Judge Hints at Mistrial in RIAA v. Jammie Thomas

The federal judge who presided over the nation's only peer-to-peer copyright-infringement trial announced from the bench here Monday that he is likely to declare a mistrial.

"Certainly, I have sent a signal to both sides of where I'm headed," U.S. District Judge Michael Davis said during a 70-minute hearing in which lawyers for the Recording Industry Association of America and defendant Jammie Thomas sparred over whether a jury verdict against Thomas should be overturned.
At issue is whether the RIAA needs to prove that copyrighted music offered by a defendant on a peer-to-peer network was actually downloaded by anyone. During Thomas' trial last October, Davis, on the RIAA's recommendation, instructed (.pdf) the jury that no such proof was necessary; if Thomas had the music in her Kazaa shared folder, where it could be downloaded, she could be found liable "regardless of whether actual distribution has been shown."

But in May, long after Thomas had lost the trial and was dinged $222,000, Davis developed second thoughts. He wrote in an order that he may have committed a "manifest error" with that instruction. "I think I surprised everyone," Davis said at the outset of the Monday's hearing. As the hearing wrapped up, there was little evidence that the RIAA's lawyer had changed the judge's mind.

Judge Hints at Mistrial in RIAA v. Jammie Thomas

At this point I will pause to pat myself on the back. I was asking this very question about "availability" being the same as distribution about three years ago. As I've said before, it will be a painful lesson for the RIAA/MPAA goon squad to learn. There's no winning when one tries to pull the wool over the collective eyes of Judges accross the country. The manner in which they slid in the jury instructions regarding availability was underhanded and surely didn't go unnoticed.

RIAA Suing Homeless man!

Our friends at the RIAA have been tossed out of court in case where the presiding judge described their lawyers as sloppy, but not intentionally misleading.

The dispute arose when they tried to serve a homeless man by attaching service in "a conspicuous place" at known bogus addresses. The freakin' guy was homeless! Of course this whole scenario shouldn't shock anyone who is familiar with the over the top behavior of the RIAA goon squad.

Recording Industry vs. The People

Federal Judge Questions Validity of RIAA Arguments

Atlantic Records, et al., brought suit against Christopher Brennan just over a year ago. Brennan failed to respond to the complaint, never appearing in court to answer the copyright infringement charges. After an entry of default was entered on August 6, 2007, the RIAA moved the court for a default judgment, which Judge Janet Bond Arterton denied in a ruling earlier this month.

In order to obtain a default judgment, three factors have to be satisfied. First, the default needs to be willful. In so many words, the default has to arise out of the inexcusable neglect of the defendant. Second, there cannot be a "meritorious defense" available to the defendant—a defense that is sufficient, "even if not 'ultimately persuasive.'" Last, the plaintiffs need to be prejudiced if the default is not granted.

The judge had harsh words for the RIAA's argument that making files available on KaZaA equates to copyright infringement. "At least one aspect of Plaintiffs’' distribution claim is problematic, however, namely the allegation of infringement based on 'making the Copyrighted Recordings available for distribution to others."

RIAA fails again to get default judgment in uncontested case

The RIAA has once again been admonished in Federal court for trying to present vague "evidence" to support their claims of infringement. The judge in this case also left the door open to once again leave questions about the constitutionality of the excessive awards demanded in these cases while offering no proof of actual damages. It's not an unreasonable request to have the plaintiff in any litigation to prove the damages actually incurred. The mere act of "making available" as opposed to actual distribution of copyrighted files has been the lynchpin of the RIAA arguments in many cases. It's refreshing to have yet another judge in the federal court system question the merits of this ridiculous argument. If one thinks about it logically, how can you ask for a judgement well in excess of any real damages when you offer no proof the actual act of sharing ever occurred?

The judge in this case also admonished the RIAA for using a "boilerplate" complaint that was vague in it's details. The RIAA afterward, said they would be filing a brief to further clarify their position as they had done in other cases. This legal maneuver is an attempt by RIAA attorneys to give as little information as possible to the court in the hopes that they will get a judgement without ever presenting their flimsy evidence for further scrutiny. One would think that the courts will tire of this shady practice and continue to dismiss their claims as unsubstantiated. It would also be prudent for the court to deny acceptance of any brief filed after the fact. Watch closely to this case as it appears that it may end in another defeat for the RIAA and bring us one step closer to the end of these ridiculous lawsuits and awards.

U.S. Court Wields the Censorship Hammer on Wikileaks

Wikileaks, a website that has brought to light many scandalous acts by giving whistleblowers a forum to expose wrong doing anonomously, has been ordered by US District Judge Jeffrey White of the Northern District of California to display blank pages and goes even further by barring them from redirecting traffic to offshore servers. It also bars them from transfering ownership of the domain name wikileaks.org. Once again, a Bush appointed judge has over-extended the government's conrtrol over our essential freedoms. If ever there were any doubt about our Constitution being under attack, this would be a shining example.

Wikileaks was founded in 2006 by people from a host of countries, including the US, Taiwan, Europe, Australia and South Africa. It has generated headlines by hosting documents exposing several high-profile scandals, including those related to the collapse of the UK's Northern Rock bank and to prisons in Iraq and and Guantanamo Bay. The site says it has posted more than 1.2 million documents.

In the case in dispute, Wikileaks claimed a bank located in the Cayman Islands engaged in money laundering and tax evasion. The latest agreement came in a lawsuit brought by Bank Julius Baer, the parent company of the accused Cayman bank. After trying unsuccessfully to get Wikileaks to remove the documents, Swiss-based Julius Baer went after Dynadot, the California web hosting company, which according to this copy of the court order, agreed to roll over in exchange for the suit against it being dismissed. Dynadot also agreed to turn over records related to Wikileaks, including "IP addresses and associated data used by any person, other than Dynadot, who accessed the account for the domain name". Wikileaks claims that it is an "uncensorable Wikipedia for untraceable mass document leaking and analysis". But this is true only if its webhosts can be trusted not to pull the plug on its customers or divulge sensitive client information.

Wikileaks lawyers were given only a few hours notice of this latest hearing, and amazingly the judge allowed the hearing to proceed and issued the injunction without hearing any counter-claim from Wikileaks lawyers. One would hope that this type of shotgun injunction will be overturned on appeal based on the patent unfairness of the proceedings. It would also appear that the court is engaging in what amounts to Government sanctioned censorship. It all is a fascinating story to follow.

Wikileaks has also been banned in China and Thailand. Apparently they have pissed off many rich and powerful people around the world. It will be interesting how this plays out in the U.S. courts, as I'm sure this is only round number one. Stay tuned for more on this one.....

Wikileaks.org under injunction - Wikileaks
(you may get a certificate error from this link, but it is safe to follow)

This is the main site: (hosted outside of the U.S. of course)

https://wikileaks.be/wiki/Wikileaks
(you may get a certificate error from this link, but it is safe to follow)