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."

Comments

Could be a victory

[NewYorkCountryLawyer]

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.

Re:So, what now?

[larry bagina]

Jammie is, if her defense is blaming it on a wireless router that she doesn't have.

Get over it

[ceswiedler]

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.

Re:Get over it

[davmoo]

I've made similar comments to this case in the past, as recently as yesterday. While I despise the RIAA and think they are a perfect example of how not to conduct business, at the same time its obvious from the evidence of the first trial that Jamie [what ever her last name is this week] did in fact infringe copyright. Thus I have a very hard time wanting to root for her side. I wish the Slashdot community could have found a better case to rally around.

Re:Get over it

[Jay Clay]

1) it may or may not be willful. I know plenty of people who didn't realize what they were getting into with file sharing apps. As a matter of fact, most people I know who aren't fairly computer savvy thought the whole illegal internet music thing was about downloading, not uploading.
2) it's not what we think happened. It's if there are other PLAUSIBLE things that could have happened.

Re:Get over it

[Anonymous Coward]

I don't disagree, though your assumed wish.

Personally, I:

  Wish that copyright law followed the constitutional purpose and limited duration.
  Wish that non-commercial copying was recognized as the minor act that it is, and not one having consequences comparable with armed robbery.
  Wish that a hunt of non-commercial copying was not a legal excuse of private wiretaps and invasion of privacy.
  Wish that there was a balance between protecting the public interest and protecting corporate profits.
  Wish that it was realized that non-commercial copying is a natural consequence of the internet, and to attempt to prevent such activity requires an increasing amount of snooping by the public and private parties.
  Wish that it was known that prosecuting or preventing non-commercial copying has no measurable impact on the sale of the important information.
   

Re:Get over it

[sirsnork]

I think there would be a lot less sympathy for her if a guilty verdict wasn't going to destory her life. No act of copying/sharing a few MB should end up costing you your life savings (and then some) unless it's treason (and in that case you had it coming).

I think most of us would be fine with all of these cases if the defendants involved had to pay a reasonably amount of money but clearly that isn't the way it's going.

Re:Get over it

[artor3]

While I certainly agree that the punishment does not fit the crime, the overwhelming majority of people on Slashdot aren't taking that stance. Instead, they are insisting that the RIAA can't prove it, or hoping for legal loopholes to get her off. They aren't interested in the system being fair, only in their side winning.

What it comes down to is that people on this site believe themselves to possess a God-given right to enjoy other people's work without paying, and they'll demand that "right" be defended by any means necessary. I can't even count how many times I've seen people advocate the murder of record company execs as an appropriate response.

Re:Get over it

[paulwye]

Right, because the RIAA is *totally* interested in the system being fair, and really has *no* interest in seeing 'their' side win...they aren't trying to create loopholes or engaging in anything underhanded... nope, not THIS gang...

Re:Get over it

[artor3]

Yup, they're bad.

That doesn't mean we should be too.

Re:Get over it

[laughingcoyote]

Personally, I:

Let's go bit by bit here.

Wish that the ethical definition of copyright violation were more important than the "definition" of theft as they are ethically the same.

A lot of people disagree with you. I know plenty of people who would never dream of stealing but have no issue with copying something. Stealing something is like me sneaking into your house and taking away your favorite shirt. Now (important point follows) you no longer have it, and I do. In that case, it's pretty clear I did something ethically wrong that did harm to you.

Copying, on the other hand, is like me making myself one that looks the exact same. It might annoy you that your favorite shirt is now less unique, and it might annoy the manufacturer that I made it myself rather than paying them for one, but you still have it, I didn't take one they made, and there's a much weaker case that I did anyone wrong in an ethical sense.

The copyright aspect doesn't change that here. A computer, in our analogy here, is like an extremely fast sewing machine that can make about any type of clothing at near zero marginal cost. Yes, in that world, you're going to have to be very inventive to sell clothing. It doesn't mean it's impossible, but doing it the way it was done before (packing millions of identical ones up and shipping them out to stores) isn't likely to work as well. Do custom design, or value added stuff the machine (or computer) cannot copy at zero cost. Invent, don't try to push the genie back in the bottle.

Laws that seem nonsensical and overly harsh lessen respect for all laws, even those which are fair and necessary. If Congress passed a law against rain, it would just make them seem foolish, even when they next pass a law to help stop murders. The weather's already rolled in, and the people have spoken-noncommercial copying is largely considered acceptable. It really always was. No one considered it wrong to videotape a TV show (or a movie on TV), copy a tape to a blank for a friend, or buy one copy of a book to pass around. It's on a larger scale now, but this isn't anything new. The only reason people are alarmed now is that they're being told they can't do something that they widely don't believe to be wrong. That's not a good recipe.

Wish that the ethical definition of copyright violation were more important than the "definition" of theft as they are ethically the same.

I wish people wouldn't state their opinion as fact, and then proceed as though it were so. I acknowledge your opinion that it is an "ethical lapse" to engage in noncommercial copying, and that this lapse is on par with stealing something. I do, however, disagree with it. I am not the only person who does.

Regardless, even if we presume you're right, the penalty for downloading a few CDs certainly should not be orders of magnitude more than walking out of a store with the physical copies would be.

Wish that the straw man of "non-commercial copying has no measurable impact on the sale" would be seen as the smoke and mirrors that it is.

Let's look at some possible scenarios here:

• Band A releases a CD. I don't do noncommercial copying. I never hear of Band A either, or hear them but am not interested enough to pay for anything from them. Band A is no better or worse off than they would've been with copying.
• Band A releases a CD. I do noncommercial copying. I already know of Band A and download Band A's CD. If I hadn't been able to do that, I would've bought it. Band A would have made money from me without the copying and didn't with, so they're worse for the copying.
• Band A releases a CD. I do noncommercial copying. I download Band A's CD. I don't buy anything from them, but if I hadn't been able to do that, I never would've heard of them at all. Alternatively, without copying, I would've heard of them but would not have been interested enough to p

Re:Get over it

[_Sprocket_]

While I certainly agree that the punishment does not fit the crime, the overwhelming majority of people on Slashdot aren't taking that stance. Instead, they are insisting that the RIAA can't prove it, or hoping for legal loopholes to get her off. They aren't interested in the system being fair, only in their side winning.

I would hazard to guess that these people don't see the option for a fair system. So failing that, they want to see the entire system fail. I've been infringing copyright in one way or another for well over 20 years. Sometimes it is by accident. Sometimes it is debatable (depending if you're an industry group and your views on fair use). Sometimes it has been entirely willful with full knowledge of my actions. And in this way, these acts tend to be along the lines of when I've gone faster than the posted speed limit (which I've been doing on occasion for less time than I've infringed copyrights). I don't ever expect to have my financial life destroyed because a cop caught me speeding. Of course, I'm not going a hundred miles over the posted speed limit but then I'm also not running a black market DVD manufacturing facility.

What it comes down to is that people on this site believe themselves to possess a God-given right to enjoy other people's work without paying, and they'll demand that "right" be defended by any means necessary. I can't even count how many times I've seen people advocate the murder of record company execs as an appropriate response.

That's an awful broad brush you're using there. I agree that there are definitely a large number from the something-for-nothing crowd. But you're being willfully ignorant by claiming that is the entire breadth of the issue and ignoring the complexity and diversity of arguments that are made on this site. Copyright is a complex little beast and is being made more complex over the years by the very people who claim to have the creator's interests in mind.

Re:Get over it

[Sasayaki]

While I certainly agree that the punishment does not fit the crime, the overwhelming majority of people on Slashdot aren't taking that stance. Instead, they are insisting that the RIAA can't prove it, or hoping for legal loopholes to get her off. They aren't interested in the system being fair, only in their side winning.

What it comes down to is that people on this site believe themselves to possess a God-given right to enjoy other people's work without paying, and they'll demand that "right" be defended by any means necessary. I can't even count how many times I've seen people advocate the murder of record company execs as an appropriate response.

No, I think you're exaggerating pretty substantially (I'm sure other replies will correlate this). Almost everyone outside of the "IP is immoral, man, dude, bro... you can't OWN an IDEA, man!" crowd accept that torrenting is, basically, wrong. It's just the degree of 'wrongness' that's at question, along with how much people should be punished for doing it.

I believe jaywalking is wrong. I jaywalk frequently and I sleep perfectly well, because I believe it to be a very, very minor wrong. If I was caught jaywalking, I would just shrug and pay the $50 fine or whatever, because I acknowledge what I did was wrong and accept that I should be lightly punished for it.

I believe torrenting stuff is wrong too. I bittorrent frequently and I sleep perfectly well, because I believe it to be a very, very minor wrong. If I was caught bittorrenting, I would either pay the exorbitant settlement ($3,100 or so) OR (far more likely) refuse and get dragged through court, paying many times this amount in court fees, legal fees, lost wages etc.

This is the big difference. That copyright infringement is considered by most people to be a minor offense, much akin to jaywalking. The problem is that the MPAA/RIAA/etc believe copyright infringement to be in some cases worse than murder- so I would counter your argument that "people advocate the murder of record company execs as an appropriate response" by saying that the RIAA/MPAA do also believe that utterly destroying someone's life/life savings (and if they had their way serious jail time and felony status) is an appropriate response to downloading a CD. But instead of just talking about it, they *actually go out and do it*.

Who are the real zealots?

Re:Get over it

[NewYorkCountryLawyer]

She does not have to go through any of it. She didn't have to violate their copyright. She could have settled.

How do you know she had enough money to settle with them. And how do you know she "violated their copyright"? You seem very partisan.

Instead, she decided to fight it out

If she was innocent why should she not "fight it out"? And how do you know she "decided" anything; the RIAA asked for a settlement she couldn't afford.

and it was that decision that let to years of court cases, hundreds of thousands of dollars in fines, etc.

So you're blaming her because the RIAA sued her? That is ridiculous. It was the RIAA's decision to bring a lawsuit and to pursue that lawsuit; she had no control over it.

You are blaming those whose rights were violated for protecting those rights while absolving her of all responsibility for the position she is in.

How do you know the plaintiffs' rights were violated? And how do you know, if they were violated, that they were violated by her?

Re:Moral of this story:

[Achromatic1978]

Perjury! What an awesome defense strategy! What fantastic intellect!

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...."

Re:So, what now?

[Anonymous Coward]

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.

Re:There is a way around that.

[MaskedSlacker]

And your rationale for this is...what?

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.

Re:There is a way around that.

[Antidamage]

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.

Re:Tor Operator

[L4t3r4lu5]

Why do you think there are so few TOR exit nodes in the US and mainland Europe?