I’ve complained previous about the unfair treatment the RIAA was facing in its cases, particularly from defense lawyer Kiwi Camara (1 2). If you’ve been following the case, you will have heard that the defendant, Jammie Thomas, lost. From what I’ve heard, this sounds like a good news to me, because she seemed to have been lying quite blatantly throughout her testimony. I guess I might as well go over this briefly.

First of all, Thomas was asked to submit the harddrive that was in use during the alleged copyright infringement, so they could scan it and look for evidence of filesharing. She submitted a different harddrive instead, and got caught when they checked the manufacturing date of the harddrive and realized it had been built after the date of the alleged infringement.

Second, she claimed that she had never heard of Kazaa, the program she was accused of using. While we can’t prove that she had known of Kazaa, her claim is pretty implausible since she wrote a research paper on filesharing back in college.

Third, she claimed that hackers had hacked into her wireless network and they were the ones who downloaded the songs. This lie was blown when it was revealed she has never owned a wireless router.

Finally, during the trial, there was a dramatic moment when an expert witness mentioned seeing a log file on the harddrive indicating that there was evidence of an external harddrive plugged in. The defense objected, saying that they were never told about this evidence (apparently any evidence which is intended to be used in court must be presented to both the defense and the prosecution so that they can adequately prepare to handle it). The judge asked the jury to leave the room temporarily while the defense and prosecution approached the bench to discuss the issue. The prosecution claimed that it was a simple and honest mistake: The prosecution had indeed received a note about the external harddrive, but did not realize it was new evidence, and so never brought it up. According to the expert witness, the external harddrive was only attached to the computer after the alleged infringement, and so the prosecution agreed to basically drop this particular evidence from the testimony, as it was pretty irrelevant to the case. So the Jury was invited back into the room and told to ignore the part about the external harddrive, but to keep the rest of the testimony in mind. So far, no terrible lies or anything like that. But a couple days later, during the closing testimony, Ms. Thomas took advantage of the confusion the jury must have been under from that scene by “reminding” them that the RIAA had brought in a witness to bear false testimony against her. As soon as she uttered those words, the judge was outraged and told the Jury to disregard that last statement. See, the Jury didn’t know what the commotion was about with that witness; all they knew was they were asked to leave the room momentarily, and to disregard the statements about the external drive. They were not told that it was because of a technical legal reason and that the evidence was mostly irrelevant to the case, and so Jammie tried to misrepresent the scene in her favour.

So all in all, I’m relatively glad that Jammie Thomas was found guilty. I’m not sure her fine (over a million dollars) is an appropriate amount, but it’s difficult for me to have sympathy for such blatant liars. It’s disrespectful to the court and you’re basically wasting everyone’s time. And this rant of mine is just about Ms. Thomas! It doesn’t cover my complaints about her lawyer, Kiwi Camara’s, behaviour. But I’ve covered that in past blog posts already, so I won’t get into them again here.

With the RIAA-vs-Thomas case over, it seems like there wouldn’t be much more left to say. Unfortunately, there’s another similar case going on, RIAA-vs-Tenenbaum, and the defense lawyer in this case is one Charles Nesson, who coincidentally was a former mentor of Kiwi Camara. And apparently, Nesson is just as obnoxious in his court behaviour. Perhaps instead of “Like fatherm like son”, I should have written “Like mentor, like disciple”.

I haven’t been following the Tenenbaum case as carefully as the Thomas one, but the two acts that stand out to me are Nesson recording and publishing conversations illegal, and even directly filesharing the songs in question himself!!!

The Court’s indulgence is at an end. Too often, as described below, the important issues in this case have been overshadowed by the tactics of defense counsel: taping opposing counsel without permission (and in violation of the law), posting recordings of court communications and emails with potential experts (who have rejected the positions counsel asserts) on the Internet, and now allegedly replicating the acts that are the subject of this lawsuit, namely uploading the copyrighted songs that the Defendant is accused of file-sharing.

Nesson apparently took the seven songs that Tenenbaum was accused of filesharing, and posted them on MegaUpload. Seriously, what the fuck?

I’ve previously written already about how the RIAA has stunned me by actually providing reasonable arguments to defend their case against one particular alleged filesharer, Jammie Thomas. I also commented on how Thomas’ lawyer, Kiwi Camara, was kind of a dick. Well, he’s doing it again:

Basically, during the first trial, there was the formality of the RIAA actually proving that they own the copyright to the songs which were allegedly downloaded. So the RIAA’s lawyer (Matt Oppenheim seems to be the “leader” of the five lawyers RIAA had hired for this case) brought in some documents showing that they, yes, they owned the copyright, and the trial went on, and eventually ended (with the jurors siding with the RIAA, for what it’s worth). Then there was a retrial, and during the pretrial of this retrial, Camara challenged the documents the RIAA had provided earlier, saying they were copies instead of the original (the exact wording was that the RIAA had provided “true and correct” copies, instead of “certified” copies). The Oppenheim and company said this is silly, but the judge said that on this particular technicality, Camara is right, and so the RIAA went back to the office to try and get “certified copies”. Ominously, the Oppenheim said that it may be “difficult” to acquire these certified copies, leading some to believe that perhaps there was some sort of secret conspiracy, and that the RIAA did not actually own the copyrights to these songs, and their whole case was about to collapse.

Well, it turns out that nothing so dramatic has happened. Instead, the RIAA got the “certified” copies, mockingly adding “Now we have them on the fancy paper the Copyright Office provides.” Camara’s response? He motioned to have these new documents barred, because neither the defense nor the prosecution should be allowed to submit new evidence this late into the pretrial. That was kind of an asshole thing to do, IMHO: asking someone to provide new copies of the document, and then arguing that no new documents are allowed to be provided. Anyway, Oppenheim argues that the “new” documents are identical to the documents that the RIAA had submitted years ago; simply printed on new (fancy) paper. We’ll see what the judge decides, but I hope and and optimistically confident that he will side with Oppenheim on this one. The judge seems like a very reasonable person, and I think it’s pretty settled that Camara has no case in his objection to these documents now.

As an aside, this judge also seems quite “hip” and “with-it”:

The judge then gave some instructions. Jurors were not to blog during the trial. They were not to put anything “on your Facebook.” And under no circumstances were they to “tweet”—an expression that clearly pleased the judge, who used it three or four times.

If I could get in a time machine, go back 2 to 5 years, and tell my pass self that I’d be rooting for the RIAA, or that juries would receive instructions not to use Twitter or Facebook, I wonder if I would believe myself.

It’s a world gone crazy. The RIAA/MPAA are saying things which actually make sense.

In a trial between the RIAA and alleged file-sharer Jammie Thomas, Thomas’ lawyer argued that the RIAA’s evidence showing records of Thomas sharing songs over Kazaa is inadmissible, because recording the IP addresses and packets sent over the Internet is akin to wiretapping, which is illegal. The RIAA’s lawyers responded that by design, computers *must* record the IP addresses of any packets sent to it, so that they can respond to it. The analogy is with postal service, where if you send me a letter requesting that I send an mp3 to you, I must take note of your return address in order to actually send you the mp3. If we extend the wiretapping laws to apply to computer networks, the lawyers (correctly) argued, then the Internet would cease to function at all.

I have nothing against the RIAA/MPAA per se. Instead, my loyalties lie with “truth” and “justice”, and in the past the RIAA/MPAA seemed to be going against these ideals. But in this particular argument, they are siding with these ideals, and thus I side with them. Thomas’ lawyer, Kiwi Camara, seems to be trying every single possible tactic to win the case. I guess that’s “normal” for lawyers, but it’s when he resorts to “dishonorable” tactics like the wiretapping one mentioned above, it makes me lose a lot of sympathy for Thomas’ case. And I suspect a lot of power that the file-sharers have against the RIAA/MPAA comes from sympathy from the general public.

As an aside, the judge who is handling the case, Michael Davis, seems like a very thoughtful and fair person. When the RIAA’s lawyer screws up filing their evidence (their certificates proving ownership of the copyright weren’t the originals or something), he doesn’t let them get away with it. But when Thomas’ lawyer screws up filing their evidence, he doesn’t let him get away with it either (there are rules before using a “fair use” defense, and he didn’t follow them). Commenting of the first case in which the RIAA won, Davis wrote:

While the Court does not discount Plaintiffs’ claim that, cumulatively, illegal downloading has far-reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs—the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000—more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs…

Fortunately, he also didn’t buy Camara’s wiretapping argument either. Kudos to this judge. All too often, I read about a misinformed judge making decisions which have technological implication (e.g. on the Internet as a whole) without understanding or realizing it.

Okay, so that’s the RIAA. What has the MPAA done or said that was perfectly reasonable, causing shock and confusion worldwide? At the world copyright summit, vice president Fritz Attaway said:

We’ve got to do more of [what online video site Hulu is doing]. We live in an age where we cannot block access to our content. People are going to get it one way or the other. We would like them to pay for it and we need to seek out ways where they can pay for it. But just saying ‘no’ isn’t the answer.

I had this black-and-white mental model of the RIAA/MPAA being this “evil” corporation; unable to adapt, because its whole business model (being middlemen between artists and consumers) is rendered totally obsolete by the Internet, and so would fight tooth and nail until its inevitable decay and death. But it looks like there might be hope for them yet.

Will the RIAA/MPAA actually adapt their business model to be compatible with the Internet age? Will the company be completely transformed, coming up with new, unrelated sources of revenue, essentially ceasing to exist except in name? I wrote earlier that the stigma associated with videogames will disappear as the Gen-Xers come into power; will a similar thing happen with copyright reform laws? Is the growth of Sweden’s Pirate Party a sign of the Gen-Xer’s growth in power?