Sunday, May 17, 2009

Worst article of the week award goes to...

Zeropaid: "RIAA Objects to Jammie Thomas Having Legal Council During Re-trial."

Wow, is this bad.

Let's start with the headline: the RIAA has not "objected to Jammie Thomas' Having Legal Council." First of all, Zeropaid's assertion that the RIAA has objected to Thomas being represented by counsel (I'll stick with the American spelling) is absurd on its face. Every party has the right to be represented by counsel, and no party has the ability to object to such representation. What did happen is this: Thomas' counsel Brian Toder moved for permission to withdraw, apparently because Thomas isn't paying her. (He also accused her of making unspecified "false representations." We don't know the whole story because Toder filed his declaration under seal and in camera.) The record labels have not filed any papers on this issue, so we have no direct evidence of what their position is on Toder's effort to withdraw. What we do know about the labels' position is what Toder wrote in his motion:
Counsel to plaintiffs, Timothy M. Reynolds has authorized the undersigned to represent to the Court that plaintiffs take no position with respect to the instant motion, however, plaintiffs object to any continuance. Plaintiffs counsel have also authorized the undersigned to represent to the court that they also waive a hearing on the motion and instead would like 10 days to submit a response addressing any continuance.
Nowhere have the labels objected to Thomas being represented at her scheduled June 15 retrial. Toder's papers simply indicate that the labels have objected to Toder's last-minute attempt to exit forming the basis for a delay in the proceedings. Indeed, it would not surprise me if the court ends up denying Toder's motion to withdraw, precisely because it comes so close to the trial date, and would likely necessitate a delay. Courts generally respect parties' own choice of counsel, but they will sometimes refuse to allow a switch if it would delay resolution of the case. Indeed, a previous attempt by Toder to withdraw was denied, partly it came so shortly before the first trial.

Zeropaid writes:
The reports suggest that the current legal council wants out of the case.
This is just lazy "reporting." The story isn't about what "reports suggest" -- it's about what the papers that Toder actually filed say. Zeropaid's story cites both Ray Beckerman's blog, and Wired's "Threat Level," both of which posted the relevant papers. Perhaps if Zeropaid had bothered to click through to the documents, rather than just glance at the "reports," it would have gotten the facts right.
When Thomas asked for new legal council for the upcoming re-trial, the RIAA objected to her getting new council.
Wrong. See above re headline.
Effectively speaking, the major record labels don’t mind that the defence legal council leaves, but doesn’t like the idea of Jammie Thomas getting new legal council and wants her to go through with the retrial alone.
Zeropaid cites no evidence for its assertion that the labels "want[] her to go through with the retrial alone," likely because there is none. In fact, I highly doubt that the labels want Thomas to proceed pro se. No lawyer I've ever met prefers to litigate against an unrepresented party. For entirely understandable reasons, a trial with Thomas representing herself would be a messy, embarrassing train wreck; she simply wouldn't know what she's doing or how to follow the rules. And it's not as if the labels have any reason to fear litigating against her with a lawyer; in the first round, with Toder at her side, the jury found for the plaintiffs and awarded them $222,000 (though the verdict was later overturned because the court determined one of its jury instructions was erroneous).
The RIAA appealed, but they lost that appeal, paving the way for a brand new trial.
Wrong. The plaintiffs did not appeal. Rather, they sought permission from the district court to appeal, because in federal court an appeal is normally not allowed before a final judgment. And the plaintiffs did not "los[e] that appeal"; the district court merely said that the plaintiffs could not appeal at that point.

Lastly, keep in mind that "the RIAA" is not a party to this case. The RIAA coordinates the litigation, but it's the labels themselves -- not their trade association -- that own the relevant copyrights, and thus are the parties to the litigation.

Zeropaid? In this case, at least, you get what you pay for.

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