It's been a roller-coaster of a legal ride for Jammie Thomas, who was found guilty of copyright infringement for sharing 24 songs through KaZaA, a P2P file sharing application. After the dust settled, Thomas was ordered to pay $1.92 million in damages, an amount levied against her in a retrial of the case and much higher than the original $220,000 verdict she received in the original case.
In a motion filed today with the Minnesota federal court, Thomas called the verdict "excessive, shocking, and monstrous." As such, Thomas wants the federal judge overseeing her lawsuit to either toss out the exorbitant damage award, reduce it, or issue her a retrial.
"For 24 songs, available for $1.29 on iTunes, the jury assessed statutory damages of $80,000 per song -- a ratio of 1:62,015," the motion states. "For 24 albums, available for no more than $15 at the store, the jury assessed statutory damages of $80,000 per album, a ratio of 1:5,333. For a single mother's noncommercial use of KaZaA, and upon neither finding nor evidence of actual injury to the plaintiffs, the judgment fines Jammie Thomas $1.92 million. Such a judgment is grossly excessive and, therefore, subject to remittitur as a matter of federal common law."
The record labels also filed a motion today, one which asks the judge to issue a permanent injunction against future copyright infringement. Because, you know, a $1.92 million fine apparently isn't enough of a deterrent.
Should Thomas be issued a retrial or have her fines reduced? Hit the jump and sound off.
After ruling that the judge overseeing The Pirate Bay trial earlier this year was not biased despite his affiliation with various copyright organizations, a Swedish court voted unanimously to deny the defendants a retrial. They will now have to hope for an appeal.
"The Court of Appeal has come to the conclusion that none of the circumstances set out, individually or taken together, means that there are legitimate doubts about the judge's impartiality in this case. There has not been any bias," the court stated.
Each of the four defendants in The Pirate Bay trial were found guilty of assisting copyright infringement and sentenced to one year in prison along with $3.6 million in fines to be split among the founders. But the verdict and sentence weren't without controversy, as it was later learned that Judge Thomas Norström is a member of the same copyright protection organizations as some of the main entertainment industry representatives.
"The Pirate Bay will now file charges against Sweden for violation for Human Rights. More info later. (The bias-judge is himself biased...)," Peter Sunde posted on his Twitter account.
For the second time, a jury on Thursday found Jammie Thomas liable for willful copyright infringement, this time ordering her to pay fines totaling an eye-popping $1.92 million to the RIAA. The surprise decision breaks down to $80,000 for each of the 24 songs Thomas was found guilty of illegally sharing. According to ArsTechnica, Thomas let out a gasp as the fine was read.
"Good luck trying to get it from me," Thomas said when speaking about the verdict. "It's like squeezing blood from a turnip."
For those who haven't been following, Thomas in 2007 was initially accused of illegally sharing 1,700 songs, but the RIAA dropped that number down to 24. In October of the same year, a jury found her guilty and imposed a $222,000 verdict against her. The decision was later thrown out when U.S. District Judge Michael Davis said he erred when giving his jury instructions that simply making songs available amounted to copyright infringement.
The RIAA, big winners in the retrial, told reporters that they have always been, and still are, willing to settle the case. Thomas' lawyer acknowledged the settlement offer, but said he plans to file numerous motions if Thomas chooses to continue the fight.
Rambus doesn't appear to be doing too well with its legal battle against Nvidia, and while the company hasn't given up entirely, it did ask the International Trade Commission to drop four of its patent infringement claims against the GPU maker. In addition, Rambus also asked for termination of several claims from a fifth patent, all of which date back to a November 2008 complaint.
"We are pleased Rambus has recognized the weakness of these patents and claims," said David Shannon, Nvidia executive vice president and general counsel in a statement. "These withdrawals represent essentially half of the patents and one third of the claims asserted against us, and we look forward to addressing the remainder of the case."
Exactly what will remain in the case remains to be seen, but before the withdrawals, the original complaint included nine alleged patent violations all involving memory controllers as used on Nvidia's graphics cards.
Underscoring just how out of touch the Motion Picture Association of America is with its consumer base, the MPAA has spoken out regarding a buyer's (lack of) rights in making a single backup copy of a DVD. The comment came in response to a question raised bu U.S. District Judge Marilyn Patel, who during the RealDVD case, asked the MPAA if whether or not it believes it's legal for consumers to make backup copies of legally purchased DVDs for personal use.
"Not for the purposes under the DMCA," said Bart Williams, an attorney for the MPAA. "One copy is a violation of the DMCA."
And technically, he's right, at least in terms of circumventing copyright mechanisms to make said copy. But what's startling about the comment is that the MPAA has traditionally hid behind the threat of mass software piracy and the resulting lost sales in supporting the DMCA, but apparently you're no better than pirates for profit if you make a single backup copy of a DVD you already paid for.
"We believe the buyer has that right to play a DVD as many times as they want," Don Scott, one of RealDVD's attorneys, told Patel. "We think he also has the right to make a copy, this fair use copy."
For a minute there, we were worried that the 4,382 (number pulled out of a hat) times we used the term 'netbook' would come back and bite us in the rump. That is, if Psion got its way. Back in December 2008, a UK law firm representing Psion had begun sending out cease & desist letters to various websites demanding that the sites stop using the term, which Psion claims to have owned based on a pair of old notebooks it used to sell.
Then in March 2009, Psion filed a $1.2 billion countersuit against Intel over the alleged trademark, a move which probably earned the company a bit of jingle. Not anywhere near the full $1.2 billion, mind you, but Psion did announce today that it and Intel "have settled the trademark cancellation and infringement litigation brought in the Northen District of California relating to the 'netbook' trademark registration."
Psion said an "amicable agreement" had been reached in which the company has voluntarily agreed to withdraw all of its trademark registrations for the term 'netbook.' Furthermore, the company agreed to waive its rights against third parties for past, current, or future use of the term.
Exactly what that "amicable agreement" amounted to is anyone's guess.
Former IBM mergers and acquisitions chief David Johnson finds himself on the potentially wrong end of a lawsuit seeking to prevent him from accepting employment with Dell. According to IBM, the new job would allegedly run afoul an agreement Johnson signed preventing him from working with rival companies.
"Mr. Johnson has possession of valuable confidential information and cannot undertake a senior strategy position at Dell without violating his obligations to IBM," said Edward Barbini, a spokesman for IBM. "Mr. Johnson repeatedly received significant compensation in exchange for agreeing to noncompete provisions."
For the last nine years, Johnson oversaw mergers and acquisitions and was privy to other strategic deals, according to the lawsuit. However, it remains unclear exactly what position Johnson was offered with Dell.
"Characterizations by others of his role are speculative," said David Frink, a spokesman for Dell. "Without exception, Dell respects the trade secrets and intellectual property of others."
Brian Toder, former defense lawyer for Jammie Thomas, dropped a bombshell earlier this week when he asked to be removed from the case. He did so saying he was owed nearly $130,000 "that will never be recovered, coupled with the likelihood that a similar, additional amount will be incurred if ordered to continue representation of defendant."
Stepping in to take Toder's place is a trio of former Harvard University classmates who feel confident they can take on, and defeat, the RIAA.
"We are going a for a jury verdict of zero," said Kiwi Camara, one the three Texas lawyers who replaced Brian Toder on Wednesday. "We are going to convince a jury that the RIAA should not bring these cases."
Doing so will be anything but easy. With a retrial scheduled to begin in just three weeks on June 15, the trio said they will not seek a delay, and instead plan to attack the RIAA's litigation strategy, Wired reports.
"We think the jury is going to reject this strategy," Camara said. "The RIAA strategy here is not to try any of these cases."
Brian Toder wished Thomas well in her ongoing fight.
On hindsight, Jammie Thomas may one day look back and wish she would have taken whatever deal was being offered during a court-mandated settlement conference just days ago. Certainly that seems to be what her lawyer, Brian Toder, must have wanted her to do, as Toder is now attmempting to withdraw from the case less than a month before a retrial in the RIAA's first copyright infringement suit to go to a jury is scheduled to take place.
According to what Toder told U.S. District Judge Michael Davis of Minnesota, he is owed nearly $130,000 "that will never be recovered, coupled with the likelihood that a similar, additional amount will be incurred if ordered to continue representation of defendant."
The RIAA doesn't appear to be opposed to Toder withdrawing from the case, but at the same time, it doesn't want another delay. Should Toder get his way, a delay would seem inevitable, as "there's no way another lawyer could try this case by June 15," Toder said in a telephone interview with Wired.
If you haven't been following, Jammie Thomas was found guilty of copyright infringement in 2007 and fined $222,000 for allegedly sharing 24 songs via Kazaa. Judge Davis later declared it a mistrial on the basis that he falsely instructed the jury that just by making available copyrighted works on a file sharing program constituted copyright infringement, even if it couldn't be proved that anyone actually downloaded the songs.
Barring another delay, a retrial is scheduled for June 15.
Duke Nukem Forever this, Duke Nukem Forever that. We might as well be beating a dead horse at this point, but at least we’re not suing one. That’s Take-Two territory right there.
Apparently, the publisher wasn’t too happy to hear that Duke Nukem Forever developer 3D Realms decided to close up shop last week. Why? Well, according to Take-Two, 3D Realms breached its agreement to finish DNF when the big bad economic wolf finally blew it down. The agreement was probably made in 2007, though at that time, specific details weren’t made public.
"[3D Realms] continually delayed the completion date for the Duke Nukem Forever," said Take-Two in its complaint. "[3D Realms] repeatedly assured Take-Two and the video-gaming community that it was diligently working toward competing development of the PC Version of the Duke Nukem Forever."
But the rabbit hole runs deeper. A quick dig through pertinent legal documents reveals that Take-Two is also attempting to pry Duke Nukem Forever’s source code from 3D Realms’ cold, mostly dead hands, and will probably go through with it if the publisher has its way in court. As of now, even though 3D Realms went under, it still holds onto its unfinished game.
Meanwhile, 3D Realms co-owner Scott Miller claims that Take-Two never actually paid the developer the $12 million needed to secure publishing rights for DNF – which, if true, renders much of Take-Two’s argument moot.
"No. We didn't get a penny of that money," Miller said. "This, along with so much else, is 100% spin, being eaten up by those who have no clue whatsoever."
Well, so much for the Duke Nukem Forever saga ending not with a bang, but a whimper. Expect more fireworks from Take-Two and 3D Realms in the coming weeks.