IN THE CAPITOL RECORDS vs Thomas-Rasset media sharing trial, one thing became clear, the RIAA lawyers are down at least 100 IQ points on the defense. It shows too.
I feel stupid just listening to the RIAA legal team, four attorneys by our count, versus three on the Thomas team. Why? Well, it seems that the RIAA legal team is the old school, loosey goosey style of law, Ms Thomas-Rasset’s team is the exact opposite.
The MAFIAA lawyers couldn’t even lay foundation, one of the most basic things taught in law school trial practice, but more on that later. On the other hand, Kiwi Camara, the lead lawyer on the defense team, even got a finger wagging from Judge Davis for being a bit too excitable in his objections. They were however often upheld.
Relief floods in when you have an attorney that asks some really basic questions like “0% error rate in your program? Really? Has the code ever been audited? Who would I ask to get a copy of the code so it could be audited?” You know, the technical stuff, to prove things are the way someone claims they are.
For having only two weeks of prep, this is a fun show to watch. Kiwi, the boy wonder, well, he’s quite simply giving us a good show. But first, a few words about how we view this case going in, and some basic facts behind suit. Why? Because it’s highly politicized and so we feel that stating our views and starting points helps out all parties.
Neither Ms. Thomas nor Capitol et. Al have clean hands in this case. They both appear to have screwed up.
That screw-up doesn’t mean that Ms. Thomas-Rasset should get off scott free nor does it mean that she should be punished to the full extent of the law.
The silly waggle dancing about while avoiding the real issues at hand is annoying on one hand and insulting on the other.
The basic facts as presented are that file sharing is sometimes legal and sometimes not. Sharing stuff like Ubuntu (rock on) is legal. Sharing stuff like a copyrighted work is not. Lumping all file sharing and “downloading from CD’s in your computer” as phrased by the prosecution is inane at best and counterproductive at worst.
We are in the midst of a change in technology and that affects the music industry business model. This has created a new and changing legal situation.
Sadly, the legal system is very slow to change so we are dealing with legal precedent established long before these new technologies and new methods of interacting were developed.
All of that said, don’t expect the real legal issues to be brought out in the open – just allusions and feints. The last thing the MAFIAA want is a precedent
The claim against Ms Thomas-Rasset is that she stole over 1700 songs and Media Sentry, now Media Defense, caught her and tracked her back to her bedroom in Brainerd, MN. The company claims to have tracked her to an IP and MAC address that Charter Communications, her ISP, claims matches her modem.
Jury selection was fun with most people being normal, average, hard-working Minnesotans. The prosecution managed to insult us all with his non-knowledge of what a municipal liquor store was. Hint: it helps pay for small town’s services so they don’t charge as much in taxes. So much for winning over the natives.
The educational level of the jury was mostly High School grads, one juror has AA degree and works in his families pharmacy, a retired nurse, two college students, and a teacher. This is a good cross section of the middle class working peeps.
After the jury was seated Judge Davis spent quite a bit of time warning the jurors about not reading the news. There they go, reducing our readership and livelihood again. No Facebook, Twitter, tweeting, Internet, email, or talking about the case to the press either. I see visions of future trials where jurors will have to be drugged to prevent symptoms of connection withdrawal. Someday, we’ll even have to remove the skull-jack for our external communications systems before we sit on a jury so we don’t get any information that might bias us. That withdrawal will be painful and jury duty will become even less of a fun thing.
Duh dah duh dum….. The dry testimony began after the jury was seated. First up for our enjoyment was Mr. Leak, the deputy general counsel for Sony since 1999. He trotted out the pains of a company laying off people because of the reduced revenues from file-sharing activities and the inability to nurture and grow new artists. Hands up if you believe that it was evil single mothers rather than over hyped Brittney Spears clone #47 that caused this ‘mess’.
His whole testimony was dogged by the inability RIAA attorneys to lay foundation, a basic part of trial law that helps you place the witness at the scene of the crime. Foundation establishes someone’s actual ability to give testimony. Mr. Leak, for his law degree, came across as utterly wishy-washy, seeming to know nothing for sure, and not being able to say a firm yes or no. He seems to have a bright career ahead of him in PR.
Mr. Leak, couldn’t really estimate how much harm Ms. Thomas-Rasset actually did to Sony. He struggled with that and every other question that might have required a specific concrete answer. No read on the program of education against downloading, no specifics on the ISP compliance program, no real memory of their litigation against filesharing coders. Hmmm we really wonder what he DOES know, if anything? *
Next up was Mr. Connelly from Media Sentry/Media Defense, a company that he isn’t quite sure where it’s based, but he’s in New Jersey by golly. He ran us through the basics that yes, indeedy they got her, they got her IP address, they got her mac address, they got the information that matches from Charter Communications. He’s even a lay expert in traceroute.
But, hold on, all the evidence he has was simple text log files, .DAT files, and 11 downloaded MP3s. Ladies and gentle jury they’re stored on a SECURE server in READ ONLY FORMAT, but what happened before they got there is anyone’s guess. Not that editing a text file that has a read only flag set takes more than a few mouse clicks.
Not much to to say about the code that got the information, but according to Mr Connelly, we are to believe has a 0% error rate. The defense couldn’t get anything about who has actually audited the code, written by Mr. Connelly and a second coder. Nope just an audit of the policies and procedures of Media Sentry, and they seem to have given themselves a perfect score. Imagine that. No one else can look at the code though, after all, why bother after a perfect internal audit?
During this testimony the court was treated to a sampling of songs downloaded by Media Sentry from the IP at Thomas-Rasset’s home. One of the songs was a familiar Journey song. We don’t actually know if it was the one copyrighted as it sounded a great deal like this one. In fact, I’m not sure I can tell the difference, except this one is live. I wonder why the RIAA doesn’t have such problems?
The MAFIAA had some interesting numbers though. They are suing for 24 songs, but were only able to download 11 of them from Ms Thomas-Rasset. On top of this, the prosecution was only able to provide a certified copy of the registered copyright certificate from the US Copyright Office for eight of those songs. The rest of the ‘downloads’ were only partially complete, in .DAT format, and Mr Connelly was unsure if they could be played at all. No word on the other 1676.
Last witness of the day was Ms. Nestler with Charter Communications. A nervous witness but the one with the mostly straightforward testimony. Basically, yes, Charter responded to subpoena with IP and mac address information. Yes, they sent out a warning letter to Ms. Thomas-Rasset about her violating their TOS. It was sent via FedEx, but yes, the formatting of the letter is so standard junk mail-ish she could have potentially tossed in the circular bin with all of the other official sounding junk mail that one tends to get.
Before the trial is out expect 10 witnesses for the Plaintiff’s side, not counting Jamie Thomas-Rasset. The Defense expects to call Jamie Thomas-Rasset and one additional witness, their expert from the University of Minnesota, Professor Kim. Judge Davis said to schedule two weeks for the trial despite the fact that the RIAA expects to be done in 4 or so days of testimony. We kept hearing “with my schedule” from Judge Davis, which makes me suspect that the Judge has a few other conferences or trials to juggle.
In the end, not many fireworks, just a legal mismatch. Given the caliber of the MAFIAA’s legal acumen so far, this is about what we were expecting. Kiwi Camara looks to be a little tougher of an opponent than either people who aren’t aware of the suits, kids that can’t afford a lawyer, or the dead. This is going to be fun.S|A
*Not to worry dear reader, if Ms. Thomas-Rasset is this wishy-washy stoopid we’ll point that out too. Like we said, a good show, no?
** SemiAccurate’s NewsDesk is used as an author by multiple writers of ours. The reporting on this is a team effort as not everyone can make the trial everyday and the technical background and analysis is provided by Charlie Demerjian. Please appreciate the enormous team effort required to bring you timely news on this case.