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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."
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
Jammie is, if her defense is blaming it on a wireless router that she doesn't have.
Do you even lift?
These aren't the 'roids you're looking for.
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.
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.
The alternative...
"Are you in possession of an open Wireless Access Point, which allowed any client within range to connect, if its operator so chose?"
"I am."
"On the day in question, was this Wireless Access Point connected to your internet connection through ABC ISP Inc?"
"Uhhh...."
We wait to see what happens once the trail gets underway.
IANAL, but I did read the objection the first time around on Slashdot (something probably 99% of commenters didn't do) and I thought at the time that the RIAA's side was making some pretty good points, especially about the 14 different ways in which Dr. Kim *speculated* about what might have happened. Whether that's really what his deposition said or not, that's the way they phrased it in the objection, and I'm pretty sure that courts don't generally like or admit pure speculation.
There was undoubtedly a better way to spin things for the deposition than speculation, but that's what happened. As far as the objection brief is concerned, a lot of the points were fairly legit, as the outcome here today shows.
I'm still hoping for the massive RIAA smackdown court trial to take place, but I'm fearing that this case is only going to set precedent that slightly bolsters their already-overreaching (in my opinion) position and powers.
What the court is saying is that if you're a person in California sitting behind a computer in California and decide to look up some information on another person, and the information you find is located on a public webserver that happens to be in Minnesota, you are not required to apply for and receive a private investigator's license from the State of Minnesota before reading the web page.
In this case, the server was a Kazaa server, but it makes no difference if it's a Kazaa server or an FTP server or an HTTP server. The point is, you don't need a Minnesota PI license to read publicly published information from another state, even if the server happens to be located in Minnesota.
Had the court decided the other way, I think that'd be pretty seriously frakked up...
"Convictions are more dangerous enemies of truth than lies."
What you keep failing to see is that it also matters where the data was collected. It was not collected in Minnesota, therefore Minnesota law does not apply.
MediaSentry was not in Minnesota, did not enter Minnesota, and has no agents in Minnesota. Minnesota law does not cover people and/or companies that are not in Minnesota. The respondent knowingly used a freely available program that reported all the information that MediaSentry collected. All MediaSentry did was take her up on her offer to download the data via Kazaa, at which time she, via Kazaa, provided the information now being used against her. MediaSentry didn't even ask for the data that was provided.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
Standard legal doctrine. By arguing that the defendant's system was pwned directly by hackers you have to prove such a claim, which requires significant access to the machine and forensic investigation. Remember, these are NOT criminal trials, there is no 'beyond reasonable doubt' criteria. In a civil trial one party need only establish a preponderence of evidence. If you are going to claim that the machine was pwned, establishing this will require a lot of evidence, especially since the jury will likely be 12 technologically clueless senior citizens that will never believe that people in russia are using their computers too.
It worked out OK for Alberto Gonzales. Then again, he was fooling Congress, which as I understand is nothing special.
Read the judge's decision, complete with case law. If the data collection did not occur in , the company has no agents in, and the investigators never entered Minnesota, why should Minnesota have any say, especially when Minnesota law does not apply outside of Minnesota?
Your reasoning is entirely circular. We are discussing whether the Judge erred his decision, and in order to defend the decision, you are citing the decision itself. That makes no sense.
IMO, the judge erred in concluding that Minnesota's licensing statute can be circumvented by an unlicensed investigator conducting an investigation in Minnesota of a Minnesota resident to gather evidence to be used against that Minnesota resident in a Minnesota courtroom, merely by reason of the fact that his viewing platform was in another state. I don't think the Minnesota legislature will take kindly to that ruling, especially in this day and age where almost anything can be done remotely, via the internet.
Ray Beckerman +5 Insightful
I am uncomfortable with this because Mediasentry sent requests to Minnesota to instigate that sending to Mediasentry. Further, downloads began only after Mediasentry requested them. It seems to me that such requests, which had to go to a specific IP address that plaintiffs allege to have been in Minnesota, constitute activities in Minnesota.
I agree with you, and I feel that Judge Davis missed the boat on this issue.
Ray Beckerman +5 Insightful
I have a problem with this whole proposition. I don't like dishonesty.
The RIAA suing select people for vastly more than they could reasonably claim in damages is dishonest. These select users lying to get otherwise reasonable justice is also dishonest.
The entire system needs to change, but in the meantime people should fight the good fight rather than lie and use technicalities they know are dishonest. We want to be the good guys here.
if only mod points could win court cases : (
Balderdash!
A web page is typically a file held on a computer with appropriate software designed for serving that file (web server), and associated files, to another computer which requests that file using an appropriate client application.
In this case, a "shared file" (as i'll call it) is typically a file held on a computer with appropriate software designed for serving that file (file sharing software), and associated files, to another computer which requests that file using an appropriate client application.
I believe the analogy was valid, if unintentional. You don't put a file in a shared webserver folder if you don't intend to share it. What teh RIAA want to do is prove that it was put there on purpose. With webservers, this is easier, as they're not designed to automatically share any file you download.
Finally had enough. Come see us over at https://soylentnews.org/
Why do you think there are so few TOR exit nodes in the US and mainland Europe?
Finally had enough. Come see us over at https://soylentnews.org/