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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.
No, actually. When changing an acronym to another part of speech, you always include the apostrophe. You append the 's' directly when changing the acronym to a plural.
"OK's" is a verb
"OKs" is the plural of "OK"
The apostrophe can also be used in the plural form if lower case letters are used in the acronym.
Regardless of operating without the needed licenses? How did that reasoning wash?
They were not, in fact, operating without the needed licenses, because there were no needed licenses. You don't need a Minneosta PI license to read a web page from your computer in another state, even if the server happens to be in Minnesota.
"Convictions are more dangerous enemies of truth than lies."
...the use of apostrophes with initialisms like "learn your ABC's and "mind your P's and Q's" is now so universal as to be acceptable in almost any context.
"Convictions are more dangerous enemies of truth than lies."
Good point. As with most aspects of English grammar, there are more exceptions than rules.
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.
Nah. It's just a lawyer throwing paint against a wall in the hope that some it will stick.
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...
You don't need a Minneosta PI license to read a web page from your computer in another state,
You apparently do not know anything about the facts. There was no web page, nor was MediaSentry reading a web page.
Ray Beckerman +5 Insightful
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.
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/
Can we stop saying torrenting is illegal when you mean torrenting IP covered by copyright is illegal?
But legally fre does not mean exempt from copyright, it just means they copyrighted it and want it distributed/shared for free. Creative commons relies on copyright law to work... so even your statement there is wrong-ish.
If you believe in privacy, and believe you have "nothing to hide" at the same time, you're a goddammed idiot
The shark had two laser's on its head.
Can you think of example of this rule that won't make my eyes bleed?
-Dave
except OK is not an acronym..it is an abbreviation of okay (in this usage. It could also be a reference to the state of Oklahoma). An acronym is made up of the letters of a series of words/names (such as IANAL or TANSTAAFL or RTFA), vs. an abbreviation which is a shortening of a word (such as vs. abbr. PhD, Dr. Mr. etc.)
I don't think it's that big a thing. It's just a Minnesota statute, which apparently (I haven't studied it yet) specifically says that it's inapplicable to investigation work being done outside the state's borders, and the judge interpreted that as requiring the investigator's body to be in Minnesota at the time. So it's got no applicability outside of Minnesota, and I'm not really sure Minnesota's state courts would agree.
Ray Beckerman +5 Insightful
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