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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.
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.
"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.
Apparently, you have no clue as to the law. Licensing of Private Investigators takes place on the state, and some times even lower, level. The judge ruled that MediaSentry did not break the Minnesota law because they never entered the state, have no employees in the state, never engaged in PI behavior in the state, etc.
In other words, Minnesota law does not apply to people OUTSIDE of Minnesota.
Also, MediaSentry argued that the data they did gather was provided by the respondent's computer during the normal course of downloading the data. In other words, they looked at the IP address of requesting computer. Or, do you contend that Slashdot is being a private investigator by logging the IP address your post from?
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
This is slashdot. Nobody here gets fucked.
Similar to the upcoming US election results
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.
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."
Nope. Because of the joys of the internet, they never had to physically go into Minnesota. They didn't even have to access the computer in Minnesota because Kazaa provides identifying information about the source of the files, including the IP address.
Here is the judges determination:
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
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.
what if they do one right after the other?
No, you don't. But you do need to pay any use tax in your home state, which is usually equal to its sales tax. In the states I'm aware of, you're legally required to self-report these sales to the state and pay along with your income tax at the end of the year.
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.
As support, I would look to the Amateur Action BBS case where the operator in CA was prosecuted in another state for delivering a pr0n file.
It was not collected in Minnesota, therefore Minnesota law does not apply.
Much, maybe most, private investigation occurs over the internet today. If one can investigate in Minnesota, and use the 'fruit' of the investigation in a Minnesota courtroom against a Minnesota resident, it is unlikely that the State of Minnesota is powerless to regulate such conduct. I'm skeptical that that part of the Judge's rule would stand up to scrutiny.
Interestly it may become a moot point, because if the Judge correctly applies the Daubert standards to MediaSentry, its materials will be excluded in any event.
Ray Beckerman +5 Insightful
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
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
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/
Whether it's the prosecution, or a plaintiff, they still need to prove their case.
Whereas with trial by DaveV1.0, it seems you just need to be accused.
Whether it's the prosecution, or a plaintiff, they still need to prove their case. Whereas with trial by DaveV1.0, it seems you just need to be accused.
Correct. Even when a defendant defaults, the plaintiff is required to submit competent evidence to support its right to a judgment.
Ray Beckerman +5 Insightful