abusive practices, one of the key ones being that the first most defendants hear about it, is when they’ve effectively already been sued once (as a John Doe), and lost (because of ex parte discovery), and the industry lawyers are sending threatening letters directly to people, telling them to pay up or else. Of course, it’s not just in the US this happens, it’s happened a lot in the UK with Davenport Lyons and ACS:Law.

Now, we mentioned resources, and if you have not caved in to a demand to accept guilt and pay up, then resources are essential. As a defendant in a civil case, you have to defend yourself from accusations. If you don’t show up, you lose – this is apparently what happened with Ms. Barwinska. Now, they’re under no obligation to actually file a lawsuit, but can continue to threaten to do so pretty much until any applicable statute of limitations has expired, which can be years. In all that time they can continue to threaten, and so legal counsel might have to be retained, to respond, and failure to respond can be viewed negatively in some courts.

If it actually comes to a court case, then, it can get worse. Depositions, expert witnesses and paralegals for research all cost money, again money the plaintiff has, and the defendant often doesn’t. This was why the expert witness fund was set up and one reason the defense in the two Thomas trials were light on testimony. In the Tenenbaum case, defense expert witnesses were rejected, including Dr Johan Pouwelse, who has published on Kazaa and conducted the largest (2-years!) measurement of Bittorrent. He told TorrentFreak that it was “amazing how the plaintiffs in this case where allowed to let 3 record executives complain for hours and not let any professor take the stand in favour of Joel.”

Of course, at the end of the day it comes down to the jury. And often it ends up being down to how well an analogy can be made that describes the situation in a way that defines the lawyers position in the way that the jury can understand. The problem is any such analogy will be critically flawed, as it’s a technical issue, and anyone with knowledge of P2P systems, even as a user, tends to be rejected as a juror ‘for cause’. Thus the people left are generally technological novices, that believe the analogies to be accurate, or have an overestimation of the accuracy of the evidence (as seems to be a trend with ‘forensic evidence’ in cases these days). That’s how you have someone who has never used a computer saying they know someone’s lying about a technologically involved subject, as happened in the first Thomas case. Outside information (covered in part 2) only exacerbates that.

With all these things against a defendant, can there ever be a fair P2P trial?

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

One of the cases vying to be the first to go all the way for a standing decision, is the case involving Boston University student Joel Tenenbaum. After initially offering to settle for $500, and having it rejected back in 2003, he decided to fight. His case has proved quite a headache for the RIAA by all accounts. Starting with a counterclaim asserting abuse of federal power, and that the damages demanded were unconstitutional, it has eventually gone to court after several settlement attempts. In court Joel is assisted by Professor Charles Nesson, and his law students.

In the Thomas case, the lawyer involved wasn’t particularly enthusiastic nor experienced in this area, and it showed. The same can’t be said of Prof. Nesson, who is a Harvard law professor as well as Founder and Co-Director of the Berkman Center for Internet and Society. In what might be considered a coup, he convinced the judge to allow the trial to be webcast on the Internet. This will allow others to see just how the lawyers act in a case. Yet, in the last few hours, it has been revealed that the RIAA has appealed the motion, clearly upset that it might harm their public image further.

It’s hard to see how it can though, when the RIAA makes statements on the case that do nothing to generate goodwill. RIAA’s Cara Duckworth said in a statement, “While this might be an interesting academic exercise for the professor and his class, there’s been real world consequences for those who create music.” Clearly little things like following the law are second place to their revenue steam, and how DARE the defense bother to fight the case against them. In the meantime, we’re looking forward to the webcast.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Repeatedly hammered home throughout is that the RIAA has very little by way of a case. Starting with the weakness of the ‘expert witness’, where Beckerman notes that the evidence by the three people at MediaSentry that form the basis of all their lawsuits, don’t meet basic standards). He further discusses the repeated rulings that lawsuits shouldn’t be joined together as ‘Doe 1 , whatever’ (the first almost 4 years ago). The highly questionable tactic of filing a Doe suit, using it to get information, and then filing a named suit, is also mentioned.

Suggestions put forward by Mr Beckerman include watching for wrongly joined cases (and dealing with such cases as a contempt of court), ‘don’t be baffled by jargon’ (simply put as ‘if you don’t understand the case, then maybe the plaintiffs haven’t got one’) and “have all decisions published”.

For those of us keeping track of RIAA cases, the technological details are a little light. But then, Mr Beckerman is not professing to be an expert in p2p technology, nor technology in general. He is, after all, a lawyer not a techie, and could probably explain the tech side as well as I could the rules of disclosure. Instead, he presents a working knowledge that is simple to understand even for the most luddite of jurists. Indeed, as that is the target audience, there is more than a sprinkling of legal terms, but again, none too complex as to defy understanding.

To some, it might appear that the article, a substantial, but not overly weighty 8 pages (with another 2 for footnotes) is nothing more than a rehashing of material previously posted to his blog. However, the coherence and progression of the document means that it is of great use to someone who has just been targeted for litigation, or for their counsel. In this matter, it succeeds, perhaps unintentionally.

Perhaps most significantly, though, is that hundreds – if not thousands , of judges up and down the United States will be reading this, and will keep certain things in mind should a case come to trial in their court. It is entirely likely that many of the judges involved in cases already, were unaware of some of the cases and judgments, and that others have already ruled against practices that may be used in a case they’re involved in. Everything from admonitions for joining cases, to reasons why ex-parte motions should be examined closely.

This article may have done more to dampen the legal juggernaut that the RIAA has unleashed on the American people, than anything short of a Supreme Court victory, or federal legislation. It is another fine example of an entertainment industry having their claims published, and found to be contradictory.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

The juror, Michael Hegg, a steelworker that claims he has never been on the Internet, said it took just five minutes to reach the verdict.However hours were spent deciding, or ‘bickering’ as to how much to award to the plaintiffs in punitive damages , no actual damages were awarded, because none were sought. Hegg’s statement, that “we wanted to send a message that you don’t do this, that you have been warned,” sends a message of it’s own, that the double-talking tactics of the industry groups is working.

Potentially more serious though, are the hints given by him that it was never going to be a fair trial. For someone who has never been on the internet, he, for instance, responded to claims of spoofing, and of possibly being a zombie system as “Spoofing? We’re thinking, ‘Oh my God, you got to be kidding.’”

We discussed these statements with Andrew Norton, spokesperson for the Pirate Party of the US, which was not happy with some of the actions in this trial. “The attitudes and responses of this jury member shows that, whilst the litigation strategy may be a ‘Money Pit’, the misleading PR campaigns are having an effect, to the point where they are undermining the ability to allow anyone a fair trial for these alleged offenses. It’s also clear from what he has said that the jury disregarded some of the facts presented to them by witnesses, such as the hard drive in question was replaced because it was faulty, not in relation to the trial.” He also added, “This jury clearly came into the trial with its mind made up, undoubtedly thanks to propaganda such as the “You wouldn’t steal a…“ advertising campaign that has been running for a number of years, which incorrectly associates downloading with theft.”

The Jury also ignored a lot of precedent in other similar cases, or was not made aware of it. This is highlighted by Hegg’s assertion that the Kazaa screenshot, showing millions of Kazaa users, sharing hundreds of millions of ‘songs’ (potentially oblivious that a small percentage of those users and a large percentage of those files were the agents of the plaintiffs, and their fake files) established that Kazaa’s raison d’être was for file-sharing , something no-one has ever questioned. His logical leap, however, that file-sharing is copyright infringement is one not shared by courts elsewhere, (affirmed in trials such as Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) and A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001) amongst others.)

Yet, the biggest surprise of all, and one that could come back to haunt the RIAA, is that no actual damages were claimed. This may have been because it would have been hard to establish an actual figure, backed up sufficiently to the courts requirements, but will make it hard to claim, in future, that they are losing money. If Ms. Thomas, with all the evidence they had against her caused them no actual financial damage, then it will be hard for them to claim anyone else has cost them either. Of course, when your misinformation strategy means you get the punitive damages anyway, does it really matter?

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.