MediaSentry OK in RIAA v Thomas
p2pnet news view RIAA | P2P:- On the face of it, things look as though they’ve taken a definite downward turn for Jammie Thomas-Rasset and her lawyer, Kiwi K.A.D. Camara.
They’d wanted MediaSentry evidence suppressed. But judge Michael Davis has said No.
MediaSentry is the discredited RIAA investigator bought by SafeNet Digital Rights Management for $20 million in 2005, and, after being fired by the RIAA, this year, sold to a rival firm for $136,000 in cash and a promise of $800,000 at another time.
Jammie, a First Nations mother of four, is in turn another of the 40,000 or so innocent Americans said by Vivendi Universal, EMI, Warner Music and Sony Music’s RIAA to be an infringer of copyrighted music.
She’s already been run through the mill by RIAA lawyers in a trial in which Davis later admitted he’d committed a, “manifest error of law” by telling the jury the, “act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without licensefrom the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown”.
For the second trial, slated to open on June 15, Davis turned down Jammie and Kiwi’s motion to suppress the MediaSentry evidence, saying it wasn’t obtained illegally.
States Ray Beckerman in Recording Industry vs The People (RIvTP) »»»
The Court also partially granted and partially denied the RIAA’s motion to exclude the testimony of defendant’s expert witness, ruling that he would not be permitted to testify on some of the subjects touched upon in his report.
Judge Davis ruled that Prof. Kim could testify about the “possible scenarios”, but could not opine as to what he thing “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.
Additionally, the Court granted the plaintiffs’ motion to preclude defendant’s assertion of a “fair use” defense, since “fair use” had never been pleaded in defendant’s answer or otherwise brought up by her previous attorneys.
The Court denied the motion to preclude defendant’s reference to other cases, but reminded the parties that they are required to adhere to the Federal Rules of Civil Procedure and the Federal Rules of Evidence.
Without opposition, the Court further ruled that the prior trial would be referred to as a “prior proceeding” and that no reference would be made to the outcome of that trial, and that defendant would not interpose an innocent infringement defense.
The silver lining
Davis’ ruling has, it appears on a quick first look, cast a very dark cloud.
But perhaps not, says Beckerman.
The decision on the expert testimony, “could actually be a major win for the defendant,” he told p2pnet, going on »»»
The judge devoted two pages of his decision to carefully describing the standards for admissibility of technical and expert testimony.
Those standards are now the “law of the case”, which means they’re the operative rule going forward.
Assuming the judge Davis will apply those standards to MediaSentry and Doug Jacobson, which he’s required to do, I’d anticipate the testimony of neither will be admissible.
Which means that the RIAA’s entire case goes down the drain, and the RIAA won’t even get through the first phase of the trial.
So this ruling may have been a major victory for Jammie.
Dr Doug Jacobson has already crossed swords not only with Ray, who called his testimony ‘junk science,’ but also with Dutch P2P expert and visiting scientist at Massachusetts Institute of Technology (MIT) Dr Johan Pouwelse.
Pouwelse found Jacobson’s testimony to be “borderline incompetent,” and his allegations of copyright infringement levelled a 57-year-old (at the time) New York home health aide and RIAA victim Marie Lindor “unproven”.
Assistant professor Yongdae Kim of the University of Minnesota is a specialist in group and network security, and an expert witness for Jammie.
The Daubert Principles
The original Daubert decision, says Michigan Adopts Daubert Principles and Evidence-Based Expert Testimony: Revised MRE 702 and 703, in part, offer the following basic tests for, “admissibility of an expert opinion, related to the underlying theory or technique employed by the expert” »»»
• Has the theory or technique been tested?
• Has the theory or technique been subjected to peer review and publication?
• Is there a known potential rate of error?
• Are there existing standards or controls?
• Is the theory or technique generally accepted within the relevant professional community?
Beyond these original Daubert factors, subsequent decisions have established additional parameters for the admissibility of expert opinion. For example, in General Electric v Joiner, the U.S. Supreme Court held that Daubert applies equally to the application of the underlying theory or technique (i.e., the third prong of the new standards). The application of theory to fact is particularly significant on issues of causation, as noted in Gilbert …
Definitely stay tuned.
Jon Newton – p2pnet
June, 2009
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June 12th, 2009 at 11:57 am
This is not as dire as it would seem.
Quoting RB from his site .
” It could mean victory for Jammie.
The judge described the Daubert standards quite carefully.
Neither MediaSentry nor Jacobson will be able to satisfy those standards, which means that their testimony, and MediaSentry’s documents, will not be admissible.
Which means the RIAA’s case will be dismissed at the close of the plaintiffs’ case. ”
By allowing this testimony, this forces these two buttheads to endure Daubert scrutiny, which
they will ( or should ) fail miserably. If they fail daubert here they will be useless in EVERY OTHER CASE
THEY ARE INVOLVED IN.
Not allowing their testimony would stall such a crucial examination, allowing them to bullshit other judges.
June 12th, 2009 at 12:22 pm
@ Dreddsnik
This is not as dire as it would seem.
And that is exacxtly the point of this story
June 12th, 2009 at 6:26 pm
Good! Hopefully this is a judge with a brain who has not be corrupted by the RIAA.
I hope!
By the way El Quada is running out of money. Hopefully the copyright terrorists should be running out of money soon as well.
Just a though.