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Judge OK's MediaSentry Evidence, Limits Defendant's Expert
NewYorkCountryLawyer writes "In Capitol Records v. Thomas-Rasset, the judge has denied the defendant's motion to suppress the MediaSentry evidence for illegality, holding that MediaSentry's conduct did not violate any of the three laws cited by the defendant. The judge also dismissed most of the RIAA's objections to testimony by the defendant's expert, Prof. Yongdae Kim, but did sustain some of them. In his 27-page decision (PDF), Judge Davis ruled that Prof. Kim could testify about the 'possible scenarios,' but could not opine as to what he thinks 'probably' occurred. The court also ruled that, 'given the evidence that there is no wireless router involved in this case, the Court excludes Kim's opinion that it is possible that someone could have spoofed or hijacked Defendant's Internet account through an unprotected wireless access point. Similarly, because Kim explicitly testified that this case
does not involve any "black IP space," or any "temporarily unused" IP space ...., he is not permitted to opine at trial that hijacking of black IP space or temporary unused IP is a possible explanation in this case.' Dr. Kim was also precluded from testifying as to whether song files were conspicuously placed in a shared files folder or were wilfully offered for distribution. The judge also precluded him from testifying about Kazaa's functioning, but it was unclear to me what the judge was precluding him from saying, because the offered testimony seemed to relate only to the question of whether the Kazaa-reported IP address precluded the possibility of the device having been run behind a NAT device."
Are we fucked, or are we really fucked?
This could be a victory for Jammie. The judge carefully lays out, at pages 13-14, the standards for admissibility of technical evidence.
I know for a fact that neither MediaSentry nor Doug Jacobson could satisfy those standards.
Assuming the judge applies those standards evenly, this trial may end abrutly, because the RIAA's only witnesses may both be precluded from testifying.
Ray Beckerman +5 Insightful
Well now that is a kick in the balls.
So is the judge saying that any old schmuck can skip being licensed as a P.I., then go out and collect evidence (possibly in bad faith) on private citizens, and have it be admissible in court?
Whoa. I smell a business opportunity writ large.
In other news, astrophysicists have announced that they now know what all that dark matter is: it's stupidity.
Is there a jury involved in a situation like this, or is a judge looking at possible testimony and then deciding which of that testimony he (himself) is allowed to hear vs which he (himself) isn't?
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
We've been complaining about judges that were clueless about technology. It appears we have finally gotten one who understands the technology and wants to conduct a fair trial. If this doesn't go the way we want, then not only have we set a precedent, but we also have few remaining valid complaints.
I've abandoned my search for truth; now I'm just looking for some useful delusions.
We're hearing a lot of concern about whether a nominee for Supreme Court justice has a bias in favor of the people on the lower social levels in this country.
I think the obvious bias that our judges have in favor of corporate interests is much more worrisome.
In the US, justice is something you buy.
You are welcome on my lawn.
"no wireless router involved in this case".. so be sure you have one, just in case...
---- Booth was a patriot ----
Putting up copyrighted files for anyone to download (which is what Kazaa does) is willful copyright infringement. Does anyone actually think that's not what the defendant actually did? Why do we need a ten-sentence story about what the judge did or didn't exclude? It sounds to me like a pretty fair trial so far.
Wishing that it wasn't illegal to willfully and blatantly violate copyright doesn't make it so.
Simple. Change this:
The court also ruled that, 'given the evidence that there is no wireless router involved in this case, the Court excludes Kim's opinion that it is possible that someone could have spoofed or hijacked Defendant's Internet account through an unprotected wireless access point.
To this:
The court also ruled that, 'given the evidence that there is no wireless router involved in this case, the Court excludes Kim's opinion that it is possible that someone could have spoofed or hijacked Defendant's Internet account.
Then a demonstration. Take a PC into the courtroom and hook it to a cablemodem. Then tell the guys at Defcon to give the judge a live demonstration of pwnage.
Weaselmancer
rediculous.
Who is Judge OK, and why does he have MediaSentry evidence? Usually judges aren't supposed to be directly involved in cases.
... and then they built the supercollider.
Regardless of operating without the needed licenses? How did that reasoning wash?
It's "OKs" not "OK's"
Learn to use the fucking apostrophe
"The judge also dismissed most of the RIAA's objections to testimony by the defendant's expert, Prof. Yongdae Kim ... The court also ruled that, 'given the evidence that there is no wireless router involved in this case, the Court excludes Kim's opinion that it is possible that someone could have spoofed or hijacked Defendant's Internet account through an unprotected wireless access point."
If there is provably no access point involved, why would someone describing himself as an "expert witness", and a professor at that, opine that it's possible someone accessed the defendant's internet account through it? Is he spreading FUD to get them off the hook, against his better knowledge?
Having followed this case since pretty early on, it seemd clear to me that she in actuality did it. The RIAA has a panoply of cases, many of them very weak cases, some of them much stronger. This is one of the strong cases that they have, not only was her machine directly connected to the cable modem the entire time, the music matches her tastes, and the username matches other usernames she used elsewhere. One of the jurors went on record saying they ruled against her because they thought "she's a liar">
Some people just can't admit that they're wrong. The classic example brought up in tech circles is the boss, or coworker, or luser who just can't admit they made a mistake and feel compelled to tell obvious lies. Usually, the individual needs to lie to themselves so they can continue believing it isn't their fault.
I think the defendant in this case fits this description. She seems hell-bent on getting reamed. The judge instructed the two parties to hold a settlement conference a few weeks ago. Not only was there no settlement, the defendant issued a statement that she would never settle. She has more than $130K in legal bills, and the last verdict was for $220K. That was overturned, but it could be more, much more, on retrial. She could have made it go away for two orders of magnitude less money. Instead she is fighting to the bitter end to go down with the ship.
Such behavior from someone who is (I think) guilty is so self-destructive I conclude she needs to believe she is blameless more than she needs seven figures' worth of cash.
If I were a lawyer, I would be telling my client this case is worse than a loser, it is doomed, and she needs to settle it right away. NYCL, feel free to rip me a new one if (when?) you think I got any of that wrong.
Why don't you go fuck yourself?
Nah. It's just a lawyer throwing paint against a wall in the hope that some it will stick.
Defendant argues that, somehow, Plaintiffs have a monopoly on Kazaa experts.
That is the funniest statement I've ever read as part of a judge's ruling.
This Judge is an Ass-whipe.
Should have never lived or breathed a single breath. What a waste.
Elect a Neanderthal Human like George Walker Bush, who hires Neanderthal like-lings as Richard Cheney and Condie-thang Rice, and reap what you get ... pornograph of the law, bastardification of the law, masterbation of the law in accordance of the Feuhrer George Walker Bush.
Seig Heil, Seig Heil, Seig Heil.
What if he was a TOR exit node and one of the users connected were pirating, would he be liable? I wonder...
Trying to install linux on my microwave, but keep getting a kernel panic...
Where can I get me some of this Black IP space? How can I use it? It sounds cool.
After a lot of years of predominately right wing rule in the United States, there's a shytte-load of judges who will rule against the individual in favour of big money every time. It's the John Robertsing of US jurisprudence, and it has little to do with fairness, justice or judgment.
I've calculated my velocity with such exquisite precision that I have no idea where I am.
If you can't say how the "rock hard" evidence of IP logs could easily be forged or faked, you have said you can't even let the jury decide if that constitutes "reasonable doubt".
After all, just SAYING "it could be X" doesn't mean it creates the doubt in the estimation of their peers.
And isn't your peer supposed to be the arbiter of what is convincing, NOT the judge?
If you want an example of "legislating from the bench" THIS is it.
He "hacked" into DoD machines from his house in the UK.
The US Gov want to try him for breaking into the computers under US law.
He wasn't in US law.
Therefore, either this judge is wrong or the US Gov is.
And note to Dave V 1.0, McKinnon used the normal ability of the "rlogin" command available to log in to these machines. Seems that this is still not enough to make this OK...
I have been torrenting for years, Linux distro's, music and other IP released under the creative commons license is legal. Can we stop saying torrenting is illegal when you mean torrenting IP covered by copyright is illegal? I know many people use torrent for illegal purposes but please don't tar everyone with the same brush, a few of us still use it for its intended use.
Sure people need to be compensated for the work they produce but can we tone down the zealotry? Most peoples problem with the mpaa/riaa (i hope) is the disproportionate penaltys for violation of copyrights or extortionate prices and the extremely small cut that artists actually receive. The best way we can act to promote this is to simply stop aqquiring IP from the companies that support this (legaly or illegaly) because every downloaded IP makes these people think that they have lost a sale and wether you disagree with that or not will never change the minds of anyone who supports overly harsh penaltys for relatively minor crimes.
If an IP fails to sell AND there is no / minimal piracy then maybe companies will start to accept that there products are over priced or that the sentances handed out for violation of this are unacceptable or (insert your own opinion here).
It's all down to how much you believe what you are saying, those that refuse to deprive themselves of a given form of media but still cite prices/penalties as a reason for pirating it are lying to themselves, they obviously place a high value on it otherwise they wouldnt go out of their way to aqquire it and worse they are making the situation worse because the mpaa/riaa will never accept that the piracy has a minor impact on sales (im not saying i believe it does or doesnt have an effect, i simply dont know if it does and frankly dont care) and every IP pirated strengthens their beliefs and gains them more support.
Since i stopped aqquiring copyrighted IP i have learnt that alot of amazing stuff is released via the creative commons license and ok you have to dig around to find stuff you like but theres a lot of people releasing good media and if you like it, dont forget to donate something even if it is just bandwidth.
Remember if a movie/album doesnt sell and there is no / minimal piracy there are no excuses left, once the excuse of piracy is gone then its time to face the fact that out dated business models and underhand tactics are whats losing them sales.
I have never commented on Slashdot before, but I think this ruling on MedaSentry may set horrible precedents. IANAL, IANAML, so I canâ(TM)t comment to the specific laws or legal though processes, but from an outside viewerâ(TM)s perspective the judgeâ(TM)s logic seems to have some flaws. Please correct me if my own logic is flawed.
First, if I understand it correctly, this motion now allows me to directly access the judgeâ(TM)s own computer and not violate the laws cited in the motion so long as I am not physically within the state of Minnesota when I do it.
Moreover, by the judgeâ(TM)s logic, were I to travel from Fargo to Minneapolis and set up a listening device to listen in on the judgeâ(TM)s chambers which uses the Internet (or phone line or short wave radio) to transmit the information, then return to Fargo to listen in on the judge, I would not be violating the laws cited in the motion. Better yet, were I to have someone else do the installing I would be even further beyond violation (since in the first case I would have to physically install the device while in the second I would not). In neither case would I be physically within Minnesota when I acquired the information.
And hereâ(TM)s what seems to be the second logic failure: MediaSentry DID operate in Minnesota â" by actively accessing Ms. Thomas-Rassetâ(TM)s computer. The fact that the company resides outside of the state should not invalidate the illegality of their action within the state. If a Delaware based company violates Minnesota environmental law by the actions of a subsidiary outside of Minnesota (say by polluting a river that enters the state), the company is still cited in Minnesota, right?
Or is the judge simply trying to focus on intrastate violations rather than interstate and therefore federal violations over which he has no jurisdiction? IS it a federal violation to conduct investigations across a state line when the investigating person/entity is not licensed in the initiating and/or target state? When the investigating person/entity has no physical presence in the target state? NYCL, can you answer this?
You are an expert profiler for the police or some spy agency, I understand?
Personally, I try to avoid armchair psychoanalysis of third parties I've only met through the filter of the media.
I have no idea why she didn't settle for the several grand which the RIAA offers everyone in the fishnet, but has it occurred to you that once she is $130K in debt, it might not make any difference to her if she loses and goes even further in debt? I'm quite sure that any settlement which RIAA proposed didn't include their paying her outstanding lawyer bills.
BTW, it's really not clear that RIAA still has a case for the original claims, since they were for distribution and the previous judge ruled that "making available" is not "distribution". It's much harder to prove actual distribution occurred. I'm not sure if RIAA has or is even able to modify their case to claim damages for mere illegal copying or downloading. And it might seem less likely to her, given this big change, that the damages the jury arrives at will remain so enormous.
And tell me, what if she really is guilty? She's not supposed to try to defend herself to the best of her abilities?
Maybe she's hoping that there will be fewer jurors this time who will be willing to line RIAA's pockets just because they think she really is guilty? IMO, that juror was a real jerk. He's supposed to set damages based on the claims of the plaintiffs in light of the evidence presented, not based on what he thinks is the defendant's moral stature, or perhaps that he's pissed off that he has to do stupid jury duty because this "guilty woman" didn't cave in and is willing to lie to protect herself.
Geez, I wonder what kind of damages this juror would have set if the defendant happened to also be a convicted serial murderer. And with this we see the downside of the right to a trial by jury (although to be honest, in such a case the judge would probably explicitly instruct the jury that they need to ignore that when deciding the damages).
It's up to the prosecution to prove their case. I'm simply assuming that the tracking information is at best only mostly correct. It has been shown time and again that there are many ways to take over someone's machine and turn it into a proxy, I'll let you Google the methods. If it's less than mostly correct, then the prosecution's case is even further weakened.
As to your second question, they are in the process of showing exactly that, and the judge is deciding upon which evidence is acceptable and which is not.
If it turns out they are full of shit, then so be it. But, until then, we let the process run through its steps. I make no assumptions of guilt or innocence; I simply point out that their is no successful prosecution/suit without sufficient evidence.
We ask for Justice; we get the Law (We secretly wish for Mercy).
The prediction is tied to the question (unprovable by logic) wether or not the judge will apply certain standards. It is not tied not to the fact statement you linked to.
1 - Are you asking for a proof that MediaSentry doesn't meet the standards on page 13-14? If so, do your own goddamn research. If you object, or opine differently, then bring a good argument to the table, backed up by the same level of effort (proof) you demand of others.
or
2 - Are you requesting proof that the judge will/will not apply said standards? Again, not provable via logic, and was never asserted to be factual.
Perhaps a course in effective communications is in order? On top of that logic course...
"Give a woman two glasses of wine and some pad thai, and they'll agree to just about anything." the Sports Guy