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If You Had the Opportunity to Steal, And Someone Stole, Are You Guilty?

Posted by Bob Warfield on September 25, 2008

That’s essentially the case the RIAA brought against Jammie Thomas.  Because she listed 24 copyrighted titles on a peer-to-peer network, and because the judge issued an order to the jury that they did not need any proof that anyone downloaded those titles, she lost her original trial to the tune of a $222,000 penalty.

Interestingly, the same Judge Davis who presided went back and reviewed the case again and has declared a mistrial.  As Wired points out, this means the RIAA has never yet won a case in its 5 year campaign.  Davis became uneasy about that directive to ignore whether the theft had occured, calling it a “manifest error of law.”

Was justice served?

On the one hand, clearly music has been stolen using these peer to peer networks.  There can be no doubt.  On the other hand, it feels to me an awful lot like what I said.  Jammie had the opportunity to steal, we know things were stolen, we have no specific proof she did steal (i.e. no proof anyone downloaded her titles), but in the original trial she was “convicted.”

I recognize this is a Civil and not a Criminal case, yet it still seems wrong under our system to convict on that basis.  The RIAA argues its impossible to tell with these systems how exactly the theft is going down, but that does not seem to me a reason to waive the rights of the defendant. 

My view of our system has always been that we adopted a fundamental principle that it is better for many guilty men to go free than it is to convict a single innocent.  The system is intentionally designed to overwhelmingly favor the defendant, even though it means many of the guilty go free.  That’s okay, because we’re a nation that favors individual rights.  The Home of the Free.

There are many areas of our legal system that have escaped this simple principle.  Patent litigation egregiously favors the plaintiff.  When I was involved with a recent Patent Troll case, I was told by our counsel that it would cost us $1M to get to the first court room appearance if we fought it.  I asked what it would cost the plaintiff and was told, “about $150K.”  There is an asymmetry for you!

Counsel went on to advise us that proving a patent was invalid, whether because it was overly broad or that there was prior art, was prohibitively expensive.  They estimated the defendant could spend upwards of $4 million on that task and still might not be successful.  Because of that, their counsel was that to fight a patent at all would generally require one to demonstrate that what they were doing did not infringe the patent in any way as it was drafted.  That’s nearly impossible too with the junk patents that are out there these days. 

So the trolls get paid.  There are public companies that make their business on nothing but this sort of practice.  It has gotten so lucrative that individuals once engaged in creating intellectual property are increasingly being lured into the business.  Nathan Myhrvold’s Intellectual Ventures owns 20,000 patents and has so far returned over a billion dollars to investors.

This sort of thing is much more damaging to innovation and IP rights than anything the RIAA is up to.

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If you agree with the sentiment here, be sure your representatives in Washington know that you DO NOT supoort the Enforcement of Intellectual Property Rights Act of 2008 (EIPRA).  That ridiculous piece of proposed legislation would force the DOJ to sue both criminally and civally against private individuals on behalf of the RIAA and others, and then give the proceeds to the RIAA and others.  In short, it makes the DOJ a pro bono lawyer paid for by you the taxpayer to act against you the taxpayer.  Ars Technica has more on this.

ReadWrite Web on the matter.

Mathew Ingram notes that the judge also implores Congress to reduce what he sees as egregious penalties.  He sees a $200K plus penalty as out of line with sharing just 24 titles.

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