Saturday, November 10, 2007

Little Eddy Blog #10 The R.I.A.A. and the Rico Racketeering Law

This week’s blog is devoted to p2p, Jammie Thomas, and to all past, present, and future victims of a so-called music industry out of control. Every fall the R.I.A.A. sends out a round of letters to American universities complaining that certain of their students had illegally downloaded copyrighted material using their (the college’s) network. The R.I.A.A. demands that the University identify the students attached to the illegal activities, and when the information is offered it threatens the students with expensive lawsuits unless the students pay outrageous amounts of money to the R.I.A.A. By any stretch of imagination this is pure unadulterated extortion. However, because of vague wording in the Digital Copyright act and the fact that the R.I.A.A. is acting on behalf of the legal copyright owners, the record companies, this out and out arrogant and to my mind highly illegal behavior works in most cases. Only a handful of people are resisting this arrogant example of legal blackmail.
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There follows a p2pnet news special: “RIAA News:- Through their RIAA (Recording Industry Association of America), BPI (British Phonographic Industry), IFPI (International Federation of Phonographic Industry), CRIA (Canadian Recording Industry Association) and all the other so-called trade organisations strategically sited in major cities around the world, the members of the Big 4 organised music cartel are running a hugely expensive international disinformation campaign (a charitable description) designed to show they’re being “devastated” (their word) by their own customers, whom they’re calling criminals and thieves, even though no crime has been committed and nothing has been stolen.

These people are massive online illegal distributors of copyrighted music causing record industry support workers to be thrown onto the streets, out of work, and who are costing the labels billions of dollars in lost profits, say Vivendi Universal (France), Sony BMG (Japan and Germany), EMI (Britain), and Warner Music (US).

In America, an estimated 30,000 people, some of them very young children, had been subpoenaed by the RIAA, accused of being file sharing criminals. It’s, “no secret that the Recording Industry Association of America (RIAA) has responded to the growth of online file sharing with a wave of copyright infringement litigation,” wrote James Alonso, Marc Friedenberg, Michael Nguyen, Shawn Oakley and Sarah Calvert from The Columbia Science & Technology Law Review. “Often, the individuals targeted by the RIAA fear the overwhelming costs of defending themselves in court, and many have agreed to pay large settlements.”

Often, but not always. Now, inspired by the examples of people such as the five very reluctant heroines mentioned below, increasing numbers of victims are deciding not to let themselves be terrorised into settling. The five, courageous in every sense of the word, are:
* Patti Santangelo, a New York mother of five children, two of whom have now become RIAA targets
* Rae-Jay Schwartz, another mother, bound to a wheelchair by multiple sclerosis, the terrible central nervous system disease
* Marie Lindor, a 57-year-old home health aid whose knowledge of computers and computer systems is zero
* Tanya Andersen, a disabled mother living off a disability pension
* Jammie Thomas, a young mother of two from Minnesota

But it’s Thomas, the first of the American RIAA victims to actually appear in court, who’s caught the attention of the international mainstream media for more than just a day or two. Horrified by the negative (for them) PR the case has been generating, using their connections, political power and influence, the labels are doing their best to distort facts and spin Thomas as a cold schemer whose depredations forced the RIAA to take her to court.

Cary Sherman, the organisation’s chief spin doctor, said he was “surprised it took this long for one of the industry lawsuits to go to trial” when in fact, the organisation has done everything it can to stop any of these cases actually reaching a judge and jury.

Thomas has also achieved two other firsts: As far as I know, she’s the first to launch her own forum, and for the first time since she was forced into the limelight, she’s telling her own story, in her own words.” Jon Newton - p2pnet

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My Story By Jammie Thomas

A lot of misinformation has been printed concerning my case, my family, my living situation, and me personally. I welcome this opportunity to set the record straight. As most already know, I was sued by RIAA (actually by some of the individual recording labels that make up the RIAA) and I lost.

First, I want to tell you all about me before we dissect my case and what went wrong.

‘I never wanted this much notoriety, ever’

I am a single mother of 2 beautiful boys; Tyler who is 13 and Triston, who is 11. These two are my life and they’re the reason why I do anything. It is also because of these two I decided to fight back against the RIAA. After I received the various letters from both my ISP and the RIAA, I made up my mind I was not going to be bullied into paying for something I didn’t do. My father always taught me to stand up and fight for what I believe in and I figured what better way to teach my boys this same lesson but through example.

My family have been my most staunch supporters through this entire situation. My parents even helped me secure a loan for the retainer money for my attorney when this first started. All of my family wanted to be at the courthouse during the trial, but after I saw the news articles that happened the day before the trial started, I asked them to stay away, to try and shield them from what I was about to go through.

After I was contacted by the RIAA, I started researching these cases hoping to find answers to why this was happening and what I could do to stop it. I came across websites that would become one some of the biggest assistant in my own case. These sites are Recording Industry vs. The People, a blog written by an attorney, Mr. Ray Beckerman, who handles similar cases in New York, and It is also because of Mr. Beckerman I was able to find Mr. Brian Toder, my attorney in Minnesota.

Mr. Beckerman’s site chronicles cases of everyday people being sued by the RIAA and a lot of these cases are very similar to mine. The first case I read about was Patty Santangelo. She is also a single mother who decided to fight back. Recently, she had her case dismissed with prejudice, granting her the victor and now eligible for her attorney’s fees and court costs.

I’m very excited for her.

Another case I learned of was Tanya Anderson. Ms. Anderson is also a single mother who decided she was not going to be bullied into paying for something she didn’t do. And Ms. Anderson recently won her case against the RIAA just as Ms. Santangelo did. I would love to suggest a pattern is emerging - 3 cases of single moms refusing to pay the RIAA. But considering over 26,000 people received what the RIAA calls ‘pre-suit settlement letters’, I find it highly unlikely all of those are single parents.

After reading about these cases and others more dire than mine, including the suit against a woman with multiple sclerosis who has never even used a computer, many cases against teens and pre-teens, even a case against a deceased elderly woman, I became rather enraged. My initial reaction was how dare they? I also thought how could they get away with this type of extortion here, in America? The more I read, the more sick and disgusted I became. I knew after this I would not ever settle, no matter how bad my situation became.

I never dreamt my case would actually make it to court. I figured the RIAA had run from every case that was even close to going before a jury and they would do the same thing with my case. Yeah, I was wrong. My attorney kept warning me all along I might be the first case to ever go to court, but I was naïve and didn’t want to see the bigger picture. A cold splash of reality wakes anyone up and the judgment against me was that splash I seemed to need.

I also never dreamt how large of a story my case would become. Before I went to court, no one except those close to me knew of this situation I was dealing with. Now, I can Google my name and read articles about me. A very odd and surreal feeling for me as I never wanted this much notoriety, ever. Unfortunately, a lot of the articles I’ve read are full of half-truths, conjectures, and right out lies. I can understand media outlets having a deadline to meet, but I cannot understand media outlets filling the holes in their stories with incorrect information.

‘Best Buy made the decision to replace the hard drive’

I would like to now talk about some of that incorrect information which has plagued news articles and comments. First, I will finally set straight the issue with my computer hard drive, when it was replaced, why it was replaced, who replaced it and what might have happened to the old drive. 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 wouldn’t be the first time I was off by a year on my dates.

During my deposition, I was off by one year on the date I purchased my computer (I said early spring 2003 when it was early spring 2004), the date my hard drive was replaced (I said 2004 when it was 2005) and when I finished ripping all the music to my computer (I said the fall of 2005 when it was the fall of 2006) to only name a few. I was basing everything off my memory, without taking into consideration as stressed as I was, my memory wasn’t what I thought it was. I have learned a hard lesson as the jury was not able to see my deposition transcript. I now know to check and double check everything and if I haven’t, my answer will be ‘I don’t know.’

Another rumor I would like to put to rest is the question why didn’t I buy the music since it is offered for less than a dollar per song on sites like I-tunes? To be completely honest with you, I already own those songs they accused me of ‘making available’ on KaZaa. I own over 240 CDs I have purchased throughout my life, most while I worked at Best Buy when I was in college. Their employee discount is amazing!

Anyway, on these CDs are almost 3,000 songs, which in turn are on my computer right now. I have purchased additional songs from So in total, I own roughly 3,000 individual songs, all legally purchased.

‘I can look back now and see many things I could have or should have done differently’

Now on to my defense during the trial. A lot of people have said I should not have used a ’spoofing’ defense, especially without an expert to testify and give the details.

First, I did not use a ’spoofing’ defense. That term was not even mentioned during my trial until after the judge himself asked one of the witnesses what spoofing was. I never presented a defense someone spoofed my information. My defense was based around the facts an IP address does not identify a person, there was no trace of KaZaa or any peer to peer software on any computer I owned, not a single witness could testify they could identify who was online making song files available, there was no witness who could testify they ever saw me use or talk about any peer to peer software, and there was not a single person who could identify me as the person caught on February 21, 2005 sharing files through KaZaa. Yes, my attorney mentioned certain computer terms during the trial, but I have no idea what any of those terms are.

Second, I did have an expert. This expert did inspect my computer and was going to testify for me at trial. That was originally the plan, until I couldn’t come up with the money for my expert during the trial. Another thing most people don’t know is the defendant is responsible for paying expert witnesses their hourly rate during the trial and providing for their food and board while at the trial. My attorney was able to secure that expert witness at a very reasonable rate, but I wasn’t able to afford this rate during the entire trial.

As for what’s next, my attorney filed a motion to have the verdict thrown out or to have the judgment reduced based on the constitutionality of the judgment. This is not an appeal, this is a post trial motion. We are currently waiting for the plaintiffs to file their response to our motion. The judge will not make a decision on that motion until after the plaintiffs have filed. The timeline for appeals is we have 30 days after the judge decides all post trial motions before we file any appeals. The legal aspects of this case are questions for my attorney and I will always refer those kinds of questions to him. I do know personally I cannot allow my case to end this way, with this judgment. My case will be used as a sledgehammer by the RIAA to force other people caught in the RIAA’s driftnets to settle, even if they are or are not guilty of illegally sharing music online.

Considering hindsight is always 20/20, I can look back now and see many things I could have or should have done differently. I could have settled before I was even sued. I could have settled many times before the case went to trial. I could have worked harder to find a way to afford the things I needed at trial. But I refuse to live life regretting could haves or would have or should haves.

The one piece of advice I can give to anyone who finds themselves being sued or threatened to be sued by the RIAA is to fight back.

The more people fight back against these cases, the more expensive it will be for the RIAA to bring these suits and the less resources the RIAA will have to use against others.

I was found liable of copyright infringement without the plaintiffs having to prove I downloaded anything, without having to prove I was aware of any file sharing taking place on my computer or within my home, without having to prove I owned a copy of KaZaa, without having to prove any files were shared with anyone from my computer and without having to prove who was on the computer the night of February 21, 2005.

This doesn’t seem fair and it’s what keeps me going in my fight.

Jammie Thomas
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You can visit the above URL to read reactions of Ms. Thomas’ statement, and if you like, make a contribution to her cause. In the meantime you can bet your bippies that the entire music community as well as the recording industry is keeping their eyes peeled on the British band Radiohead’s recent release of their latest album “In Rainbows.” vs. Radiohead

RESTON, VA, November 5, 2007 – comScore, Inc. (NASDAQ: SCOR), a leader in measuring the digital world, today released a study of online sales of “In Rainbows,” a new record album from the band Radiohead. The album’s release has challenged the music industry’s traditional distribution and sales model by allowing consumers to determine the price they are willing to pay for the album, which consumers are able to download at the band’s official site for the album ( Consumers could also choose to purchase the Discbox, which includes a vinyl album, bonus CD, and assortment of other trinkets, at the site for a set price of approximately $80 U.S. The results of the study are based on data obtained from comScore’s worldwide database of 2 million people who have provided comScore with explicit permission to monitor their online behavior.

Approximately 2 out of 5 Downloaders Willing to Pay

During the first 29 days of October, 1.2 million people worldwide visited the “In Rainbows” site, with a significant percentage of visitors ultimately downloading the album. The study showed that 38 percent of global downloaders of the album willingly paid to do so, with the remaining 62 percent choosing to pay nothing. The percent downloading for free in the U.S. (60 percent) is only marginally lower than in the rest of the world (64 percent).

“The high percentage of users actually paying more than a few dollars for this download is actually pretty impressive,” said Jim Larrison, general manager of corporate development at Adify, a provider of online ad network services. “I expected the vast majority of users to download the album for free or at most a few dollars. With 40 percent of consumers willing to pony up real money, this is a true win for the music industry as it shows there is still perceived value in the digital form of entertainment. Of course it does suggest that the marketplace is continuing to migrate and the music industry needs to shift with consumer behavior. There are numerous methods to monetize the music, via shows and concerts, merchandising and box sets, commercial licensing, and even advertising; which is where the industry needs to progress towards, as the 40 percent paying for music might not be sustainable.”

“It is important to note that Radiohead has single-handedly accomplished a milestone that the recording industry has failed to achieve – they’ve eliminated much of the profit attrition related to piracy or illegal copying,” said Edward Hunter, comScore analyst and part-time songwriter. “Moreover, they have garnered good faith with the music consumer at a time when it’s all the rage to bash the industry and the artists who ally themselves with it. And then you have the reduction in cost of sale, cost of promotion and production. I’d call this a resounding success for Radiohead and music fans everywhere – and a fantastic artistic effort as well.”

Radiohead stuck up for its fans on Friday. The rock band denied that 62 percent of those who downloaded the group's new album paid nothing for the music.

Last month, Radiohead announced that it was releasing a digital version of the album for whatever fans wanted to pay. Internet research group, ComScore, on Monday released a report that said only 38 percent paid anything for In Rainbows. In a statement, Radiohead's representatives called ComScore's report "wholly inaccurate."

Radiohead's pay-what-you-want offer is groundbreaking and is being watched closely by fans, music labels and other bands. How it fares could influence whether other acts try and sell their own music via the Web – without the support of the labels.

Andrew Lipsman, a ComScore senior analyst, didn't back down. In a blog posted to the company's site on Thursday, Lipsman said that he was "very confident" in the data. ComScore derived its numbers by watching the Internet behavior of nearly 1,000 people. Several hundred among this group downloaded Radiohead's album. In the blog, Lipsman said that when it comes to statistics, this is considered a large sample. "We observed the actual online spending behavior from a robust sample of hundreds of individuals in order to produce an accurate estimate," Lipsman said in his post. "If we didn't have a reasonable sample from which to extrapolate, we wouldn't have released the data."

But in their statement, Radiohead's handlers said that ComScore's study "in no way reflected definitive market intelligence or, indeed, the true success of the project."

Radiohead has declined to reveal any sales figures.
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Sometimes it is more important to listen to other voices than to expound yourself, and for that reason I have turned this week’s blog over to Jammie Thomas and and to vs. Radiohead. Something needs to happen to change the course of the so-called music industry before they make criminals out of us all. The real criminal here is an R.I.A.A. whose only success has been in blackmailing p2p users threatening them with legal action and this has not curbed p2p downloading one iota. Somehow the R.I.A.A. needs to be stopped. A resounding kick in the ass for its spokesman Cary Sherman would make a good start. Any volunteers? Good luck, world.

The Real Little Eddy

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