CNET News Fails Civil Procedure

As an attorney and former reporter, I am constantly driven nuts by news stories that get the law wrong. Law uses its own language and can be perplexing to lawyers, let alone normal people. But that just means reporters (and editors) need to be extra careful; it's not an excuse to screw things up.

Today's example of botched legal reporting comes from CNET News, which published a story headlined "RIAA loses mistrial appeal." First, a little background about the case, called Capitol Records, Inc. et al. v. Thomas. Thomas is one of thousands of copyright infringement suits filed by US record labels against individuals for allegedly uploading and/or offering for upload music files over peer-to-peer networks; this is the only one of the cases to go to trial (virtually all settled). Plaintiffs won at trial, and Thomas was ordered to pay them $222,000. After trial, the judge issued an order stating that he believed he may have misstated the law in one of his jury instructions (regarding the so-called "making available" right), and invited briefing on the issue. After briefing and argument, the court said that he had indeed erred in his making-available instruction, and ordered a new trial. (Disclosure: while an attorney at Fox, I played a minor role in the submission of this amicus brief by the MPAA arguing that the original making-available jury instruction was correct. This post is based solely on publicly available information.)

As the case proceeded toward a new trial (where a different jury instruction would be used), the plaintiffs sought to appeal, i.e., to get the US Court of Appeals for the 8th Circuit to rule immediately that the jury instruction was correct, and that therefore no new trial was necessary. The problem is that the basic rule in federal court (with some fairly narrow exceptions) is that a party may not appeal until the case is completely finished in the District Court (which Thomas wasn't, because the second trial hadn't yet occurred). One way for a party to appeal before normally allowed is to ask the District Court for permission in a process called "certification" (under 28 USC sec. 1292(b), for those who care). Plaintiffs asked the court for such permission, but the court on Dec. 23 said no. That Dec. 23 order is the subject of the CNET article. So what did CNET get wrong? Let us count the ways:

1) CNET's headline "RIAA loses mistrial appeal" is wrong. The body of the article then makes the same mistake in stating that "the RIAA appealed the judge's decision to declare a mistrial...." These statements lead the reader to believe that the "RIAA" (more on that below) actually lost an appeal. But it didn't. It never appealed. As explained above, all that happened is that the District Court (not the court of appeals) denied plaintiff's motion seeking permission for an immediate appeal. There was no appeal; therefore the "RIAA" couldn't have lost one. And there may well still be opportunity for an appeal later.

2) The article also errs in stating that "the RIAA" "loses mistrial appeal," and "the RIAA appealed..." (my emphases). But the RIAA is not a party to this suit and thus did not "lose," "appeal," or anything else. The actual parties to the lawsuit are: Capitol Records Inc.; Sony BMG Music Entertainment; Arista Records LLC; Interscope Records, Warner Bros. Records Inc.; and UMG Recordings, Inc. The RIAA is a trade association of which the plaintiffs are members (and which coordinates these lawsuits), but it is the actual copyright owners -- not the RIAA -- that are parties to the lawsuits and that ultimately decide whether to file and how to litigate them. (The copyleft prefers this "RIAA" formulation because they like perpetuating the false notion that it's some nefarious organization, rather than actual copyright owners, that is bringing these suits.)

3) The article calls the Thomas case "the RIAA's latest attempt to gain a conviction for copyright infringement." But the term "conviction" only applies where someone has been found guilty of a crime. This case is purely civil. Thomas may (yet again) be found liable for copyright infringement, but she hasn't been charged by the government with criminal copyright infringement, and thus can't be convicted of anything.

4) The article states that plaintiffs' effort to win this suit "has been thwarted." Wrong. The Dec. 23 ruling simply means that there will soon be another trial, without an intervening trip to the Eighth Circuit. Plaintiffs still have an excellent chance of winning, as the court has held that they can prove the necessary "actual distribution" of plaintiffs' songs by showing that its investigators downloaded the files from Thomas. See this order at pages 9-12. Plaintiffs' victory may have been delayed, but it hasn't been "thwarted" -- at least not yet.

It's a hassle, but non-lawyers reporting on obscure legal maneuverings should really check the accuracy of their stories with attorneys before filing them. Or cut out the middleman and go to law school...

UPDATE: Wired's Threat Level blog makes the same "RIAA" error. Getting this right shouldn't be too hard; the front page of the complaint lists all the parties. No RIAA.