The ars article talks about MediaSentry needing a Minnesota license, fair use defense, expectation of privacy, and wiretapping laws. This summary talks about rules of evidence;
402 Irrelevance
403 Prejudice, Confusion, Waste of Time
602 Lack of Personal Knowledge
702 "Testimony by experts" (fact testimony or opinion testimony based upon "scientific, technical, or other specialized knowledge" must be based on sufficient facts or data, must be product of reliable principles and methods, and principles and methods must have been applied reliably to the facts of the case")
802 Hearsay
IANAL, but those seem quite different.
Yes those are quite different. The Ars article refers to this ruling, which deals only with the motion to suppress on the ground of illegality, and has nothing to do with the evidentiary objections that defendant filed.
I was aware of the article and, more importantly, of the ruling to which it refers. That related solely to the motion to suppress on the ground of illegality; it had nothing to do with the Rule 702 objection.
Why are transcripts not "freely" available to the public?
It's the system that has evolved; the court reporters and/or court reporting agencies make their living from selling the transcripts, in order to spare taxpayers the expense. Now that, with the advent of electronic filing of litigation documents, we have seen the importance of public access, maybe the system will change for transcripts one of these days. I certainly hope it does.
I notice that those transcripts were posted on your blog more than a year after the trial itself. We Slashdotters are used to practically instant access to everything, so I'm curious: what takes so long for such transcripts to become available?
Regrettably, trial transcripts are not public. Someone has to buy one. In this particular case the transcript cost more than $2000. I got some friends to contribute the money, and ordered it, but the court reporter went on maternity leave, and then there were other delays, I know not why. Eventually I returned the money to the friends. Subsequently, someone else bought the transcript, and provided me with a copy.
Maybe that has to do with his contempt of **AA lawers and thier tactics.
I have more than enough of that to go around, but there is none of that in my summary. All I was saying in the summary was demonstrably factual. At the first trial the defendant did not have an expert witness of her own, and did not challenge the RIAA's technical evidence under Rule 702. This time she does have an expert of her own, and has already challenged the RIAA's technical evidence under Rule 702. From that I extrapolate that last time the RIAA's technical evidence got a "free ride" or a "free pass", and that this time it will not. How can anyone dispute the accuracy of those facts, or argue against the terminology "free ride" or "free pass". If the defendant does not challenge the evidence offered by the plaintiff, it goes in.
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.
I agree that it sucks that this verdict is likely to destroy her financially, but remember that the whole point of laws and lawsuits is to serve as a deterrent.
Not if you're familiar with the legislative history of statutory damages under the Copyright Act, which made it clear that it was primarily for the purpose of providing "compensation" to the aggrieved copyright holder where "damages" and/or "profits" were difficult or impossible to prove. You might want to bone up. A good article is this recent working paper by Pamela Samuelson and Tara Wheatland.
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, perhaps you can clear something up for me. From the description above, it sounds like MediaSentry only collected the IP address from the tracker, they didn't attempt to initiate a connection. If this is the case, then their evidence is hearsay (they don't know that the IP address was part of the swarm, they only know that the tracker told them that it was). Worse, companies - like MediaSentry themselves - have been employed in the past to connect to trackers with spoofed IP addresses so that clients attempting to download pirated material will waste time trying to connect to peers that aren't really there. Without establishing a connection, there is no way of knowing that this record is not just one RIAA minion finding the false trail laid down by another.
This is where I make people mad at me.
MediaSentry's 'evidence' is, IMHO, inadmissible on a number of grounds.
I can't give specifics, because I haven't litigated them yet. Can't telegraph to the RIAA dogs what I have in mind.
Legal expertise....Technical understanding....Humor...Not Evil...
I was right last time! You aren't human! Boy did you pick the wrong set of professions to try and blend in here on earth. *EVERYONE* knows that here on earth lawyers are pure evil and technical people are grumpy humorless bastards. Where are you from!? When does the invasion start?!...... Where do I sign up to be a minion to survive?
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.
if the judge applies the standards he described to MediaSentry and Jacobson, case closed, Jammie wins.
That is the second time you have said that. Provide proof of that statement or admit you are just making it up.
I think you would benefit from a course in logic. It is not a "statement", it is a "prediction" as to what in my "opinion" will occur "if the judge applies the standards he described". I don't know how you can "prove" something like that.
My basis for the opinion and prediction is (a) I have studied the law in this area, (b) I have examined Dr. Jacobson in a deposition in which he conceded that none of the Daubert reliability factors were met by himself, (c) he likewise conceded that none of the Daubert reliability factors were met by MediaSentry, (d) his opinion was admittedly based exclusively on the MediaSentry work product, and (e) he had no idea how MediaSentry had procured that work product.
Normally in a federal court such "evidence" would be ruled inadmissible.
If Judge Davis applies the standards enumerated at pages 13-14 of his decision to MediaSentry and Jacobson, they will not even be permitted to take the stand in the jury's presence.
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.
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?
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.
I'm not familiar with the Minnesota statute and caselaw.
So... YANAML?
Certainly IANAML. IAANYCL. But it's not necessary to be AML in order to be familiar with a Minnesota statute and caselaw. I could research those from my desk. I just haven't.
Ray, where are you Ray? It's been a half hour, Ray! Ray, we were going to stop the RIAA together, remember Ray? Remember?
I'll just wait outside your office until morning and get an update from you.
I was there. Where were you?
Maybe you were waiting at the wrong comic book store.
I waited as long as I could, and then went drinking.
OK I'll expect you at my office bright and early. See you then. But if you miss that appointment too, then just forget it. I can't partner with someone unreliable.
I don't agree with the decision on the Minnesota statute, but truthfully I'm not familiar with the statute or caselaw. Under NY law I believe the result would be different.
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?
You should be modded +5 for asking one of the best questions I've ever received on Slashdot.
Answer: the preliminary questioning of the expert is done before the judge, out of the presence of the jury, and is called a 'voir dire' [same term that's used for jury questioning]; if the judge rules his testimony is totally inadmissible, he never gets to testify before the jury; if the judge rules it is admissible, then he gets to testify in the presence of the jury.
Please, make up your mind and tell me how to properly react to this already.
eldavojohn, you're a cool guy, you can figure it out.
But seriously... 1. most of the rulings are totally right down the middle and easily anticipated 2. the ruling on the MediaSentry is bad, but it's not applicable to the other 49 states 3. the ruling on the expert is ok except for the part about NAT 4. if the judge applies the standards he described to MediaSentry and Jacobson, case closed, Jammie wins.
So it all boils down to whether he applies the same rule; and he appears to be a fairminded Judge, so I would say this portends a victory for the good guys.
Slashdot Mirror
The ars article talks about MediaSentry needing a Minnesota license, fair use defense, expectation of privacy, and wiretapping laws. This summary talks about rules of evidence; 402 Irrelevance 403 Prejudice, Confusion, Waste of Time 602 Lack of Personal Knowledge 702 "Testimony by experts" (fact testimony or opinion testimony based upon "scientific, technical, or other specialized knowledge" must be based on sufficient facts or data, must be product of reliable principles and methods, and principles and methods must have been applied reliably to the facts of the case") 802 Hearsay IANAL, but those seem quite different.
Yes those are quite different. The Ars article refers to this ruling, which deals only with the motion to suppress on the ground of illegality, and has nothing to do with the evidentiary objections that defendant filed.
Ars posted a story days ago with better information than what the summary contains. The judge has already allowed the MediaSentry evidence and isn't buying most of the defense's excuses. I like NYCL a lot, but I am surprised he wasn't aware of that. http://arstechnica.com/tech-policy/news/2009/06/thomas-judge-bars-fair-use-defense-oks-mediasentry-evidence.ars
I was aware of the article and, more importantly, of the ruling to which it refers. That related solely to the motion to suppress on the ground of illegality; it had nothing to do with the Rule 702 objection.
And why are you replying to someone who replied to a troll, giving more attention to this thread, and therefore to the original troll?
I never said I was the brightest light in the firmament.
(sigh)
Why are transcripts not "freely" available to the public?
It's the system that has evolved; the court reporters and/or court reporting agencies make their living from selling the transcripts, in order to spare taxpayers the expense. Now that, with the advent of electronic filing of litigation documents, we have seen the importance of public access, maybe the system will change for transcripts one of these days. I certainly hope it does.
in civil court, evidence obtained illegally is admissable so long as none of the parties or their counsel were involved in the crime
The fact pattern you posit would not be applicable here; both the parties and their counsel were involved.
I notice that those transcripts were posted on your blog more than a year after the trial itself. We Slashdotters are used to practically instant access to everything, so I'm curious: what takes so long for such transcripts to become available?
Regrettably, trial transcripts are not public. Someone has to buy one. In this particular case the transcript cost more than $2000. I got some friends to contribute the money, and ordered it, but the court reporter went on maternity leave, and then there were other delays, I know not why. Eventually I returned the money to the friends. Subsequently, someone else bought the transcript, and provided me with a copy.
Maybe that has to do with his contempt of **AA lawers and thier tactics.
I have more than enough of that to go around, but there is none of that in my summary. All I was saying in the summary was demonstrably factual. At the first trial the defendant did not have an expert witness of her own, and did not challenge the RIAA's technical evidence under Rule 702. This time she does have an expert of her own, and has already challenged the RIAA's technical evidence under Rule 702. From that I extrapolate that last time the RIAA's technical evidence got a "free ride" or a "free pass", and that this time it will not. How can anyone dispute the accuracy of those facts, or argue against the terminology "free ride" or "free pass". If the defendant does not challenge the evidence offered by the plaintiff, it goes in.
(sigh) Why do I feed the shills....
That's what I want to know. Why would you bother responding to an AC RIAA troll who deliberately misquoted the summary?
(sigh)
Any chance that at least a transcript or audio recording will become available, eventually?
Undoubtedly a transcript will become available eventually. Here is the transcript of the first trial.
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.
I agree that it sucks that this verdict is likely to destroy her financially, but remember that the whole point of laws and lawsuits is to serve as a deterrent.
Not if you're familiar with the legislative history of statutory damages under the Copyright Act, which made it clear that it was primarily for the purpose of providing "compensation" to the aggrieved copyright holder where "damages" and/or "profits" were difficult or impossible to prove. You might want to bone up. A good article is this recent working paper by Pamela Samuelson and Tara Wheatland.
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, perhaps you can clear something up for me. From the description above, it sounds like MediaSentry only collected the IP address from the tracker, they didn't attempt to initiate a connection. If this is the case, then their evidence is hearsay (they don't know that the IP address was part of the swarm, they only know that the tracker told them that it was). Worse, companies - like MediaSentry themselves - have been employed in the past to connect to trackers with spoofed IP addresses so that clients attempting to download pirated material will waste time trying to connect to peers that aren't really there. Without establishing a connection, there is no way of knowing that this record is not just one RIAA minion finding the false trail laid down by another.
This is where I make people mad at me.
MediaSentry's 'evidence' is, IMHO, inadmissible on a number of grounds.
I can't give specifics, because I haven't litigated them yet. Can't telegraph to the RIAA dogs what I have in mind.
Legal expertise....Technical understanding....Humor...Not Evil... I was right last time! You aren't human! Boy did you pick the wrong set of professions to try and blend in here on earth. *EVERYONE* knows that here on earth lawyers are pure evil and technical people are grumpy humorless bastards. Where are you from!? When does the invasion start?!...... Where do I sign up to be a minion to survive?
Just shut up and bring me to your leader.
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.
if the judge applies the standards he described to MediaSentry and Jacobson, case closed, Jammie wins.
That is the second time you have said that. Provide proof of that statement or admit you are just making it up.
I think you would benefit from a course in logic. It is not a "statement", it is a "prediction" as to what in my "opinion" will occur "if the judge applies the standards he described". I don't know how you can "prove" something like that.
My basis for the opinion and prediction is (a) I have studied the law in this area, (b) I have examined Dr. Jacobson in a deposition in which he conceded that none of the Daubert reliability factors were met by himself, (c) he likewise conceded that none of the Daubert reliability factors were met by MediaSentry, (d) his opinion was admittedly based exclusively on the MediaSentry work product, and (e) he had no idea how MediaSentry had procured that work product.
Normally in a federal court such "evidence" would be ruled inadmissible.
If Judge Davis applies the standards enumerated at pages 13-14 of his decision to MediaSentry and Jacobson, they will not even be permitted to take the stand in the jury's presence.
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.
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.
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?
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.
I'm not familiar with the Minnesota statute and caselaw.
So... YANAML?
Certainly IANAML. IAANYCL. But it's not necessary to be AML in order to be familiar with a Minnesota statute and caselaw. I could research those from my desk. I just haven't.
Ray, where are you Ray? It's been a half hour, Ray! Ray, we were going to stop the RIAA together, remember Ray? Remember? I'll just wait outside your office until morning and get an update from you.
I was there. Where were you?
Maybe you were waiting at the wrong comic book store.
I waited as long as I could, and then went drinking.
OK I'll expect you at my office bright and early. See you then. But if you miss that appointment too, then just forget it. I can't partner with someone unreliable.
I don't agree with the decision on the Minnesota statute, but truthfully I'm not familiar with the statute or caselaw. Under NY law I believe the result would be different.
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?
You should be modded +5 for asking one of the best questions I've ever received on Slashdot.
Answer: the preliminary questioning of the expert is done before the judge, out of the presence of the jury, and is called a 'voir dire' [same term that's used for jury questioning]; if the judge rules his testimony is totally inadmissible, he never gets to testify before the jury; if the judge rules it is admissible, then he gets to testify in the presence of the jury.
Please, make up your mind and tell me how to properly react to this already.
eldavojohn, you're a cool guy, you can figure it out.
But seriously...
1. most of the rulings are totally right down the middle and easily anticipated
2. the ruling on the MediaSentry is bad, but it's not applicable to the other 49 states
3. the ruling on the expert is ok except for the part about NAT
4. if the judge applies the standards he described to MediaSentry and Jacobson, case closed, Jammie wins.
So it all boils down to whether he applies the same rule; and he appears to be a fairminded Judge, so I would say this portends a victory for the good guys.