As I write, Jammie Thomas, a single mother of two, is planning to appeal a Duluth, Minn., jury’s order to pay $220,000 to the music industry for downloading songs from the Internet. The Recording Industry Association of America (RIAA) won the first round against Miss Thomas last week in the first such case to actually come before a U.S. court.
The odds are fair that you’ve done the same thing. If you have teenage children, the odds go way up that they have.
The trial is a perfect illustration of the uneasy intersection of law and technology. The problem is that in all likelihood, the jury didn’t understand the testimony.
I find the best account at Wired (.com), which specializes in technology news. Says the story: “Some of the 12 panelists told the judge during jury selection that they lacked basic computer knowledge. Some said they had never been on the Internet or don’t use it now … Five said they had a digital music player and two said they copied a compact disc.”
Further, according to Wired, the attorneys and witnesses had to explain terms like playlist, traceroute, P2P, ripping, burning, IP address, hex code, meta data, encryption and DHCP. (That’s Dynamic Host Configuration Protocol, which sounds like punching out a bartender, but isn’t.) Now, let’s think about this. In a trial, a jury is supposed to listen to evidence, understand it and come to a conclusion. This probably worked reasonably well in 1850 when a jury of farmers heard a case of horse theft. They were reasonably intelligent, understood horses and understood theft. Fine.
What are the chances that a computer-illiterate jury will be able to do as well in a highly technical case? About zero. They will come to a conclusion, but they might as well flip a coin.
Readers of this column are likely to know a lot about computers, but suppose the trial dealt with, say, biochemistry? Few of us know much about activation energies, resonance in benzene rings or bond energies. If you knew you were going to be a juror, you might take the few necessary months and read some books. But juries go in cold. Is it possible to grasp a highly difficult field adequately by listening to brief explanation in a courtroom? I don’t think so.
It is perfectly possible to be brilliant and never have been on the Internet. The occasional poet perhaps, or the very old — perhaps. But how many people do you know who haven’t been on the Internet? Sure, some people just don’t care for music. Still, not having a digital music player of some sort is fairly rare.
If we assume the people of Duluth to be about like those everywhere else, they are knee-deep in computers, IPods, cell phones, stereo systems and digital cameras. Why was the jury in a technological trial a group that seems willfully chosen for unfamiliarity with technology? Probably because they were willfully chosen. Anyone who knows much about computers is likely to have pirated music, or to have friends and family members who have. These aren’t likely to find for the RIAA.
If the jury understands the testimony, the outcome depends on the charm and histrionics of the attorneys and on the juror’s impressions of the defendant. These can be elements in any trial. If the jury cannot grasp the evidence or argument, they will be the only elements.
This I think is approximately the case in any trial involving complex technology. The whole business appears to reduce to an elaborate charade.
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