David Kravets of Wired spoke today with Kiwi Camara, who gave a preview of the tactics his team will employ at the June 15 re-trial:
"We are going for a jury verdict of zero.... We are going to convince a jury that the RIAA should not bring these cases.".... The young attorneys think the key to victory is to attack the RIAA’s litigation strategy, which ha[s] spawned 30,000 lawsuits over five years, most of which have settled out of court for a few thousand dollars.“We think the jury is going to reject this strategy,” Camara said. “The RIAA strategy here is not to try any of these cases.”
It's hard to know exactly what Camara, a 24-year-old partner at Houston's Camara & Sibley, (he graduated from Harvard Law School at age 19!) intends from these brief snippets. But if he really intends to present evidence and argument about all of the other similar lawsuits brought by the major record labels, then I just don't see the relevance, and the court should exclude it.
The only issue for the jury is whether the plaintiffs can prove that Thomas infringed their copyrights, and, if so, how much in statutory damages is appropriate. (They succeeded in the first round back in October 2007, convincing a jury to award them $222,000, only to have that verdict overturned when the judge decided one of his jury instructions was faulty.) So what if Camara (or Thomas) thinks the labels' lawsuits against individual p2p users was unfounded, counterproductive, mean-spirited, or whatever other adjectives they can dream up? Whether the labels "should...bring these cases" (my emphasis) is an interesting question worthy of debate, but it's irrelevant to the issue at hand, and not a question the Thomas jury should consider. Look for a motion in limine seeking to preclude Thomas' counsel from introducing evidence or argument on the plaintiffs' overall litigation strategy, or other individual p2p cases.
Kravets' piece also notes that Camara's firm is representing Thomas pro bono, and that he and his co-counsel have long been under the spell of associated with a certain colorful Harvard Law School professor:
Now the three former Harvard University classmates, Camera, Joe Sibley and former Netscape engineer Tim Nyberg, are stepping up to the plate for free. All three are former students of Harvard scholar Charles Nesson, the founder of the Berkman Center for Internet & Society at Harvard University.
I only hope that Professor Nesson instilled in them his penchant for "radical transparency"!
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As a legal matter, I will defer to your judgment as to whether the other cases are relevant.
ReplyDeleteAs a matter of moral principle, the number of people supposedly guilty under a particular interpretation of a law and fact is definitely a relevant factor for assessing the validity of that interpretation. (But then I'm an extremist on such points who believes speeding tickets are just a lottery tax.)
Ben: Over-broad legislation is a matter for the legislature, not the courts. The court is charged with determining the applicability of a law, and if the law is clearly-written then the applicability is also clear. Morally-driven leniency, to the extent that it applies to legal proceedings, happens in the sentencing.
ReplyDeleteDensity. If a particular legal theory makes legislation overbroad and an alternative theory doesn't, then the alternative theory may be more plausible.
ReplyDeleteFurther, I only believe the courts should enforce laws as clearly written when those laws conform to certain basic and fundamental rights. I'm not saying that this is such a case (nor am I stating the converse.) Just stating that it's a reasonable position to argue for.