Is a Fair P2P Trial Possible?

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TorrentFreak wants to know if, given the results of the last two high profile file sharing cases, it is even possible to get a fair P2P trial? I have wondered the same thing myself but the other big question is this…how do regular people sitting on a jury return $80k per song judgments?

On one side, you have the defendant, who often has no resources at all, and on the other, the multi-billion dollar entertainment industry. In such cases, the law should win out, but given such a drastic mismatch, is a fair trial even possible?
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What is fair? Governments actually listening to people and representing the interests of those they tax? How much do the governments earn from tax dollars, as opposed to what the corporations pay? I suspect tax dollars will always be larger.

Why are you even putting up with this crap "America"? Why?
 
That is something I've never understood. I don't know of a living citizen in the U.S. that has not downloaded at least one sound bit or video clip from the internet at least once and yet judgments like this get doled out almost daily. It makes no sense at all unless these juries are handpicked by the RIAA and the MPAA which would make sense, at least to the RIAA and the MPAA, to guarantee a win by them. As I remember a MPAA member admitting to downloading a movie in the past.
 
More fallacies from the pirates, stop downloading and you wont get dragged to court.

*tired of old used excuses*
 
BloodyIron said:
What is fair? Governments actually listening to people and representing the interests of those they tax? How much do the governments earn from tax dollars, as opposed to what the corporations pay? I suspect tax dollars will always be larger.

Why are you even putting up with this crap "America"? Why?
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This argument is a red herring. Even if corporations did "pay" income tax, they would simply pass the cost on to the consumer, i.e. prices would rise accordingly. In other words, corporations don't pay income taxes, they collect them.

We are putting up with it because people believe that by voting they can elicit change within the system. This is not possible. The vast majority of our politicians have been co-opted by the corporations, most notably the banks.

Beyond that, the politicians only have limited power. The federal reserve runs the show - the politicians are just the figureheads.
 
spintroniX said:
This argument is a red herring. Even if corporations did "pay" income tax, they would simply pass the cost on to the consumer, i.e. prices would rise accordingly. In other words, corporations don't pay income taxes, they collect them.

We are putting up with it because people believe that by voting they can elicit change within the system. This is not possible. The vast majority of our politicians have been co-opted by the corporations, most notably the banks.

Beyond that, the politicians only have limited power. The federal reserve runs the show - the politicians are just the figureheads.
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Yes...
 
I've seen it written somewhere that this whole p2p issue is being looked at entirely the wrong way.

What the debate SHOULD be about is access to culture.

And copyright law is obviously no longer reflecting the needed change in business model on the part of many who are pirated from.

I've said it before, and I'll say it again.

Why not give everyone access? Libraries exist for books(and often carry at the very least a limited amount of other media). Why not for all media? And now that we have the advent of cloud computing, why can't we make it easily accessible to all?

Heck, I'd even sign up for a monthly fee.(Which is kinda what I do now anyway, with the fee I pay Giganews every month. Though I'll be the first to admit that it's a bit of a fallacy, as Giganews doesn't compensate anyone but themselves for all of those binaries.)

A change is needed. Money is doing the talking...for now. But I doubt things will always be thus.
 
At least I haven't heard about even one single fair case. If there were one, that would probably not be in the headlines.
 
spintroniX said:
This argument is a red herring. Even if corporations did "pay" income tax, they would simply pass the cost on to the consumer, i.e. prices would rise accordingly. In other words, corporations don't pay income taxes, they collect them.

We are putting up with it because people believe that by voting they can elicit change within the system. This is not possible. The vast majority of our politicians have been co-opted by the corporations, most notably the banks.

Beyond that, the politicians only have limited power. The federal reserve runs the show - the politicians are just the figureheads.
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Gather your pitchfork and torch... it's about that time...
 
Steve said:
I have wondered the same thing myself but the other big question is this…how do regular people sitting on a jury return $80k per song judgments?
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Because they are unthinking, unaware and unwashed. The idea that a not-for-profit action like personal filesharing can be criminalized in the eyes of a jury of peers is amazing. If the defendants had been somehow monetizing or gaining personally, then sure set a reasonable compensation for the original property owners. The punishment must scale to the offense or it's an injustice in itself.
 
There is another problem. One I experienced first hand.

The juror that said only give them the minimum per song relented to (apparently) the majority not to play nice and compromise. But to just get a vote out so they did not sit there for days on end deliberating on something. Deliberating, not working to make money and feed themselves (and their family). Jury duty pays shit. They do not have the time to stand their ground.

I was a juror in a trial where the same thing happened. People had kids to pick up because it was getting late and did not want to come back Monday (week long case), miss more work, get shit pay, and otherwise be a pain in the ass. So two people relented with the majority 'just to get out of there'.
 
What "should be" and "what is", are not the same.
Just a bunch of "ignant" people on the jury. They are not a jury of your "peers" but a jury chosen by the bigger lawyers!
 
BloodyIron said:
What is fair? Governments actually listening to people and representing the interests of those they tax? How much do the governments earn from tax dollars, as opposed to what the corporations pay? I suspect tax dollars will always be larger.

Why are you even putting up with this crap "America"? Why?
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Because the corporate juggernaut has become so firmly entrenched in our government that we're practically corporate owned.. The Republican party openly accepts it, the Democratic party ineffectually butts it's head against it for a while, then even they eventually bend over and accept it.

It doesn't help that any attempt to dislodge that system is met with false visions of socialism and all that crap. The masses seem to be convinced that taking it up the ass by corporations is some kind of holy ritual that will reward everybody with riches in heaven.

The concept of capitalism with conscience is completely alien to the current US culture.
 
The AA's own the government. Of course there is no shot at a fair trial.
 
necrosis said:
There is another problem. One I experienced first hand.

The juror that said only give them the minimum per song relented to (apparently) the majority not to play nice and compromise. But to just get a vote out so they did not sit there for days on end deliberating on something. Deliberating, not working to make money and feed themselves (and their family). Jury duty pays shit. They do not have the time to stand their ground.

I was a juror in a trial where the same thing happened. People had kids to pick up because it was getting late and did not want to come back Monday (week long case), miss more work, get shit pay, and otherwise be a pain in the ass. So two people relented with the majority 'just to get out of there'.
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QFT

If the trial system actually paid the juror's their current salary for the time they have to spend listening to a case and deliberating the verdict, we might have move people standing their ground and actually thinking about the outcome instead of "how fast can we get out of this". You also wouldn't have everybody trying to figure out ways to avoid jury duty.

Woe to anyone that finds me on a jury with an opposing viewpoint than the rest because I'm too stubborn to just "give in" to get it over with ;) I could drag out deliberations about 6 months before it became a financial concern for me.... but my views/responses have dismissed me from the last 3 times I had jury duty :(

As to the original question, nope, not a chance of a fair trial. Too much money behind the prosecution compared to the little guy. It also doesn't help that 1/2 the judges are too old to understand P2P and the other half don't want anyone taking too close of a look at what they are doing online :p
 
The question presupposes that the previous trials were unfair. Did you pay attention to the defendants? One was completely unreliable; the other admitted on the stand that he did what he was accused of. The trials were fair.

Or did you mean that the jury awards weren't fair? That's a separate issue. However, "fair" does not mean "an outcome that allows me to share as much music as I want to without fear of consequence." In both cases, the juries agreed to an amount well within the guidelines of the law -- presumably to have a deterrent effect.
 
BloodyIron said:
What is fair? Governments actually listening to people and representing the interests of those they tax? How much do the governments earn from tax dollars, as opposed to what the corporations pay? I suspect tax dollars will always be larger.

Why are you even putting up with this crap "America"? Why?
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The same reason people have put up with all sorts of crap throughout history: no-one gives enough of a shit to do anything.
 
PunditGuy said:
The question presupposes that the previous trials were unfair. Did you pay attention to the defendants? One was completely unreliable; the other admitted on the stand that he did what he was accused of. The trials were fair.

Or did you mean that the jury awards weren't fair? That's a separate issue. However, "fair" does not mean "an outcome that allows me to share as much music as I want to without fear of consequence." In both cases, the juries agreed to an amount well within the guidelines of the law -- presumably to have a deterrent effect.
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If you read the article the fair portion is explained. They are debating that it is nearly impossible to defend onself in a P2P trial because of financial cost, limits on testemony, and lack of knowledge about the jury.

Its the same as if someone was on trial for murder, but the jury didnt understand what death was. And you werent allowed to bring experts in to explain death. If the jury does not understand the subject matter it is very difficult for a trial to be fair..

Everyone undertands death and murder... very few understand how P2P works.
 
spintroniX said:
This argument is a red herring. Even if corporations did "pay" income tax, they would simply pass the cost on to the consumer, i.e. prices would rise accordingly. In other words, corporations don't pay income taxes, they collect them.

We are putting up with it because people believe that by voting they can elicit change within the system. This is not possible. The vast majority of our politicians have been co-opted by the corporations, most notably the banks.

Beyond that, the politicians only have limited power. The federal reserve runs the show - the politicians are just the figureheads.
Click to expand...

Yea, we should all do our research on the Federal Reserve & then we can all see what a big problem it is for the citizens. If we pass laws at the State level, and then return the power to the states as it should be, we'll be able to be somewhat free again. As long as the feds have the power, our country will be backwards from how it was founded.

It's supposed to be state power > Fed power.. WTF?
 
demingo said:
If you read the article the fair portion is explained. They are debating that it is nearly impossible to defend onself in a P2P trial because of financial cost, limits on testemony, and lack of knowledge about the jury.
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Read the article? This ain't /.

It's expensive to defend any civil case, so that's not an argument against the fairness of P2P trials.

Limits on testimony I can see, but it's probably too early to tell. No expert testimony in the world is going to help when you get up on the stand and admit that you did what you're accused of, and that you lied previously when you said you didn't.

The "lack of knowledge about the jury" argument is a little disingenuous. Here's from TFA:

TFA said:
That’s how you have someone who has never used a computer saying they know someone’s lying about a technologically involved subject, as happened in the first Thomas case.
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Here's what the juror in that case said:

TFA's Linked Article said:
Hegg added that the jury believed Thomas’ liability was magnified because she turned over to RIAA investigators a different hard drive than the one used to share music. "She lied," he said. "There was no defense. Her defense sucked."
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You don't have to be a computer user to draw that conclusion.
 
PunditGuy said:
Read the article? This ain't /.

It's expensive to defend any civil case, so that's not an argument against the fairness of P2P trials.

Limits on testimony I can see, but it's probably too early to tell. No expert testimony in the world is going to help when you get up on the stand and admit that you did what you're accused of, and that you lied previously when you said you didn't.

The "lack of knowledge about the jury" argument is a little disingenuous. Here's from TFA:



Here's what the juror in that case said:



You don't have to be a computer user to draw that conclusion.
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She had stated early on she had her PC repaired and didn't have the original drive. I don't know about you, but I don't hang onto all my HDDs because I think they might become evidence someday.....

Also if you're going to quote the article, dont leave parts out like this...

Hegg, a married father of two who said he formerly raced snowmobiles, said he has never been on the internet
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So someone who has never used the internet, has no idea how the internet works, is able to judge on this case?

He said the RIAA established that Kazaa existed for the sole purpose of file sharing. Also, a screen shot repeatedly displayed to jurors during the three-day case showed that more than 2 million people were on Kazaa sharing hundreds of millions of songs on Feb. 21, 2005, the night RIAA investigators from Safenet locked on to Thomas’ share folder.
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This is a rediculous statement from the same man. Kazaa does exist to share files, but that does not mean it only shares illegal files. Thats like saying you are black and were in the ghetto on a Friday night means you're a drug dealer. It's these kinds of blanket statements, which fool people without technical knowledge, that make P2P trials unfair. Also the fact that Kazaa users were sharing songs doesn't mean Thomas was. Guilty or not (which she probably is) you can easily see how foolish this jurror was. He has absoltely no idea what he is talking about, probably doesnt comprehend networking, and just wanted to get the hell outa there.

Finally, the biggest insult in this case is that it was not a jury of her peers. A jury of her peers would be people who have experience with computers if not P2P users in general. There is no way this case should have stuck. In the end it comes down to one side having the money to prosecute and the defense not being able to fund itself.

I dont know about you, but guilty or not, i dont want to live in a society where money decides your innocence (which is already true to a large extent).
 
demingo said:
She had stated early on she had her PC repaired and didn't have the original drive. I don't know about you, but I don't hang onto all my HDDs because I think they might become evidence someday.....
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You really don't want to hang a truth hat on this woman.

ars said:
Two weeks after MediaSentry noted the infringement of "tereastarr@KaZaA" (and notified the user via KaZaA instant message that he or she had been caught sharing files) back in February 2005, Thomas-Rasset hauled her Compaq Presario down to the local Best Buy. There was a problem with the hard drive, so Best Buy replaced it under warranty.

That might sound like no big deal until you realize that Thomas-Rasset later provided this new hard drive—and not the one in the machine during the alleged February infringement—to investigators and to her own expert witness. It becomes an even bigger deal when you realize that she swore under oath—twice—that she had replaced the hard drive in 2004 (a full year earlier) and that it had not been changed again since.
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When you're served, you're under an obligation to preserve evidence. Having the hard drive replaced after being informed of the lawsuit is a huge no-no. So yes, she needed to hang on to that hard drive.

demingo said:
So someone who has never used the internet, has no idea how the internet works, is able to judge on this case?
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He's perfectly capable of deciding whether the defendant is credible or not, or whether the plaintiffs have produced a case that hasn't been adequately rebuffed by the defense.

demingo said:
Also the fact that Kazaa users were sharing songs doesn't mean Thomas was.
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Are you familiar with the case at all? The more you talk, the less I think you were actually following it.

The plaintiffs created a connect-the-dots puzzle for the jury.

  • Dot 1: Kazaa users share files, including copyrighted ones.
  • Dot 2: A Kazaa account, linked to Thomas' computer (via the MAC addresses of both her Ethernet card and her cable modem) and with a username that Thomas has been using for years, was sharing copyrighted music that night.
  • Dot 3: Thomas violated copyrights.

Like it or not, this wasn't adequately rebuffed by the defense. Maybe you should have been on the defense team.

demingo said:
Finally, the biggest insult in this case is that it was not a jury of her peers. A jury of her peers would be people who have experience with computers if not P2P users in general.
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I don't need to know the ins and outs of alarm systems to be a juror on a breaking-and-entering case. Actually, that's criminal -- let's try something civil. I don't need to know the intricacies of contract law in order to be a juror on a contract dispute case. I don't need to know how journalists work in order to be a juror on a libel case. You've got an interesting view of our civil law system, but it's not one based on reality.
 
PunditGuy said:
I don't need to know the ins and outs of alarm systems to be a juror on a breaking-and-entering case. Actually, that's criminal -- let's try something civil. I don't need to know the intricacies of contract law in order to be a juror on a contract dispute case. I don't need to know how journalists work in order to be a juror on a libel case. You've got an interesting view of our civil law system, but it's not one based on reality.
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but you ought to know what burglary is and what a contract is...
of course you don't need to know the intricacies of it but you should have some reasonable understanding of what it is.
having absolutely 0 knowledge on a subject in my mind means that you are not fit to make a judgment on it.
 
ripken204 said:
but you ought to know what burglary is and what a contract is...
of course you don't need to know the intricacies of it but you should have some reasonable understanding of what it is.
having absolutely 0 knowledge on a subject in my mind means that you are not fit to make a judgment on it.
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Plaintiffs and defendants both bring information to juries to bring them up to speed. People cannot be experts (or even experienced) in everything. Both sides lay out their arguments; one side wins on the merits. What I've been trying to tell you guys is that the merits in the two cases decided so far were objectively not in the defendants' favor, and that's true regardless of the relative level of knowledge each juror brought to the table.

Besides, both you and demingo are assuming that a lack of knowledge about P2P is somehow injurious to Thomas' case. Why? If the jurors had all been P2P users, what would that have gained her?
 
PunditGuy said:
If the jurors had all been P2P users, what would that have gained her?
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Precisely they're looking for sympathy instead of justice. They're asking for a jury of drug dealers in a narcotics trial. Laws were broken, the technology behind it makes no difference. I have extensive computer knowledge and fully understand how P2P works, had I been on the jury I would have given the same punishment.
 
It's not possible because people who share files over the internet have ruined so many lives. Like... um... hold on a second... um... the people who share files over the internet? Wait, does that even make sense?
 
i still would have voted guilt but chosen a reasonable fine.
the only thing im against is only allowing jurors who have no idea what P2P is and having the RIAA brainwash them into one way of thinking about it.
 
I think the article had a lot of flawed logic. The only thing that I agreed on is that having resources makes defending or prosecuting easier but doesn't necessarily mean the difference between a fair trial or not. Should the state dumb down the prosecutions team and evidence gathering capability to go up against a public defender to make things fair? I don't think so.

What were the reasons the judge rejected the defences expert witness? A judge cannot arbitrarily do that.

The area of Dr. Pouwelse expertise lies in his study of Bittorrents and in this case specifically Kazaa and MediaSentry. I read the paper that he published, I don't think he could have offered any help to the defence except to talk about "pollution" on Kazaa and that the copyright material that was uploaded may or may not have been easy to get to. The Judge may have been right in rejecting his expertise as it had no bearing here as Tenenbaum admitted he uploaded the copyright material in question anyway. Dr Pouwelse could offer no direct evidence of actual downloads for the prosecution or the defence.

Interestingly in his study, 1 of the files in his study with copyrighted material was downlaoded 90,000 times (wow!) between 2003-2004.
 
PunditGuy said:
You really don't want to hang a truth hat on this woman.



When you're served, you're under an obligation to preserve evidence. Having the hard drive replaced after being informed of the lawsuit is a huge no-no. So yes, she needed to hang on to that hard drive.



He's perfectly capable of deciding whether the defendant is credible or not, or whether the plaintiffs have produced a case that hasn't been adequately rebuffed by the defense.



Are you familiar with the case at all? The more you talk, the less I think you were actually following it.

The plaintiffs created a connect-the-dots puzzle for the jury.

  • Dot 1: Kazaa users share files, including copyrighted ones.
  • Dot 2: A Kazaa account, linked to Thomas' computer (via the MAC addresses of both her Ethernet card and her cable modem) and with a username that Thomas has been using for years, was sharing copyrighted music that night.
  • Dot 3: Thomas violated copyrights.

Like it or not, this wasn't adequately rebuffed by the defense. Maybe you should have been on the defense team.



I don't need to know the ins and outs of alarm systems to be a juror on a breaking-and-entering case. Actually, that's criminal -- let's try something civil. I don't need to know the intricacies of contract law in order to be a juror on a contract dispute case. I don't need to know how journalists work in order to be a juror on a libel case. You've got an interesting view of our civil law system, but it's not one based on reality.
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I'm not very familiar with the case... but what you quoted doesn't show that she was served. It says she was instant messaged over Kazaa. Was she actually served and then destroyed the HD?
 
rpkelly said:
I'm not very familiar with the case... but what you quoted doesn't show that she was served. It says she was instant messaged over Kazaa. Was she actually served and then destroyed the HD?
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I am 100% wrong on that. I apologize. Her hard drive story is complicated, but you can plaster "Reading Comprehension Fail" on my post.
 
PunditGuy said:
Besides, both you and demingo are assuming that a lack of knowledge about P2P is somehow injurious to Thomas' case. Why? If the jurors had all been P2P users, what would that have gained her?
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It did injure her case. Just look at what you posed.

The plaintiffs created a connect-the-dots puzzle for the jury.

Dot 1: Kazaa users share files, including copyrighted ones.
Dot 2: A Kazaa account, linked to Thomas' computer (via the MAC addresses of both her Ethernet card and her cable modem) and with a username that Thomas has been using for years, was sharing copyrighted music that night.
Dot 3: Thomas violated copyrights.
Click to expand...

Dot 1: People drive cars, sometimes over the speedlimit
Dot 2: Someone driving my car was speeding a certain night
Dot 3: I was speeding.

The problem lies in the fact, that there is no connect between 2 and 3 that cannot be proven beyond reasonable doubt. The fact that it was my car, does not nessicarly prove I was driving it. It only proves I might have been,. What if my car was stolen? What if someone borrowed my car and was driving it? Those concepts would be easy for a Jury to understand. Remember, no one caught Thomas downloading anything illegal, they caught her computer.

Now, to a juror who has no knowledge of the internet or how it works, it might seem cut and dry, but thats where the problem of a fair P2P trial arises. Her defense was poor, but I also believe the RIAA made overly simplistic assumptions that the jury bought because they don't understand P2P.

Was her PC hijacked by a remote user who was using it as a proxy? Did someone else in the house use the PC to download the music? The biggest issue in these cases is not proving what PC the RIAA traced it too, but who commited the act. I do not think a Jury with proper knowledge of internet and P2P, who was dedicated to the case and didn't just want to get out of there, would have been certain it was Thomas at the keyboard at the point of infringement.
 
bonsai said:
Precisely they're looking for sympathy instead of justice. They're asking for a jury of drug dealers in a narcotics trial. Laws were broken, the technology behind it makes no difference. I have extensive computer knowledge and fully understand how P2P works, had I been on the jury I would have given the same punishment.
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I'm not asking for a jury of "drug dealers". I'm asking for a jury who knows what drugs are. You make the irgnorant assumption that P2P users are always copyright violators, which is untrue.

I simply want a jury that understands the case at hand.
 
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