Another update, less than an hour to go:

The jury requested her deposition, which was denied. Apparently it was never entered as evidence even though the attorney's on both sides brought it up several times.

They also asked *specifically* what the minimum fine was if found guilty for "non-willful" infringing use. ($750 per infringement)

With less than an hour of deliberation to go, this is looking more and more like a slam dunk for the prosecution.

(The information above was taken from the Duluth News Tribune.)

UPDATE: The trial is over, the verdict is in. She lost. The jury awarded the labels $9,259 for each song shared (24) for a total of $222,216.

While the verdict itself does not come as a terrible surprise to me, the amount awarded blows my mind. With no proof that any of the songs had been uploaded, and nothing conclusive regarding intent, I had expected the judgment to be much closer to the minimums for "non-willfull" infringement ($750x24=$18,000).

There will hopefully be an appeal. This does not bode well for those of us hoping against hope that this might reign in the Labels.

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."

Funny. If they were just trying to prove a point, why press for millions in damages?

Against her:

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

2000 CDs in 2 days. Yeah. Right.

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.

It just magically appeared...

In her benefit:

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."....

If Judge Davis decides to keep jury instruction no. 14 intact over the objections of the plaintiffs, it will make it more difficult to find that Thomas infringed. Of all the documentation presented, the only evidence of any distribution or downloading was that done by Media Sentry, the RIAA's authorized agents

Interesting reading over at ARS.

UPDATE:

Judge Davis amended the instruction to say that the "act of making available for electronic distribution... violates the copyright owner's exclusive copyright." That decision should make it easier for the jury to find Thomas liable.

Ouch. That is going to hurt. Big time.

http://blog.wired.com/27...10/riaa-testimony-.html

Computer forensics specialist Doug Jacobson, of Iowa State University, testified that no wireless connection was used the night in question, based on IP data embedded in the Kazaa traffic.

Wow, I had no idea this was possible. Anyone know how Doug would be able to determine this?

Router logs.

If you read on, apparently they have the cable modem/router and have determined that the only MAC address on the network the months prior to and after was the one for her PC.

"...based on IP data embedded in the Kazaa traffic."

That doesn't sound like logs from her router. It sounds like they analyzed her packets and somehow determined there was no wireless connection behind her ip. How would that be possible?

Packets send more then the public IP and the data you are trying to send. They also contain routing data to get the return packet to the correct location. I stated as much below, though this information comes from my recollection of a forum posting several days ago.

I really don't dissect packets in my spare time.

Don't worry about it, I'm not saying you should know. I'm just amazed that anyone would be able to tell I'm on a wireless connection behind my router based soley on ip header info. I'll have to read his testimony.

So far from the trial:

So far, their case appears to be strong: they've shown that Thomas uses the "tereastarr" handle extensively (the KaZaA user identified by Media Sentry was "tereastarr@KaZaA"), that the IP address flagged by Media Sentry was assigned to her account at the time, and that only one MAC address was interfacing with the cable modem during the months before and after the alleged infringement. Where the RIAA's case seems to be running aground is in its attempt to paint her as a pirate. The defense appears to have successfully countered allegations that she was into large-scale piracy, instead showing that she's a devoted music fan who owns hundreds of CDs.

Taken from the Ars Technica site.

If they fail to directly implicate her, I wonder if they will try for something akin to criminal negligence or something of that sort.

Yea the old Copyright standard is going to make and appearance in court.. IE Prior to DMCA standard that pretty much paints everyone in teh country as a Pirate alla DRM bypassing for functionality, or web sampling, or even recording from radio to a digital form.

Basically under the old standard to be labeled a pirate you had to basically be distributing it in mass to the public... Like the little Taiwanese kids in San Fransisco selling First Run Movies on DVD out of a briefcase that are still in theaters for the cost of a movie ticket or less... Obviously that is Piracy... And VERY illegal; Always has been, always will be.

Making the case that this case labels her on the same criteria is the thing that may actually save her...

And Yes I kinda would like to see these cases go criminal as the burden of proof will have to be more stringent. The bad part is if they loose they could loose everything. worst that can happen to her in civil court is a Fine of some kind... Maybe sort term (probably parole) Jail time. I doubt jail time will be much as most judges reserve the limited jail space for the public menace, not civilized social disorder, which in My opinion is what the majority of things dealing with the DMCA seems to be. The original copyright laws on the books prior to DMCA was more then enough to handle the pirates of mass distribution for profit.

On a side note. I found this nice tool handy...
Mac MakeUp 1.95d
http://www.gorlani.com/p...macmakeup/macmakeup.asp

This trick thus far seems to only work on Mac OS10 and linux platforms. I tried doing this on Windows many times but it just does not like to do it... So oviously Linux is what you want to use for your "Piracy endeavors"

SO anytime you want to participate in some social disorder, Spoof out your MAC address first and maybe find a nice free wireless hotspot. lol Barnes and Noble is my favorite.

Just curious. I suppose if working from home using a router, the MAC is that of the router, not the desktop itself. So if you're at a hotspot, the MAC would be exposed from the laptop. If you ran VMware on the laptop, would the MAC be captured from the physical desktop or the virtual MAC? Forgive my ignorance.

I believe (and I'm recollecting from a forum post elsewhere, so YMMV) that the packets sent contain far more than "just" the data you intend to send. It contains most if not *all* of the routing information needed, such as your local (192.168.*), and such.

As for the MAC Address, most folks don't know it, but your modem/router/whatever usually keeps logs of all the systems that have connected to it, including the MAC address. This can be spoofed or cloned, or the logging can be turned off, but again, the average user will never do this, or even know how to.

No idea how this would apply to a VM.

Wow. Coming from a legal environment, I can say that most of the comments posted are way off the mark of reality or probability even.

"probability of guilt" ??

I've never seen that stated in any law in any state nor in the Federal courts. Where is that from? Just curious.

STANDARD OF PROOF - CIVIL CASES

The standard of proof on both parties is proof on the balance of probabilities, i.e., that an allegation is more probable than not.

http://www.forensicmed.co.uk/burden_of_proof.htm

Typically, most countries have two levels of proof: the balance of probabilities (BOP), called the preponderance of evidence in the U.S., (which is the lowest level, generally thought to be greater than 50%, although numeric approximations are controversial) and beyond a reasonable doubt (which is the highest level, but defies numeric approximation).[citation needed] In addition to these, the U.S. introduced a third standard called clear and convincing evidence, (which is the medium level of proof).

http://en.wikipedia.org/wiki/Burden_of_proof

I can find more, or you can google for more if this isn't enough and you're actually interested.

I appreciate the link and the fact that you didn't react harshly. However, this appears to be paraphrased content hosted in the UK and Wikipedia, which isn't allowable for citation by most public schools at this point. Neither is actual quoted U.S. law. Irregardless, I agree with you on the bigger issue of probability as it pertains to the chances of this person fending off the RIAA. In the end it will come down to who spends the most on their legal team.

He is not a lawyer... what you want a Law book citation or Precedence? lol Hell thats what paralegals are for. lol Sheesh...

Heh...

After posting it, I almost edited it predicting the immediate disregard you may have for both links based on the sources.

Regardless of the sources, you yourself can Google it, or, since you're apparently in the legal field, ask someone there. :)

Thank you Lil WiP, for the correction.

I won't go editing all of my posts, I simply restated my main point under your corrections.

You are correct. (I'm sure you know this)

While the Burden of Proof is still on the prosecuting party, it is much less than it would be in a criminal court.

The presumption of innocence does have a caveat also. While presumed innocent, the prosecution need only produce the probability of guilt instead of proving it beyond all reasonable doubt. This is a *huge* difference, and the point my arguments were attempting (badly) to make.

In a criminal court, the evidence presented by the prosecuting party must meet a much higher requirement than it does in civil cases, where they need only present a probability of guilt and need not be conclusive or damning.

Again, thanks for the correction. Lord only knows how much longer I would have gone on wording it so very badly.

SafeNet says it found her sharing songs under her account...

What exactly is "her account"? Did they snatch her email somehow? I have no idea how kazaa accounts work. How do you get personal info besides the ip address?

They probably got the IP from her ISP. (assumption on my part, but it is their typical route)

Do we know if that's the only evidence? If all they have is the ip, I can't see how the court would rule against her. If that's the case, then she's right to fight this.

If my neighbor hacks into my wireless and downloads kiddie porn, I would very much like to NOT go to jail. Same if it's my roommate, friend, dog, etc... So, the question that the courts need to rule on is: Are we liable for everything that passes through our connection?

I'm certainly not liable if someone steals my car and causes damage or injury with it. It doesn't matter if I locked it or not. It doesn't even matter if I lent the car to that person, unless for some reason I should have known he was likely going to cause harm.

IMHO, if the ip address is all they've got, this case is like a photo radar ticket without your face in the picture - you don't have to pay a penny.

The best case scenario here is that the court decides you can't tie an ip address to a person without some other evidence.

Do we know if that's the only evidence?

We've no way of knowing until it begins and the prosecution submits it's evidence. If all they have is an IP address, it may still be enough unless the defense can offer logs or other evidence proving that wasn't her IP at the time.

It could go either way. We can't see the future yet. :p

IMO, though, she's got a tough fight ahead.

The RIAA are too Greedy !

nuff said from me

Going against RIAA alone has to be the stupidest thing ever. Just no way...

don't agree. It could probably be the first move of a big revolution... Don't forget "When you download MP3, you download Communism" ;)

People don't pay will never going to pay, regardless how you try to prevent it. If all shares die, they still won't buy anything. Is it that hard to understand?

I for 1 am very happy to finally have a case of this magnitude come to court... At any day or time there are millions of users online downloading TV shows and music in a way the RIAA and MPAA does not like. Yet their sales of DVD box sets and Online and physical music continues...

It may not be at the break neck speed they think they deserve but it continues to grow every year. The loss numbers they generate do not take into account sampling before buying, nor downloading prior to release and getting once released... IE TV Box set dvds. Indeed some of the shows I have downloaded in the past not only are off the air but are not going to be released on DVD. thus making my download an archive that I preserved from my Cable subscription and editing of my timeshifted content. Prime examples... Logan's Run, Jason and Star Command, Century City, Time Trax, Mr Merlin, and thats just a few...

Most of these were recorded on BETA and VHS and then digitized by archivers and cleaned up and removed commercial cuts and such... Others were direct downloads from DVR cable boxs and from torrent systems...

Had we not done this our collection of rare television would not be in existence in any way... As the studios absolutely refuse in some cases to allow them to be released on DVD.

Now I know this case is music. and to be honest I think we are seeing the deamnd curve correcting itself in the market... Anyone notice latly how popular the Anti DRM LPs are starting to pop up in music stores again. Vintage is back in many ways BECAUSE of the heavy hand that the RIAA has had with digital media. People want what they want. and if the industry will not provide that , then the people will do what they have to do to get what they want legally or illegally... Even if that means going back to Vinyl LPs, and making their own Digital versions from that. Then they can use it as they wish, on digital players or in their car or whatever while preserving their pristine LP back at home in their archives...

As to the case itself, I'm sure they will prove she is guilty. Why? Money!!! They got a ton of it she does not... as such they will appeal every loss until they win. and then encase that final ruling in gold as though none of the others existed... This has been the case in such cases before and will continue to be the case until we get another Supreme court Betamax style ruling... And the RIAA MPAA will NEVER allow that to happen again. cause they can not afford that loss again...

I agree with the sentiment, but I don't think it's going to cost them much to win this one, and I doubt it will require an appeal.

I hope I am wrong, but...

It's going to be *very* hard for her to prove she didn't upload songs to anyone else. Unless she has logs going back that far, either from Kazaa or her ISP... I just don't see this ending well.

The best hope she has, I believe, is defaulting on the judgment which may force the issue into criminal court, but even that is dangerous.

It sucks. I read somewhere that some country was going to force the Media industry to use the criminal instead of civil courts. While I hate to take away the RIAA's right to use civil courts, it is a right they have grossly abused to the point where it's becoming the only real hope of stopping them.

"It's going to be *very* hard for her to prove she didn't upload songs to anyone else. Unless she has logs going back that far, either from Kazaa or her ISP... I just don't see this ending well"

She doesn't have to PROVE anything. Her innocence is assumed. The RIAA must prove that she DID what they are saying that she did. Why do you assume burden of proof falls on the accused?

I think it's just that he's been saying it forever and nobody has challenged him.

Heh...

She doesn't have to PROVE anything. Her innocence is assumed. The RIAA must prove that she DID what they are saying that she did.

While her innocence may be assumed, the rope it hangs from is a *lot* thinner than it would be in a criminal court.

Why do you assume burden of proof falls on the accused?

Bad wording. My bad. The burden of proof on the prosecution is *much* lower in civil courts. The evidence does not need to be nearly as damning and calling it's validity into question does not have nearly the impact it would in a criminal court.

All this while the burden of the defense to fight a "Probably Guilty" verdict is *much* harder.

The RIAA must prove that she DID what they are saying that she did.

The labels need *only* prove that she *Probably* did it. :) That's the point I was (badly) trying to make.

You are correct. I've been wording it incorrectly for so long... Ah well.

Basic premise remains, even if the argument itself needs an overhaul. :p

Can we ban the PC_fool account? kind've annoying.

Already notified admin...

This has been taken care of. We do our best to keep things clean and on track.

Thanks Nate...

I am quite interested to see where this trial goes in the future.

One of the reasons the RIAA tend to settle out of court for such a low amount is to discourage people from actually thinking about fighting the charges. Anywhere from $2K to $8K is better than paying the ~$10K minimum it would cost to take it to trial.

How can the RIAA prove, in a court of law, that she committed copyright infringement by sharing those songs?

IMO I believe the RIAA needs to reconsider how it does business, but that won't happen due to them being so blinded by the almighty dollar.

Cheers!

How can the RIAA prove, in a court of law, that she committed copyright infringement by sharing those songs?

They don't need to. This is a civil court case, not a criminal court case. Burden of proof in civil courts rests upon the defendant.

IMO I believe the RIAA needs to reconsider how it does business

That's just silly. They're making billions. :p

How can the fudgepackers of america prove, in a court of law, that toolie is a f**boy?

They don't need to. It is already well known that toolie is one of the biggest gaylords around. Toolie continually proves he's a f**got the more he posts.

My name is pc_toolie and i'm bendin' over for ya baby!

So was Enron....

OK PC_Tool and I do not agree on much and have had some heated arguments on issues. but this is over the top... Please reconsider posting that and edit your post...

{Moved to own subthread as this is likely about to be deleted.}

Do you have some reference as to the burden of proof flip flopping in civil court?

Hence the ":p". It was tongue-in-cheek.

Uhh.. General knowledge? I learned that in Elementary School.

What are they teaching kids these days?

Oh yeah...Global Warming and Homosexuality. Much more important than US law...

Heh..

Were you around when "rijp" was a poster here?

What you and I get into is nothing compared to the arguments he and I would have. Funny thing is, outside of our disagreements, we got along quite well, even traded emails.

I believe he got himself banned for flaming one of the staff. Heh... Good times, good times.

Posts like the one above only show that poster's immaturity. I do tend to bring out the best in people, don't I? *laughs*

The "traditional rule" in civil cases requires that "the party initiating and seeking relief" bears the burden of proof. Not the accused. Maybe you need to go back to elementary school and finish it this time around...

So the answer is: No, you don't have a reference.

I think what you'll find as you research this is that while the burden of proof is lower in civil court (preponderance of the evidence vs. reasonable doubt), it still rests with the plaintiff.

Don't worry about it. I've been totally wrong too. It's no fun, but at least you end up learning something. :)

Again, sorry for the bad wording.

As stated below, while the burden of proof is on the prosecution, it is *far* from the "beyond a reasonable doubt" bar that is required in criminal cases.

My main point is that unless the defense can prove it was not her IP, was not her computer, or she was not involved, "Probably Guilty" is all the RIAA needs to win.

Correct.

It's the difference between "Probably Guilty" and "Guilty Beyond Reasonable Doubt."

The party bringing the case (the labels) have only to present enough evidence to make that
"Probably Guilty" mark. The burden on the defense to argue that is, therefore, much greater.

The point I was trying to make (and miserably failed at) was that unless the defense can prove the IP wasn't hers, there was someone else there, or it was spoofed, she's going to lose. Simply raising the question of the validity of their (the labels) evidence isn't going to cut it.

"...contractor SafeNet says it found her sharing songs under her account, and was able to download 26 pirated MP3s." So doesn't that mean that SafeNet broke the law? The lady should sue them and RIAA. Aren't they just as guilty of downloading the songs?

Presumably, they had permission from the copyright holder.

Can they prove that there were more than 26 songs that could have been downloaded? Can they prove that the files were the actual songs and not misnamed files? Seems like the rest would be difficult to prove if they only dl'ed 26 files...

Assuming they still have the files they downloaded in question, it would be pretty easy to prove they weren't "mis-named' files. Being available on Kazaa, where that majority of use is infringing, it would be logical to also assume others had downloaded it. Getting an exact number would be an issue.

Of course, none of that matters.

The sad fact is that in a civil court it is not up to the RIAA to prove that she infringed. Instead, it is up to her and her lawyers to prove she did not.

Unless she has logs going back to the date they got the files that show no-one else downloaded from her, she's screwed.

This is why the RIAA brings these cases to civil court. The burden of proof does not lie on them, and thus their methods don't generally come into question.

Assuming that I, pc_toolie, am still a f**got, it would be pretty easy to prove that i love being a fudgepacker.

Of course, toolie is a big gaylord.

The sad fact is that toolie becomes an ever bigger f**got the more he posts.

This reminds me of hearing about Post Masters sending out kiddie porn, along with catalogs of such, to people hoping to get someone who put in an order.... As far as I'm concerned the Post Masters were even more guilty of violating the law. It is no different in this care. You don't break the law to enforce it...

wow, you are truly a loser

This is NOT needed. Like I said PC_TOOL and I do not agree on some things and agree on others, but this is WAY WAY out of line... Please reconsider and edit your post to remove those undesirable and untrue comments...

Yes, such sting operations for the RIAA which goes out and downloads content from the illegal file sharers do have the RIAAs permission to do so. Who in turn represent the owners in some way... That will become an issue in this case I'm sure...

The safest way to do it is to block all such companies IPs, which grows every day. I recommend Peerguardian, and a good router firewall to block UDP packet sniffers...

There is another interesting factor in this case as well... The Morpheus / Kazzaa style systems is not a very good file sharing system because the file in its entirety comes from 1 place when shared (more on that later.)... Where the industry gets itself in trouble is when THEY release a illegal download and get people to download from them... that is entrapment. And this does happen quite a bit now...

Scenario..
RIAA learns a file is online that they do not want online... or is being shared illegally. They hire a contract head hunter to find out who and how...

Those headhunter contractors use the download on the network to get a list of IPs of those downloading it... then in turn use file and that list to get more people that are sharing that file illegally. Something the industries contractors did themselves in order to get initial traffic lists... Again. They have permission you do not...

BUT the IPs that are retrieved can at times, be back tracked to the original contractor that released the file after the fact that was being complained about...

Now the bit about from 1 source... You see torrents are by far more illegal then the Kazzaa like system ever were and lots harder to track, but one key factor comes into play with Torrents. That is no 1 file is EVER download from 1 source alone... you get pieces from 100s... True initially there was 1 source file...that seed is normally distributed through the UUNET (in multi part again) or private IRC networks (hard to gt into at times), THEN the seeds start happening and off it goes... within a few hours the torrent grows to many 1000s of seeds and peers... Especially on new releases the day of air...

SO lets take a Century City TV show download...

1: get the torrent (a hash marked key that finds the file on the Torrent distributed network).
(note: often the names of these torrents are encrypted in some way now, but sometimes you can find a direct naming of the torrent)

2: connect to the torrent network and start downloading the file...

3: after connecting to 100s of IPs and getting small pieces of the file from each (which has been said to be arguably legal, but the nature of the end result is still illegal) you get a complete 350mb Digital archive of the TV show.

Now. who broke the law there? technically the downloader. not the sharer... because the people sharing the file only gave out small bits of information... not the entire file. Indeed some Torrent software specifically forbids a complete share to any 1 address by default. IE the 98% downloaded scheme. the other 2% MUST come from another source... Which it does because someone else has a different 98% being shared then you do and eventually you all get to 100%... But only share a randomized 98%...

Now like I said, Technically the end result is illegal... but the process is debatable...

In this case the process is not debatable... So what they will have to prove is either general populace acceptance of this illegal activity being legal and not caring what the RIAA does. Thus it will result in a federal case and ultimate a change in the laws pertaining to DMCA. OR that she never did do it at all and that any proof they have may be wrong. Indeed it may implicate them in the retrieving of it in attempted extortion and collusion to propagate cultural change using illegal activities and violations of privacy to get their hit lists for such lawsuit threats. Indeed one can make a case against the RIAA under the anti-terror laws of the day in some of their tactics. I doubt it will go that far. but its a legitimate argument.

They Terrorize people into settlements with threats that they are bigger then you thus you will never win... which is very true. But ultimately if Everyone they challenged in such a way stood up to them the same as Jammie Thomas is. We as a people would effect a change in the law... And that here in is the source of the problem...

Mostly agreed, except:

Where the industry gets itself in trouble is when THEY release a illegal download and get people to download from them... that is entrapment

It is only entrapment when perpetrated by law enforcement. The RIAA (currently) does not have that status.

The parts involving more people such as Jamie standing up to the RIAA I am not too sure about. We need to get the RIAA out of Civil Courts, where they are, for the most part, safe, and into Criminal Court, where the burden of proof is much greater. It's really the only way I can see us proving their methods are invalid.

you're wrong...

Civil law

In civil law cases, the "burden of proof" requires the plaintiff to convince the trier of fact (whether judge or jury) of the plaintiff's entitlement to the relief sought. This means that the plaintiff must prove each element of the claim, or cause of action, in order to recover.

The burden of proof must be distinguished from the "burden of going forward," which simply refers to the sequence of proof, as between the plaintiff and defendant. The two concepts are often confused.

You are correct. Call it a momentary failing of memory... I should have worded that better.

The Burden of Proof in Civil cases is not as strong a requirement as it is in criminal cases. Whereas in a criminal case, a defendant must be found "Guilty beyond a reasonable doubt", in a Civil case, the defendant need only be found "Probably Guilty".

Unless the defense can argue, with detailed logs, that either her IP was not the one they downloaded from, that she'd been spoofed, or that her system had been hijacked, she's still screwed.

The RIAA still only has to present enough "evidence" to suggest the probability, which they have depending on your POV.

Do they know she has a computer with an OS that supports Kazaa? I guess the RIAA will be submiting her harddrive as evidence?? I hope also they will be proving that Kazaa's records/stats are 100% correct as to how much a user is sharing..

this is going to be funny to watch....