MediaSentry & RIAA Expert Under Attack

NewYorkCountryLawyer writes "Jammie Thomas, the defendant in Duluth, Minnesota, RIAA case Capitol Records v. Thomas, has served her expert witness's report. The 30-page document (PDF), prepared by Prof. Yongdae Kim of the Computer Science Department of the University of Minnesota, attacks the reports and testimony of Prof. Doug Jacobson, the RIAA's expert, and the work of the RIAA's investigator, Safenet (formerly known as MediaSentry). Among other things, Dr. Kim termed MediaSentry's methods 'highly suspect,' debunked Dr. Jacobson's 'the internet is like a post office' analogy, explained in detail how FastTrack works, explored a sampling of the types of attacks to which the defendant's computer may have been subjected, accused Jacobson of making 'numerous misstatements,' and concluded that 'there is not one but numerous possible explanations for the evidence presented during this trial. Throughout the report I demonstrate possibilities not considered by the plaintiff's expert witness in his evaluation of the evidence...' Additionally, he concluded, 'MediaSentry has a strong record of mistakes when claiming that particular IP addresses were the origins of copyright infringement. Their lack of transparency, lack of external review, and evidence of inadequate error checking procedures [put] into question the authenticity and validity of the log files and screenshots they produced.'"

Comments

Thank you, NYCL!

[Chabo]

Thank you for your coverage of these events, even if you're biased. ;)

Then again, consider the audience!

Re:Thank you, NYCL!

[mcgrew]

Thank you for your coverage of these events, even if you're biased. ;)

Everyone is biased one way or another. Your point?

Make NewYorkCountryLawyer an Editor

[LordKaT]

Please? At the very least you'll have someone with an honest to god education who can proofread and write decent articles on your editorial staff, as opposed to ... kdawson.

Re:Make NewYorkCountryLawyer an Editor

[Anonymous Coward]

If you'd like to have a great editor with a great conflict of interest, then yes, he should be an editor.
Otherwise leave it to people who don't submit stories.

Duh?

[girlintraining]

Yeah, digital evidence can be such a bitch, especially when you gather it remotely. You have no idea if the client (remote end) is telling the truth or not, let alone if it was tampered in transit or not, and even if none of that is true, there's still no way to link what a computer does definitively to what a person designated as the primary user of that system, simply because that system could have been previously compromised via a litany of vectors. In short, why this ever got this far is beyond me... The standards of evidence have slipped quite a bit. These days, you yell "computer!" in a crowded court room and bring in an "expert" in a suit, and the judge and jury will believe just about anything. IP addresses and hashes as "digital fingerprints"? a smack of MP3s on a hard-drive is "evidence"? If I rip a CD I legally purchased, encode it into MP3, and then the CD is damaged and thrown away, or stolen, does that make my digital copy illegal? Apparently. things that are perfectly legal to do to their physical counterparts become illegal to do when a computer becomes involved, simply because someone yelled "computer!" in a crowded court room.

Please god, send us a lawyer worthy of Mordor.

Re:Duh?

[Reality Master 101]

In short, why this ever got this far is beyond me... The standards of evidence have slipped quite a bit.

I'm not fan of the tactics of the RIAA, but posts like yours drive me insane. Why do computer geeks seemingly have so much trouble with the concept of "guilty beyond a *reasonable* doubt?" The quote is NOT "guilty beyond all doubt".

Yes, it's theoretically possible that someone broke in and used your computer to download MP3s. However, that's not reasonable.

Yes, it's theoretically possible that someone stole your bandwidth to download the songs that just happened to be on your computer, but that's not reasonable.

Why is "reasonable doubt" so hard to understand? VERY few criminal cases meet the standard of "guilty beyond all doubt". If that was the standard, no criminal would ever be convicted.

These days, you yell "computer!" in a crowded court room and bring in an "expert" in a suit, and the judge and jury will believe just about anything.

And that cuts both ways. Computer geeks believe that all they have to do is yell "BANDWIDTH THEFT!" in a crowded room and they think it's an airtight defense for just about anything.

Re:Duh?

[girlintraining]

I'm not fan of the tactics of the RIAA, but posts like yours drive me insane. Why do computer geeks seemingly have so much trouble with the concept of "guilty beyond a *reasonable* doubt?" The quote is NOT "guilty beyond all doubt".

Cases based largely if not entirely on circumstantial evidence (which is what data remotely gathered is), do not rise to "beyond a reasonable doubt". I'd go as far as to say -- why the hell does this get before a judge and not get thrown out? Because the judge doesn't understand that all the crap that RIAA puts in front of him/her is circumstantial. And then they sign a bunch of warrants and set everything in motion -- which thanks to recent supreme court rulings, can be admissible even if the original reasons were complete bunk. So in short, RIAA is playing on the technical ignorance of judges to advance these cases, hoping that their circumstantial evidence leads to admissible evidence at trial.

And THAT is the abuse of the system, and posts like yours "drive me insane" because posters like you fail to see the larger issue because you're hyper-focused on the little tiny things like whether a certain word was stressed or not.

Re:Duh?

[m.ducharme]

Also, the RIAA, as far as I know, doesn't have to meet the "reasonable doubt" standard, but the "preponderance of evidence" standard, which basically means that they have to prove that their story is more likely than the other side's.

I think that if they had to meet the "guilty beyond reasonable doubt" test, they would fail. It is certainly reasonable that a third party infected her computer and used it for their purposes, if her computer was a bot- and virus-infested nightmare, as I suspect it was.

The real risk for MediaSentry here is that their methods don't seem to have any rigour at all, and may not actually qualify as evidence at all. I'm more interested in the lack of time stamps, investigator's licenses, or protocols for preservation of evidence than in the possible attack vectors available to a third party.

If the MediaSentry evidence is all they have, and it gets thrown out because of Dr. Kim's expert testimony, the RIAA won't have anything left.

Re:Duh?

[BCGlorfindel]

Cases based largely if not entirely on circumstantial evidence (which is what data remotely gathered is), do not rise to "beyond a reasonable doubt".

The trick that is killing everyone though is that "beyond a reasonable doubt" is only the bar for criminal cases. In civil suits like those the RIAA is pursuing the burden of evidence is much, much lower. When people go into the court thinking it'll be a cake walk because they can plead reasonable doubt they get burnt when reasonable suspicion is sufficient to find in favor of the RIAA.

Re:Why are they attacking him?

[johnsonav]

We want the right to purchase digital music ONCE with the ability to transform that single digital copy into any media or format we choose ... and purely for personal use.

Then why hasn't music piracy disappeared since iTunes went DRM free?

Re:owned.

[Thinboy00]

It would be good if this argument made its way into the US legal system, but for all the flak that UK judges get for ignorance, I suspect they are smarter when it comes to technology.

It's more general than that. The ENTIRE EU is more clueful when it comes to tech than the ENTIRE US.

You have to wonder...

[hyades1]

How could a legitimate expert in the field make the errors and omissions Prof. Doug Jacobson did in his testimony? It appears from what has been said that either Jacobson's academic credentials or his honesty are suspect. These omissions are not minor, nor are they so esoteric that a so-called "expert witness" could be forgiven for being unaware of them.

Re:interesting dreamworld he lives in

[Anonymous Coward]

If Professor Kim was referring to adsl1 than he is correct. If he is referring to ADSL2 then this can be further argued based on distance from the exchange. You can't calculate based on theoretical speed.

Re:owned.

[Anonymous Coward]

No, you're parsing the GP's sentence incorrectly. The GP is not claiming that the individuals comprising the EU each have more knowledge about tech than the individuals comprising the US, but that the EU as a totality has more knowledge. In other words:

The entity (ENTIRE EU) is more "clueful" than the entity (ENTIRE US).

Savvy?

Re:Why are they attacking him?

[johnsonav]

Because iTunes is platform-locked and therefore sucks ass.

CD's are platform-locked; you have to have a CD player. Generic mp3's are platform-locked; you have to have a computer or dedicated mp3 player. Records are platform-locked; you have to have a turntable.

Every music delivery method is platform-locked.

Re:owned.

[Tubal-Cain]

I have such a counterexample: French President vs. a brick.

Re:owned.

[tsm_sf]

I'll never understand how people can base a legal argument around a text file.

Unless you have an officer of the court present during the writing of the router code, the server code, the logging module code, storage of the logs, retrieval of the logs, and on and on and on... it's all absolute bullshit. Strike that 'unless', it should be 'even if'. There's not a person here (he said, as if it was 1998) who couldn't fake this shit given physical access and a week to study.

A text file is not a god damn fingerprint.

Re:owned.

[Tuoqui]

Finally...

Yeah use the Slashdot defense. Bring a 7 year old into the court and have them edit the text file and/or modify the screenshot in about a minute. Remember that the RIAA and MediaSentry are heavily biased parties. They have a long range of abuses of the legal system abuses and lets not forget their attack dog (MediaSentry) is not even a licensed investigator either.

No "Profit!" step, I know the reason

[jonaskoelker]

Hey, that should have been a numbered list ending in "Profit!".

When you imitate the RIAA's business strategy, there's no profit step :p