Monday, March 2, 2009

Judge in Capitol Records v. Thomas sets strict rules for settlement conference; bid to avoid a retrial?

Anti-RIAA litigator Ray Beckerman is "beyond thrilled" with a "Notice of Settlement Conference" issued in the record labels' case against Jammie Thomas, the Minnesota woman and accused peer-to-peer infringer whose first trial ended with a $222,000 verdict against her. A new trial -- required because of what the court later determined was an improper "making available" jury instruction he issued in the first -- is scheduled for June 15.

Beckerman is especially pleased with this directive to parties regarding the scheduled March 30-31 settlement conference:
Counsel who will actually try the case and each party, armed with full settlement authority, shall be present. If individuals are parties to this case, they shall be present. If a corporation or other collective entity is a party, a duly authorized officer or managing agent of that party shall be present. If an insurance company is involved, the responsible agent must be present. This means that each party must attend through a person who has the power to change that party’s settlement posture during the course of the conference. If the party representative has a limit, or "cap" on his or her authority, this requirement is not satisfied.
Beckerman writes that the effect of this language will be to keep attorney Matt Oppenheim from representing the plaintiffs at the conference; I don't know whether this is true, or why it should matter. (Beckerman fixates on Oppenheim for reasons that elude me.) The plaintiffs will certainly know their settlement posture going into the conference; the identity of their representative isn't terribly important. I do find the ban on a settlement representative who goes in with a cap on his settlement authority unusual; it's common practice for the negotiator to have such a cap (but to be in phone contact with those with authority to raise it if necessary).

Will the case settle? The court sure seems to want to that. And both sides have reasons to want to avoid a second trial. The plaintiffs don't want to risk what would be an embarrassing loss. And Thomas surely doesn't want a second $222,000 verdict that, this time, has a better chance of sticking.

Keep in mind that Thomas already had a chance to try out her defense: that some unknown person went on her allegedly unsecured wireless network and did the infringing acts that the plaintiffs alleged. How did that work out? Well, here's what juror Michael Hegg, a Duluth steelworker, told Wired about Thomas' defense:
During a 45-minute telephone interview, Hegg said jurors found that Thomas' defense -- that she was the victim of a spoof -- was unbelievable.

"Spoofing? We're thinking, 'Oh my God, you got to be kidding.' "


"She's a liar," added Hegg, who just returned home following his 14-hour night shift.


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."


Expert testimony from an RIAA witness also showed that a wireless router was not used, casting doubt on her defense that a hacker lurking outside her apartment window with a laptop might have framed her, he said.

Hegg pointed out that Thomas' Kazaa account username was "Tereastarr" -- the same username Thomas chose for her e-mail, online shopping, online dating and MySpace accounts.

"I think she thought a jury from Duluth would be naïve. We're not that stupid up here," he said. "I don't know what the fuck she was thinking, to tell you the truth."

The court has permitted Thomas to retain a new expert for the retrial. Whether he will be able to improve Thomas' credibility with jurors remains to be seen.

(Disclosure: I worked on an amicus brief in opposition to Thomas' motion for a new trial.)

Update: Ray Beckerman has pulled back a bit from his state of "beyond thrilled" since being informed that the "Notice of Settlement Authority" was just a standard court form.

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