Davis has now ordered a retrial.

From Wired's Threat Level blog:

The RIAA, which is the music industry's lobbying and litigation arm, fought hard to keep Jury Instruction No. 15 in play. The group told the judge that copyright infringement on peer-to-peer networks is implied, and that it shouldn't have to provide proof of an actual transfer — because it's impossible.

"Requiring proof of actual transfers would cripple efforts to enforce copyright owners' rights online – and would solely benefit those who seek to freeload off plaintiff's investment," RIAA attorney Timothy Reynolds said in a court filing.

The judge also took issue with the amount of the verdict.

"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 500 times the cost of buying 24 separate CDs and more than 4,000 times the cost of three CDs."

Judge Declares Mistrial in RIAA-Jammie Thomas Trial [Wired Threat Level]
(Photo: AP)

This document is among other briefs submitted to a judge overseeing the Jammie Thomas trial, the only RIAA case ever to go to trial. Thomas was sued by the RIAA for $222,000 for "making available" 24 songs on the Kazaa network. At the time, Judge Davis instructed jurors that they only needed to find that Thomas had an open share folder and not that the songs were actually copied or transferred. However, the judge has since suggested that he made have made a mistake in giving this instruction and is deciding whether to order a mistrial.

The article says,

The deadline to submit briefs to the judge was Friday. Among the briefs, the Electronic Frontier Foundation, Public Knowledge, the United States Internet Industry Association and the Computer and Communications Industry Association all jointly filed a brief, saying the law did not allow damages for "attempted" copyright infringement.

"Given the serious consequences that flow from copyright’s strict liability regime, the court should resist plaintiffs imprecations to expand that regime absent an unequivocal expression of Congressional intent," the groups wrote, noting that the language in the Copyright Act demands actual distribution to the public of protected works.

It was a similar brief in tone to the one that a group of 10 intellectual property scholars lodged earlier in the week.

But the MPAA, long an ally to the RIAA, which has sued more than 20,000 individuals for file sharing of copyrighted music, told Judge Davis that peer-to-peer users automatically should be liable for infringement.

"The only purpose for placing copyrighted works in the shared folder is, of course, to 'share,' by making those works available to countless other P2P networks," the MPAA wrote.

It is absurd that lawyers, of all people, believe we should live in a society where clear and concrete proof needn't be necessary to establish one's guilt. Proving cases of copyright infringement is far from impossible. It is only a matter of spending the proper amount of time and money to do so.

MPAA Says No Proof Needed in P2P Copyright Infringement Lawsuits [Wired]
Capitol v. Thomas [Wiki]

The main problem with the system, researchers contend, is that enforcement agencies are only looking at IP addresses of those participating on peer-to-peer networks and don't focus on the actual files being transferred. The article says,

In two separate studies in August 2007 and May of this year, the researchers set out to examine who was participating in BitTorrent file-sharing networks and what they were sharing. The researchers introduced software agents into these networks to monitor their traffic. Even though those software agents did not download any files, the researchers say they received more than 400 take-down requests accusing them of participating in the downloads.

The research team, including Michael Piatek a graduate student, says these takedown notices should be viewed with some skepticism. He says, "Because current enforcement techniques are weak, it is possible that anyone, regardless of sharing content or using BitTorrent, could get a D.M.C.A. takedown notice claiming they were committing copyright infringement."

Mr. Kohno, an assistant professor at the university said, "Our study scientifically shows that flaws exists." He adds, "It’s impossible to prove that other flaws don’t exist, especially since current industry practices are so shrouded in mystery. Ultimately, we think that our results should provide a wake-up call for more openness on the parts of content enforcers."

We hope that these kinds of studies help to bring about changes in the way that DMCA takedown notices are issued. Copyright infringement lawsuits have turned into big business for trade groups but they continually fail to consider the innocent victims which are being snagged in their massive net. To accuse someone of a crime is serious business, it is only fair that the method by which they are accused be just as serious.

The Inexact Science Behind D.M.C.A. Takedown Notices [New York Times]
(Photo: Getty)

Earlier this month the RIAA voluntarily dismissed the case—then refiled it last week but didn't mention it was the same lawsuit, which means it was assigned to a different judge. Now the RIAA is demanding immediate discovery (which includes depositions and hard drives), which the previous judge had blocked pending a rule on the dismissal motion. We tip our hats to you, RIAA lawyers. You bring every evil-lawyer cliche from TV to life.

"These people are psychos," Beckerman said in an interview.

Also, the case was captioned under the name Does, meaning the RIAA was somehow pretending it didn't know the family's name allegedly behind the IP address in question.

"This case, it's the exact same internet access account," he said. "It’s the very same act of copyright infringement charged. It's no different."

The RIAA did not immediately respond for comment.

Beckerman has penned letters to both judges alerting them to the switcheroo.

"They're trying to force a settlement and frightening people," Beckerman said in the interview. "That's the only point of this."

"Lawyer: RIAA Gets Sleazy in Disputed Downloading Lawsuit" [Wired Threat Level] (Thanks to Chris!)
(Photo: Getty)

The article says,

The attorney fee award is separate from a national class action lawsuit Andersen filed against the recording industry last year.

Andersen's legal battle with the Recording Industry Association of America has gained national attention as a case of David vs. Goliath. Her suit accuses the industry of a waging a "campaign of threat and intimidation" against her and others who have never illegally downloaded music.

"While we respectfully disagree with the magistrate judge's decision to award extraneous fees — including on counterclaims that the defendant herself brought and dropped — it is important to note this decision is only a recommendation and falls significantly short of defendant's requests. We will likely file an objection in short order," said Cara Duckworth director of communications for the Recording Industry Association of America.

The recording industry has taken legal steps against thousands of people suspected of illegally downloading music since 2003.

The industry sued Andersen in 2005, but dropped the case last year after failing to turn up evidence that she illegally downloaded music.

Congratulations to Tanya. It's nice to see that one person can not only defend herself but turn the system against bloodthirsty, big-time corporate lawyers. Hopefully decisions like these will teach the RIAA to be more careful about who they put in their cross-hairs.

Beaverton woman wins $108,000 against recording industry [The Oregonian] (Thanks to Nick!)

Although it won't affect other cases, the RIAA was handed a small smackdown this week when a U.S. district judge rejected their request for a summary judgement, and ruled that putting song files in a shared directory was not enough proof that infringement had occurred.

The judge said that the RIAA "must prove that the songs were actually downloaded," which is not a distinction past judges have made. Whether or not this ruling will cause other judges to look at the RIAA's future claims in a different light remains to be seen, however.

Wake's ruling pretty much contradicts many of the legal arguments the RIAA has presented in those peer-to-peer lawsuits the organization has brought against individual users. However, not that many cases actually make it to court, mainly because defendants often opt for settling for a few thousand dollars instead of shouldering expenses for a jaunt through the civil legal system.

Yet another reason not to buy DRM music. They are telling us that we have to burn our music to CD format since no additional computers or devices can be authorized after August 31, 2008. So let's see. Burn to CD, then rip said CD to MP3. Couldn't they just give us a tool to do it for us, just this once?

MSN Music is constantly striving to provide you, our user, with the most compelling music experience that we can. We want to tell you about an upcoming change to our support service to ensure you have a seamless experience with the music you've downloaded from MSN Music.

As you may recall from a November 14, 2006 mail, we entered into a new partnership for music downloads. The Zune Marketplace can be accessed directly from any MSN Music artist page and offers users thousands of tracks for users to download individually or with a season pass subscription. You can still come to MSN Music to find all the latest news and previews of your favorite artists and songs, but in order to buy music, we'll take you to our partners at the Zune Marketplace.

With the launch of our partnership with Zune Marketplace, we closed the MSN Music store and stopped selling music directly from MSN Music. However, we have continued to offer assistance and support for existing songs that you've purchased from MSN Music, including help to transfer songs that you've purchased to additional computers and MSN Music compatible devices.

I am writing to let you know that as of August 31, 2008, Microsoft will change the level of support to be offered for music purchased directly from MSN Music prior to November 14, 2006. As of August 31, 2008, we will no longer be able to support the retrieval of license keys for the songs you purchased from MSN Music or the authorization of additional computers. License keys already obtained as of August 31, 2008 will continue to allow you to listen to songs on all the computers that you previously authorized for service.

We wanted to send out this notification well in advance to remind you to backup your music and to provide you sufficient time to confirm license keys for the songs you've purchased from MSN Music.

This is also a good time to remind you that you can back up and secure your music by burning your purchased songs and playlists to CD. With Windows Media Player, you can burn your own Audio CDs from the music stored in your library. Complete instructions for this can be found at MSN Music online help.

Please take this opportunity to make sure you have the licenses you need to access your music. As a friendly reminder, please remember that the MSN Music service allows you to authorize up to 5 computers for songs purchased from MSN Music. You must have licenses for the songs on each authorized computer, in order to be able to play the songs successfully. If you have already played a given song on a computer, then you have successfully obtained the license key for that song. MSN Music keys do not expire. If you intend to transfer a previously downloaded song to a new computer (or an existing computer with a new operating system, such as an upgrade from Windows XP to Windows Vista) within the maximum allowed limit of 5 computers, please do so before August 31, 2008. You will need to obtain a license key for each of your songs downloaded from MSN Music on any new computer, and you must do so before August 31, 2008. If you attempt to transfer your songs to additional computers after August 31, 2008, those songs will not successfully play.

If you have additional questions about this process or any other questions about playing your music, please visit MSN Music online help for more information or feel free to contact our Technical Support representatives for assistance, prior to the August 31, 2007 date.

I'd like to personally thank you for your continued support of MSN Music and encourage you to send us your feedback and suggestions about how we can continue to improve the MSN Music experience.

Sincerely,
Rob Bennett
General Manager, MSN Entertainment & Video Services

The defendant, Troy Augusto, is an eBay seller who sells promotional CDs that he finds at used record stores. UMG, a member of the reigning Worst Company in America, sued, claiming that Augusto was distributing their material in violation of UMG's copyright, and that any transfer, even to a garbage can, is unauthorized. August and EFF have counterclaimed that UMG is attempting to restrict Augusto's "first sale" rights. In their brief, they argue that the first sale doctrine allows Augusto, as owner of the CDs, the right to sell or transfer them as he sees fit. In establishing that UMG's distribution of promotional CDs is an effective transfer of ownership, EFF points out that UMG sends the CDs unsolicited and does not keep records of who receives the discs, nor do they typically attempt to have the CDs returned or warn recipients that they might try to:

In short, those to whom UMG mails "promo CDs" enjoy all the principal hallmarks of ownership: their possession is unlimited in time, they are under no obligation to return the CDs, and there is no penalty to them should the CDs be lost, damaged or destroyed. UMG, for its part, also behaves as though it has parted with ownership: it does not keep records regarding the whereabouts of the CDs, nor has it ever sought their return from the recipients.

Exact terms of the deal and details about the new site, like prices for downloaded music tracks, were not disclosed. But MySpace did say the site would offer songs free of digital rights management software or D.R.M., which is used to prevent illicit copying but can create technical hurdles for buyers. The songs would be playable on any portable music device, including Apple's iPod.

MySpace and Record Companies Create Music Site [NYT]

Google is like the elephant that never forgets... and it knows all of your personal information. Do you trust it not to be "evil?" Or is Google just a nice name for "Big Brother?" Let's not forget how they bowed to Chinese government demands that Chinese users be prevented from seeing certain search results, like information about the 1989 Tiananmen Square massacre.

Sony is a member of former Worst Company in America winner, the RIAA. When its not fake blogging, it can be found installing a rootkit on your computer and finding lots of ways to void your warranty.

This is a post in our Worst Company In America 2008 series. Keep track of all the goings on at consumerist.com/tag/worst-company-in-america/

STILL OPEN FOR VOTING: Ticketmaster vs Wachovia, Facebook vs The American Arbitration Association, Comcast vs Menu Foods
(Photo:Jeff Sanquist)

Lawyers who have represented artists such as The Rolling Stones, Van Halen, and Christina Aguilera say artists and managers are upset that they haven't seen any of the settlement money the RIAA received after suing the popular file-sharing services. According to the New York Post, the artists are "girding for battle with their music overlords," who respond that they have "started the process" of figuring out how to share the money, most of which was received seven years ago in a settlement with Napster. The RIAA also claims that there isn't actually that much money available after subtracting legal fees. Whoops.

"INFRINGEMENT!" [New York Post]
"RIAA Keeps Settlement Money, Artists May Sue" [TorrentFreak](Thanks to Smitherd and Jim!)
(Photo: D.S.B.)

One distinctive tool in this situation is Rep. Steve Cohen (D-TN), who introduced an amendment that would explicitly deny funding to schools who didn't comply, but then had his staffers pull the amendment at the last minute with the excuse that he wasn't there in person to introduce it. We'll apparently have to look forward to Rep. Cohen's industry-friendly amendment at a later date.

"Controversial college funding bill passed—P2P proviso intact" [ArsTechnica]
(Photo: Getty)

Saul Hansell spoke to Tom Tauke, Verizon's executive vice president for public affairs.

"We generally are reluctant to get into the business of examining content that flows across our networks and taking some action as a result of that content," Tauke said, then gave three reasons why Verizon isn't thrilled with the idea of becoming piracy cops:

1) The slippery slope.

Once you start going down the path of looking at the information going down the network, there are many that want you to play the role of policeman. Stop illegal gambling offshore. Stop pornography. Stop a whole array of other kinds of activities that some may think inappropriate.

2) It opens up potential liability for failing to block copyrighted work.

When you look back at the history of copyright legislation, there has been an effort by Hollywood to pin the liability for copyright violations on the network that transmits the material. It is no secret they think we have deeper pockets than others and we are easy-to-find targets.

3) Privacy.

Anything we do has to balance the need of copyright protection with the desire of customers for privacy.

Verizon Rejects Hollywood's Call to Aid Piracy Fight [New York Times]

In December, Nintendo had its biggest month ever with the hot-selling game system. Holiday shoppers bought 1.4 million Wiis, according to sales data released Thursday by the NPD Group. The Wii's success helped drive the video game industry to a record-setting $17.9 billion in sales, about 43% higher than 2006's $12.5 billion, which was also a record.

What's up, music? Video games are kicking your butt.

Gaming industry sales grow by 43% in 2007 [USAToday]
(Photo:largeprime)

The P2P-turned-legit subscription service announced this morning that it will begin selling unprotected copies of its entire catalog in MP3 format beginning in the second quarter of 2008. Users of the service will be able to buy individual DRM-free tracks and albums, but Napster's subscription service will remain unchanged. The company hailed the announcement as the first subscription service "featuring major label content" to announce plans to sell unprotected MP3s.

Sort of makes you wonder: Couldn't they have started doing this, like, 7 years ago?

Napster goes back to MP3s [Ars Technica]

In a move that would mark the end of a digital music era, Sony BMG Music Entertainment is finalizing plans to sell songs without the copyright protection software that has long restricted the use of music downloaded from the Internet, BusinessWeek.com has learned. Sony BMG, a joint venture of Sony (SNE) and Bertelsmann, will make at least part of its collection available without so-called digital rights management, or DRM, software some time in the first quarter, according to people familiar with the matter.

Sony BMG would become the last of the top four music labels to drop DRM, following Warner Music Group (WMG), which in late December said it would sell DRM-free songs through Amazon.com's (AMZN) digital music store. EMI and Vivendi's Universal Music Group announced their plans for DRM-free downloads earlier in 2007.

Will they? Or did the RIAA miss the bus?

Sony BMG Plans to Drop DRM [BusinessWeek]
(Photo:Getty)

Yahoo! Music was painless to cancel, but Napster took a half hour:

Napster
What a pain. There's no way to cancel online, so I called the cancellation number (800.839.4210) and waited on hold for about 20 minutes listening to messages like "Did you know that your Napster subscription lets you access over 5 million tracks? Please hold, and a customer service representative will be with you shortly."

A woman came on the line and asked me a bunch of questions (Was this my first call? Could I confirm my email? Is there a phone number on which she could call me back in case something goes wrong with the call? Can I hold again?). Granted, this is two days after Christmas, but still, I wasn't too happy at how long this was taking.

When she took me off hold again, I told her I wanted to cancel because 2007 was the year 3 of the major labels started selling music without DRM. Back on hold.

She came back — presumably after consulting a manager or the internet to find out what DRM is — and then responded, "I don't understand, because all of our music contains DRM." Back on hold. This time, I told her I wanted to cancel because the files were DRMed, and she finally canceled my subscription.

Total time for cancellation: 30 minutes and 32 seconds

Our favorite line is one of their warning signs that you might be buying a pirated product: "Compilation CDs that could only exist in the dreams of a music fan." In other words, "A product you would actually want, that is equal in value to what we're charging you for it."

"RIAA Fake News!" [LiveLeak]

The authors, Dierdre Mulligan and Aaron Perzanowski, point out that unless Sony deliberately tried to harm its customers, it neglected to properly evaluate its third-party DRM solutions before releasing them to the public—or else it would have been aware of the programs' potential for damage. From pages 1179-80:

Prior to inking the deal to provide XCP to Sony BMG, First4Internet's business focused on content filtering, particularly the automated recognition of pornographic images. Aside from an earlier revision on XCP used by a number of labels on a smattering of pre-release CDs, First4Internet had no apparent expertise or experience in content
protection software.

SunnComm, the company that delivered MediaMax, offered even more cause for concern. The company began as a provider of Elvis impersonation services. After a change in management following a false press release announcing a non-existent $25 million production deal with Warner Brothers, the company purchased a 3.5" floppy disk factory in 2001, displaying a disturbing dearth of technological savvy.

"The Magnificence of the Disaster: Reconstructiong the Sony BMG Rootkit Incident" (PDF) [Berkely Technology Law Journal via BoingBoing]

RELATED
"Universal Music CEO: Record industry can't tell when geeks are lying to us about technology"
Consumerist posts on the Sony Rootkit debacle
(Photo: Getty)

Atlantic v. Howell is a bit unusual because the defendants, husband and wife Jeffrey and Pamela Howell, are defending themselves against the recording industry's lawsuit without the benefit of a lawyer. They were sued by the RIAA in August 2006 after an investigator from SafeNet discovered evidence of file-sharing over the KaZaA network.

The Howells have denied any copyright infringement on their part. In their response to the RIAA's lawsuit, they said that the MP3 files on their PC are and "always have been" for private use. "The files in question are for transfer to portable devices, that is legal for 'fair use,'" reads their response.

"When an individual makes a copy of a song for himself, I suppose we can say he stole a song. Making "a copy" of a purchased song is just "a nice way of saying 'steals just one copy'," she said.

RIAA: Those CD rips of yours are still "unauthorized" [Ars Technica]

In addition to strengthening both civil and criminal penalties for copyright and trademark infringement, the big development here is the proposed creation of the Office of the United States Intellectual Property Enforcement Representative (USIPER). This is a new executive branch office tasked with coordinating IP enforcement at the national and international level. To do this work internationally, the bill also authorizes US intellectual property officers to be sent to other countries in order to assist with crackdowns there. In addition, the Department of Justice gets additional funding and a new unit to help prosecute IP crimes.

Congress' copyright reform: seize computers, boost penalties, spend money [Ars Technica]

RELATED: Contact Information For 50 Politicians Who Take Campaign Money From The RIAA
Congressmen Who Took Money From The RIAA Send Chiding Letters To Universities

Walmart's online music store ditched DRM back in August, and one assumes that strategy has been more successful than their old Microsoft "PlaysForSure" store that sold music that wouldn't work on an iPod or even a Zune.

Go, free market, go!

Amazon and Wal-Mart unwittingly team up against DRM [Ars Technica via BoingBoing]
(Photo:Ms. Jessica)

The groups, the International Federation of the Phonographic Industry (IFPI), the Recording Industry Association of America (RIAA) and other national associations, represent music companies and the fight against illegal piracy.

They receive funding from the four major music groups — EMI, Warner (WMG.N: Quote, Profile, Research), Sony BMG and Universal — and hundreds of small independent labels.

The IFPI said it believed the four majors give approximately 64 million pounds ($132.1 million) each year to itself, the RIAA and many other national associations.

EMI wants to cut funding to trade groups -source [Reuters]

Ars Technica speculates:

There may be another factor at work here: hostility towards the RIAA's campaign on the part of Harvard Law School professors Charles Nesson and John Palfrey, who run the law school's Berkman Center for Internet & Society. Responding to the RIAA's claim that its litigation strategy has "invigorated a meaningful conversation on college campuses about music theft, its consequences and the numerous ways to enjoy legal music," the profs called on Harvard to not betray the "trust and privacy" of its students.

"The university has no legal obligation to deliver the RIAA's messages. It should do so only if it believes that's consonant with the university's mission," wrote Nesson and Palfrey. "[The RIAA seems] to be engaging in a classic tactic of the bully facing someone much weaker: threatening such dire consequences that the students settle without the issue going to court. The issue is that the university should not be carrying the industry's water in bringing lawsuits."

Morris insists there wasn't a thing he or anyone else could have done differently. "There's no one in the record company that's a technologist," Morris explains. "That's a misconception writers make all the time, that the record industry missed this. They didn't. They just didn't know what to do. It's like if you were suddenly asked to operate on your dog to remove his kidney. What would you do?"

Personally, I would hire a vet. But to Morris, even that wasn't an option. "We didn't know who to hire," he says, becoming more agitated. "I wouldn't be able to recognize a good technology person — anyone with a good bullshit story would have gotten past me." Morris' almost willful cluelessness is telling. "He wasn't prepared for a business that was going to be so totally disrupted by technology," says a longtime industry insider who has worked with Morris. "He just doesn't have that kind of mind."

Why the RIAA may be afraid of targeting Harvard students [Ars Technica]
Universal's CEO Once Called iPod Users Thieves. Now He's Giving Songs Away. [Wired via BoingBoing]
(Photo:Joe Shlabotnik)

Copyright law says the RIAA can elect to seek statutory damages "instead of actual damages and profit." The law also says that $750 is the minimum amount per infringement if you go the statutory route, which explains where the RIAA came up with that ridiculous figure.

But the defendant is claiming that $750 per song counts as an unconstitutional violation of due process because the figure is unreasonably high when compared against the actual value of a downloaded song—and that she should pay the wholesale price per song, which she estimates at 70 cents. By her argument, the $750-per-song fee is 1,071 times higher than the actual damages suffered by the RIAA.

From the judge's order:

[Plaintiff] shall set forth with more specificity the categories of expenses they incurred in making the song recordings, such as, for example, royalties. Plaintiffs shall also state with specificity which categories of expenses, if any, (a) they are unable to quantify or (b) they cannot quantify without unreasonable burden or expense—and in the latter event, they shall explain why.

"RIAA Must Divulge Expenses-Per-Download" [Slashdot]

RELATED
pdf of electronic filing of the judge's order [Pike & Fischer]
"§ 504. Remedies for infringement: Damages and profits" [Cornell University Law School]
(Photo: Getty)

From Ars Technica:

Under the terms of the act, which is cosponsored by Rep. George Miller (D-CA) and Rep. Ruben Hinojosa (D-TX), schools will have to inform students of their official policies about copyright infringement during the financial aid application and disbursement process. In addition, students will be warned about the possible civil and criminal penalties for file-sharing as well as the steps the schools take to prevent and detect illicit P2P traffic.

That's not all: schools would have to give students an alternative to file-sharing while evaluating technological measures (i.e., traffic shaping, deep packet inspection) that they could deploy to thwart P2P traffic on campus networks. Many—if not most—schools already closely monitor traffic on their networks, with some (e.g., Ohio University) blocking it altogether, and the bill would provide grants to colleges so they could evaluate different technological solutions.

The most objectionable part of the bill is the part that could force schools into signing up for music subscription services. In order to keep that beloved federal aid money flowing, universities would have to "develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property."

MPAA chairman and CEO Dan Glickman is:

"Intellectual property theft is a worldwide problem that hurts our economy and costs more than 140,000 American jobs every year," said Glickman in a statement. "We are pleased to see that Congress is taking this step to help keep our economy strong by protecting copyrighted material on college campuses."

This is the funding that allows low-income students who would not otherwise have been able to afford college (like me, for example) to get a higher education. In a letter to Congress, the Association of American Universities wrote:

Such an extraordinarily inappropriate and punitive outcome would result in all students on that campus losing their Federal financial aid-including Pell grants and student loans that are essential to their ability to attend college, advance their education and acquire the skills necessary to compete in the 21st century economy. Lower income students, those most in need of Federal financial aid, would be harmed most under the entertainment industry's proposal.

New bill would punish colleges, students who don't become copyright cops [Ars Technica]
LETTER OPPOSING THE INCLUSION OF THE ENTERTAINMENT INDUSTRY PROPOSAL ON ILLEGAL FILE SHARING IN THE HEA (PDF) [AAU]
(Photo:George Miller [D-California, 7th Congressional District])

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.

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!)

What do you think about OiNK being shut down?
Trent: I'll admit I had an account there and frequented it quite often. At the end of the day, what made OiNK a great place was that it was like the world's greatest record store. Pretty much anything you could ever imagine, it was there, and it was there in the format you wanted. If OiNK cost anything, I would certainly have paid, but there isn't the equivalent of that in the retail space right now. iTunes kind of feels like Sam Goody to me.

I don't feel cool when I go there. I'm tired of seeing John Mayer's face pop up. I feel like I'm being hustled when I visit there, and I don't think their product is that great. DRM, low bit rate, etc. Amazon has potential, but none of them get around the issue of pre-release leaks. And that's what's such a difficult puzzle at the moment. If your favorite band in the world has a leaked record out, do you listen to it or do you not listen to it? People on those boards, they're grateful for the person that uploaded it — they're the hero. They're not stealing it because they're going to make money off of it; they're stealing it because they love the band. I'm not saying that I think OiNK is morally correct, but I do know that it existed because it filled a void of what people want.

Trent Reznor and Saul Williams Discuss Their New Collaboration, Mourn OiNK [NY Mag]
(Photo:AdamL212)

She has some interesting thoughts about DRM vs Downloading, and we're somewhat inclined to agree with her...

TF. Do you think its legal or illegal to copy a CD or DVD?

- Some men right, they sell you a DVD at the market but when you get home it doesn't play, that's illegal.

TF. Why is it illegal?

- Duh!! Because they tell you it works and when you get it home it's rubbish and jumps in the middle and its a waste of money!

Inside the Mind of a 9 Year Old File-Sharer [TorrentFreak via Kottke]

The Forbes journalist writes, "But more surprising is that fans chose to steal music they could legally download for any price they choose," but it's not clear whether that's the analyst's opinion or the writer's. At any rate, we think it's overstating the issue. Even the analyst admits that it's not proof that Radiohead's fans are a mutinous lot of anarchists:

Garland argues that this kind of digital theft is more a matter of habit than of economics. "People don't know Radiohead's site. They do know their favorite BitTorrent site and they use it every day," he says. "It's quite simply easier for folks to get the illegal version than the legal version."

But for Doug Lichtman, an intellectual property professor at the UCLA School of Law, the volume of piracy following In Rainbows' release erodes the success of Radiohead's innovation. "If the community rejects even forward-thinking experiments like this one, real harm is done to the next generation of experimentation and change," he says.

Lichtman speculates that users may have interpreted Radiohead's offer as a giveaway and so felt more comfortable downloading the album from other free sources. Fans may also have been turned off by the band's requirement that users register by providing their name and e-mail and postal addresses.

"Free? Steal It Anyway" [Forbes via Slashdot]
(Photo: Getty)

"This is what can happen if you don't settle," RIAA attorney Richard Gabriel told reporters outside the courthouse, according to Wired. "I think we have sent a message we are willing to go to trial."

RIAA Jury Finds Minnesota Woman Liable for Piracy, Awards $222,000 [Wired Threat Level]