RIAA Defendant: Best Buy Replaced My Hard Drive During Warranty Repair
The RIAA defendant who lost her jury trial, Jammie Thomas, is telling her side of the story on p2pnet. Of particular interest: She claims that Best Buy made the decision to replace her hard drive, under the terms of her extended warranty, 6 months before she was served with the RIAA's subpoena.
I have read many comments and articles that I had my hard drive replaced after I learned of my suit. This could not be further from the truth. What most people don't know, if I did have my hard drive replaced after I was served the initial complaint to this suit, that would be considered spoliation of evidence, which is a criminally prosecutable offense. All the following dates, keep in mind so you can see the timeline yourself.The day MediaSentry (the RIAAs 'investigative' company) said I was caught illegally sharing songs over KaZaa was February 21, 2005. My computer crashed approximately 2 weeks later. The only reason I know why it crashed is this: my boys were playing a video game and in the middle of some epic battle on their game, the computer froze up, then the screen went black, and in my child's frustration, the side of the computer was smacked. After that, the computer would not load and I would receive error messages.
I brought my computer into Best Buy for repairs on March 7, 2005. Remember, I brought it in for repairs under the extended warranty, not to have the hard drive replaced. And if anyone who has used a large chain electronic store to repair their electrical equipment knows, these companies do not replace hard drives on the whim of the customer if they have to pay for the hard drive replacement covered under warranty. They try to do whatever is cheaper for the company, which normally means fixing the issues with the hard drive. With my hard drive, the issues couldn't be fixed so Best Buy, not me but Best Buy, made the decision to replace the hard drive.
The RIAA didn't subpoena my personal information from Charter until late April 2005, almost 2 months AFTER my hard drive was replaced. As with all RIAA subpoenas to ISPs, I was not notified of the court date when the subpoena was issued. I was only notified after Charter Communications was served with the subpoena. This letter came late April 2005, again 2 months AFTER my hard drive was replaced. I didn't officially hear from the RIAA until late August 2005, almost 6 months AFTER my hard drive was replaced. The lawsuit itself wasn't officially started until April 2006, over 1 year AFTER my hard drive was replaced.
As you can see, I did not replace my hard drive to hide any evidence of anything. The replacement wasn't my choice and I would have to be psychic to know 2 months in advance my personal information was going to be subpoenaed and a year later, I would be sued.
Yes, all this information was given to the jury during the trial. The main problem that arose concerning my hard drive was the date I gave my attorney for when the hard drive was replaced. I didn't check the records for Best Buy before I gave my hard drive to Mr. Toder, so when I told him the hard drive had been replaced, the date I gave was January or February of 2004. Obviously, after we received all the information from Best Buy, we saw that the hard drive was replaced in March 2005. We also found out I didn't even own the computer until March 2004, one month after the date I told my attorney.
The "replaced hard drive" was the RIAA's basis for claiming that Ms. Thomas concealed the evidence of her copyright infringement, and was cited as the reason that the RIAA could not produce any actual evidence of file-sharing. The lawsuit concluded when a judge ordered Ms. Thomas to pay $222,000 for allegedly sharing 24 songs.
This story raises some interesting questions about the implications of surrendering broken hard drives to retailers like Best Buy. Interesting questions, and scary ones, too.
Jammie Thomas: her story in her own words [p2pnet](Thanks, David!)
This is a test using rich text formatting and html links. It's the generic "company" ad that should appear on all posts with the Company category if they don't have an ad attached to a specific company.
Post a comment
Comments:
Best Buy and the RIAA united here at last! All we need know is that the hard drive in question is encased in some recalled meat--from Wal-Mart, of course.
She had to pay? even with a lack of evidence? God that sucks.
You're really stuck between a rock and a hard place when trying to reflect on things like this.
On one hand, it is inexcusable that they implicated her without any physical proof of her wrongdoing. But on the other hand, does anyone doubt that she really did share these files? I mean, last time I checked, it's still illegal. Whether or not you agree with the law is irrelevant, it's still illegal.
It's kind of like how people always use the 4th amendment and "probable cause" to try to avoid DUI charges, marijuana possession, and getting caught drinking underage. I'm all for preserving the constitution and our civil liberties, I just wish it was done in a more noble fashion and not one that's so blatantly self serving and borderline immoral.
I'll be interested to know what happens in the appeals court.
I still get a lump in my throat every time I read that she was ordered to pay $222,000.
Talk about biting the hand that feeds. How long will the citizens of the United States allow this abuse to continue? 24 songs + $222,000? This has gone beyond sick.
People, when you download, use foreign proxies. PLEASE! It's easy, and a quick Google search will show you how to set it up. A number of torrent downloaders even have TOR built right in.
It may only be a pipe dream, but it would be wonderful if, just for one day, the entire population of the US would boycott the RIAA by not purchasing a single CD/Track/MP3. That would show the labels who is really in charge: the people spending the money on the music. Show the RIAA that the abuse suffered is enough.
One thing that gets me is she was being sued and didn't worry at the time about getting the dates right? That makes you wonder about the person.
Guys, it wasn't a "lack of evidence"...
There were tons of UNCONTESTED evidence, and a civil verdict only requires a perponderence of the evidence standard.
To whit...
Her IP address
Her commonly-used username on many other sites.
Those files being verified as available from a person using the username she always uses, from her IP address.
It would either take someone out to DELIBERATELY frame her, or she did it.
Soooooo,
Guilty until proven innocent, is it? If you don't have the evidence saved to prove you are innocent, you are guilty? Nice. These lawsuits have no merit, and it's only the government's ignorance about technology that even allows them to proceed at all.
Even if someone shared a file called, "The Killers - Mr. Brightside.mp3," for all intensive purposes, it could be a text file renamed .mp3. It is the record companies that have the burden of proof, and it is clearly an impossible burden.
What really bothers me about this is the fact that she's being blasted for destroying evidence -- when, at the time she did it, she didn't know there was a case and therefore didn't know that there was any "evidence" to destroy!
Sure, it's wrong to knowingly destroy evidence, but doing it way before a legal case is ever filed is NOT wrong. It was her property, her choice to do whatever she wanted with it. She could have taken it out back and shot it if doing so is legal where she is, and they would have to suck it. (I know people who have disposed of old hardware this way).
Circumstantial only because the original evidence was destroyed....The matter of the fact is she knows she did it, she knows she broke the law, and now shes looking for technical loopholes to get around it.
and what the heck is she teaching her kinds. Honey...if you break the law, you have to look for legal loopholes to get out of it...nice....The fact that she repeats herself several times also states that she doesn't know what the heck she is saying and her statement was a butchery of the English language.
you know what, I think the RIAA sucks, and you know what I have gotten music from "sources" and I accept that, and If i get caught, ill do everything I can to try and get out of it, but people here need to stop treating this women as if she is innocent...she broke the law...thats that.
Thats not to say that the compensation the RIAA is looking for isn't a little extreme...give her the 5 years in prison like they do for movies and the 10,000 dollar fine and call it even. :-D
My problem w/ this case is that the companies that the RIAA was representing (besides the one's that backed out) also make hardware and software specifically made to copy digital music files. Some even offer a feature to download CD track names so you don't have to copy it from the CD, now why would any private digital music info be on a CD database? It wouldn't unless it's a retail CD. You can't have your cake and eat it too. So Sony, for example, doesn't want you to make even one copy of their Sony/BMG CD, UNLESS of course you use THEIR software to copy it and sync it to THEIR mp3 players? So they'll SELL you a CD, software & hardware and then SUE you for using it.
Damn remind me to get paid in songs instead of US dollars!
@sciencefreak: There's no way they would ever get someone in prison in a case like this. Although it looks like she is guilty, they were pretty lucky to find a jury that would rule in their favor in civil court because the actual evidence is weak at best. The amount of evidence required to put someone in prison is on a completely different level than is required to award the plaintiff an ungodly sum of money the defendant will never be able to afford.
@sciencefreak: The matter of the fact is she knows she did it, she knows she broke the law, and now shes looking for technical loopholes to get around it.
This is what I agree with. The "loophole" isn't really a loophole, it's standard civil liberties. But it really burns me up to know that people are using our civil liberties for such self-serving, base purposes.
They can charge you all they want for trying to destroy/get rid of evidence, but they have to PROVE that is the case.
Remember, if the RIAA is after you, destroy your HDD and claim your computer has worked in years. GG
@brettt:
First off, it's a civil proceeding, so it's preponderance of the evidence (i.e. more in favor than against) that carries the day, not "beyond a reasonable doubt."
Secondly, there's a "reasonable person" provision in the law. It's possible that someone is sharing a text file called "The Killers - Somebody Told Me.mp3." It's also possible that space aliens used their intell-o-rays to plant the files on her hard drive, and then used the rays to crash her computer again.
find a job that pays under the table and never pay them 1 cent. thats what i'd do. the next american revolution is going to be ugly at this pace. that is when we find the time to protest.
maybe i'm a little extreme (no different than the penalty in this case), but all those head-hanchos that helped to screw me, would all end up missing eventually. laywers, corp heads, judges and all.
and there's nothing technically wrong with using circumstantial evidence. That's a myth perpetuated by watching too much bad TV; and, for "all intents and purposes" they did have some pretty good evidence. It's her counting on jury nullification that rankles almost as much as the overzealous lawsuit itself.
tell it to the judge lady, you know, someone that actually might give a damn.
I don't care if she's guilty, $222,000 for sharing 24 songs is insane!
BY SCIENCEFREAK AT 05:08 PM
Circumstantial only because the original evidence was destroyed....The matter of the fact is she knows she did it, she knows she broke the law, and now shes looking for technical loopholes to get around it.
You know nothing of the sort. Nor was "evidence destroyed." Nothing in Ms. Thomas possession was "evidence" at the time her computer crashed and was--**undisputedly**--replaced at the sole discretion of Best Buy's warranty service as there was no legal action lodged or even pending against her.
By your standards, Sockpuppet--I mean "sciencefreak--, eptying the trash bin, defragging or fixing any computer **at any time** is destruction of evidence because you never know when an industry group may sue you for any reason.
The RIAA suit was defective on any number of levels and failed to meet the standards of evidence, used unlicensed investigators and failed to prove a single count of **distribution**, instead hinging entirely on innuendo and the dubious and statutorily incorrect "making available" argument by which every library and DVD rental store is guilty of copyright infringement.
...and 1/4 of a million dollars? Ridiculous and unconstitutional (excessive fines). The statutory damages were created for catching commercial copyright infringers, like when someone pirates an entire DVD and sells it across the country, not for individual 3 minute songs--why not charge each second as a separate offense? Every 1/2 second? It would make just as much sense and be just as untenable.
This is just the tip of the RIAA iceberg.
Fire up your Bit Torrent client and download Steal This Film:
BY JUSTAGUY2 AT 07:13 PM
@Skeptic:
Unfortunately for her, you weren't on her jury.
No, it isn't just the jury's fault. Unfortunately for the rule of law the judge was in too much of a hurry to carefully properly read the statutes and case law and allowed the RIAA to steamroll over rules of evidence and points of law. By doing so the judge allowed monied interests to victimize a defendant by the weight of their deep pockets and shameless abuse of the system.
This isn't about me. This is about insuring that the legal system is fair and it's about insuring that rich and powerful litigants don't get outrageous judgments by assertion rather than proof and a proper legal case.
@Skeptic:
Well, given that she spent $60k-plus on her defense, and is appealing (also on her own dime), she's clearly not some helpless defendant being "victimize[d]." She has resources and very strong counsel, but she has a very weak case, and she lost.
We'll see how the appeal turns out - from all the evidence I've seen, it'll likely go about as well as the initial case at trial. You know as well as I do - the rule of law means that the statute is whatever the court rules it to be.
As much as I hate the RIAA and MPAA, Jammie Thomas didn't have much of a defense here. All the evidence pointed to her guilt. My main issue with this case is the judgment of $222,000 for 24 songs. The punishment hardly fits the crime. This is a clear example of a jury with a power trip, and making an example of her. From Wired..
"I think she thought a jury from Duluth would be naïve. We're not that stupid up here," he said. "I don't know what the fuck she was thinking, to tell you the truth."
@Skeptic:
You know what Skeptic...deleting files, defraging your harddrive, using encryption technology ARE ways of destroy and covering up evidence....just look at corporations every day getting out of problems because they suddenly "lose a file" or say...oh the data must have gotten corrupted.
You are totally blinded by your hate for the RIAA. While the damages SEEM exsessive. lets just say (for arguments sake) that 220,000 people (which many more are acutally on these peer-to-peer networks) were going to buy the song from itunes for 99 cents...oh wait...they just lost 220,000 dollars because they got it for free from the net...YES the RIAA over charges...but you know what they always have and people have not voiced there opinion as much as they do now because of the option of it being free....personally I think the "high" price of music is more of a excuse for people to make themselves feel better when engaging in an ILLEGAL activity.
I bet you have never owned a intrument...you know what for my bands setup we have spend over 10,000 dollars on equipment, not to mention promotion and travel...also have you any IDEA how much it costs to run a mastering studio? we are tlaking MILLIONS of dollars of equipment....and it is NOT just the major record lables that are hurt by this...more and more indie music shows up on these sites every day.
they say bands make money from concerts...maybe britney spears does...but the average band makes jack shit, and its the venue that really profits from it.
Stop pretending we live in some sort of communist utopia where everything is free for the taking. This woman was wrong, and all due punishment will be given to her.
The fine was ridiculous, period.
@StormyBkln: "...it would be wonderful if, just for one day, the entire population of the US would boycott the RIAA by not purchasing a single CD/Track/MP3. That would show the labels who is really in charge..."
Except would it really? Sales figures are already failling... you'd think that when people stop buying their product, the record companies would say "gee, maybe we need to shift gears on our free money train". However it appears that the RIAA (and the MPAA) are so used to their endless income stream that even if everyone were to boycott the products, we would simply be fueling the whole piracy issue. I don't think these companies actually understand anymore that the public is not (yet) legally obligated to buy their product, despite the massive lobbying done to make that so. I bet that if there was a boycott, all it would do is cause an immediate law against whatever ghostly specter of file-sharing they could push through congress, if not establish an out-and-out 'recording industry' fee on all storage media as in Canada.
BY LATHERRINSEREPEAT AT 09:17 PM
As much as I hate the RIAA and MPAA, Jammie Thomas didn't have much of a defense here. All the evidence pointed to her guilt.
That's funny. If you followed the case you'd know that the RIAA member labels **didn't demonstrate one single instance of distribution** by the defendant. Their case was legally deficient on its face. That fact is indisputable.
Stop pretending we live in some sort of communist utopia where everything is free for the taking. This woman was wrong, and all due punishment will be given to her..
Communist Utopia? WTF? Did you even read my post? If you did, you certainly didn't **understand it.** My posts have hinged on the blatant inadequacy of the legal aspects of the case at hand, not about any other issue. The RIAA's unjustified victory in this case was a victory for unbridled corporatisim in lieu of the rule of law and for the idea that corporations are a special form of personhood entitled to special free exemption from the normal rules of law and allowed to frivolously sue people without consequence.
BTW, since you say you are a musician, how much do you think the authors allegedly infringed songs get from the settlement? The answer? Zero! None of the money goes to the musicians. It all goes to the label. Good thing you are on their side--you'll make sooooo much money doing that.
I think the facts need to be set straight. The RIAA never accused her of changing her hard drive after they served her with papers. From what I read, she replaced the hard drive AFTER she received an IM from the RIAA that she was violating copyright--they sent it because of whatever actions were going on on her computer. Nothing I read declared she was being accused of changing the hard drive after she was served. She changed her hard drive long before being served but AFTER she was notified by IM that she was breaking the law. That is what the jury heard and why her actions seemed so suspicious. It was shortly after she received that IM that her hard drive was replaced.
As for the poster claiming only the labels get the money from the suits--have you never head of royalties? Songwriters, performers, producers, and depending on the situation, musicians all get royalties paid to them by the labels. The labels also PAID for the music to be produced, they paid the producers, the engineers, the rental space, the musicians, etc . . .
Copyright law was created to protect the rights of artists--musicians, writers, painters, choreographers, etc . . . the unfortunate reality is that there are people out there (some who ae here) who have no problem STEALING from writers and artists.
For those who are violating copyright, why don't you write a song, hire the musicians, engineers, rent a recording studio, produce the song and then you can distribute it freely. Until then, you do not have the right to violate somebody's copyright. It is wrong legally, ethically, and morally. It is stealing. We write here about how big business are essentially thieves and cheats, but in the case of digital music, it's clear regular people (aka consumers) are the ones acting like thieves.
And finally, she wasn't just fined 223K. Her total owed will be closer to 500K. Why? Because if you are found to have violated copyright law and lose the case, you AUTOMATICALLY must also pay the other side's legal fees. As far as I know the RIAA has not submitted to her their legal fees, but it's estimated the total of the fines and the legal fees will be around $500,000.
BY GINGERCE AT 02:21 AM
As for the poster claiming only the labels get the money from the suits--have you never head of royalties? Songwriters, performers, producers, and depending on the situation, musicians all get royalties paid to them by the labels. The labels also PAID for the music to be produced, they paid the producers, the engineers, the rental space, the musicians, etc . . .
Why, yes, I have heard of royalties. However, the industry only pays royalties on units sold (including streaming, licensing, etc), not for any monies awarded in these lawsuits. You really need to look into this. If you are a musician you need to **demand** that the RIAA pay the composers from these awards. As of now, these unjustly awarded punitive damages only line the pockets of the labels and there is no royalty income passed along to the composers. In this case, as has long been the tradition, it is the **labels** who are stealing money from the artists, not the general public.
You really need to look up your facts before getting all huffy with me.
@Skeptic:
Yup, and those damages, if they get high enough that people stop illegally downloading music, will generate higher sales, which generate higher royalties.
Since the odds of being punished for file sharing are so low, its entirely reasonable that the penalties be high, so that the expected cost of doing it exceeds the benefit from doing it (i.e. % chance of being caught * cost if caught > cost of purchasing the music).
Bottom line, the record companies made a case that the judge viewed as valid and that the jury found compelling. She'll appeal, and we'll see what happens, but I expect the decision to be confirmed.
@brettt
You killed me with this, " for all intensive purposes, it could be a text file renamed"
look up, "intents and purposes" -
"The phrase is a corruption of "for all intents and purposes" by persons who have heard the phrase, but have not read it in it's proper form. It means "for all intents, and for all purposes."
....
school's out..
now....
back to the matters at hand!
Bring on the encrypted P2P!
i mean seriously, do we not have bigger issues?
i am all for encryption and secure tunneling as well. everything should be encrypted, always.
"Goody two, Goody two, Goody Goody two shoes
Goody two, Goody two, Goody Goody two shoes
Don't drink don't smoke - what do you do?
Don't drink don't smoke - what do you do?
Subtle innuendos follow
There must be something inside"
-Adam Ant
Too many "goody two shoes" in this thread. It must suck to always follow the rules.
I don't always follow the rules, but I don't bitch and moan about it when/if I get caught.
@axiomatic: Yah, because it is cool to steal. Stealing rules, it rules! You are so right. Society would be much better if we all just took. Thank you for your insight.
Wait, wait, wait...
If I recall - she was offered a $4K settlement or something along those lines.
Okay - If I broke the law and I KNOW I broke the law and I KNOW going to court is going to be expensive and I KNOW there's a good chance I'm going to lose because I'm going against a giant with unending resources, $4K seems MOST reasonable. I'm paying it and cancelling my high-speed internet to reimburse myself.
The fact that her computer harddrive broke within 60 days that their might be trouble is shifty, shifty, shifty too... it looks like she was trying to dodge a bullet and get rid of evidence. And her attitude since this whole thing started isn't going to win her any friends (on a jury) either.
Bottom line: the RIAA gave us AMPLE warning that they were going to start supoenaing IP's. I canceled ALL p2p accounts prior to that. Sure - the fines are ridiculous, even $4K for 24 songs would piss me off. But if some huge guy says that they're going to show up at my house at 8 o'clock on Tuesday and kick my a$$ - I'm not going to be in my house at 8 o'clock on Tuesday... ya dig?
She played the whole hand stupidly and ended up losing big. Why are we suprised?
@Javert: I didn't say "steal." Point to where I said to do that please? But the "righteous" attitude in some of these responses sure makes me want too, just for spite. Your claim that I said to "steal" is exactly the "righteous" attitude I'm talking about.
BY ANDYROGERS AT 02:20 PM
But if some huge guy says that they're going to show up at my house at 8 o'clock on Tuesday and kick my a$$ - I'm not going to be in my house at 8 o'clock on Tuesday... ya dig?
Hmmm...what if a "huge guy" (let's call him Ria) says he's going to kick your ass unless you pay him $4,000--and even if you do pay him $4,000 he and his buddies **still** reserve the right to kick your ass at any time in the future--because that is essentially what the RIAA is doing. The RIAA only represents the **labels** who are not the sole rights holders. The extortionate, non-negotiable "settlements" demanded by the RIAA do not include any indemnifacation for any alleged infringement even though the defendents pay the RIAA thousands for these so-called settlements. The RIAA reserves the right to sue you and the RIAA does not indemnify you from being sued by other parties over the same alleged infringement.
This came out and was explained in detail during the trial but she's right she did catch a lot of flack for it anyway. It just goes to show you how quick people are to judge without caring enough to learn the whole story.