p2p news / p2pnet: “Infringed copyright” isn’t as sexy as “illegally downloaded music”. But the first is where it’s at while the second is pure Big Four record label cartel spin-speak.

Expert testimony submitted to a New York court in Atlantic Recording v John Does 1-25, involving allegations of copyright infringement, suggests the cartel’s RIAA isn’t above applying tactics it usually gets away with in the mainstream media to the US legal system.

The RIAA’s (Recording Industry Association of America) Jonathan Whitehead was apparently trying to use a verbal version of the shell game. However, programmer Zi Mei caught him at it.

“Whitehead shot himself in the foot with his latest declaration,” he told p2pnet. “He asserts that all Does are Gnutella users, directly contradicting earlier testimony, which included pages of Kazaa screenshots.

“This demonstrates that he either doesn’t have a clue what he’s talking about, or that he’s simply inventing evidence and switching to Limewire after we totally destroyed him on the Kazaa stuff, hoping no one would notice.

“It’s obvious that Mr. Whitehead doesn’t know Kazaa from a kazoo either, or he’s simply pretending he doesn’t. The RIAA’s ‘investigative’ techniques are sloppy and harmful, to say the least.”

Below, as promised, is Mei’s affidavit as handed in to the court yesterday >>>>>>>>>>>>>>>>>>>>>>>

UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK

ATLANTIC RECORDING CORPORATION, et al., Plaintiffs,

-against-

DOES 1-25, Defendants.

No. 05 CV 9111 (LTS)(DFE)

REPLY AFFIDAVIT

STATE OF NEW YORK )

) ss.:

COUNTY OF NEW YORK )

ZI MEI, being duly sworn, deposes and says:

1. In the Second Declaration of Jonathan Whitehead dated January 23, 2006, Mr. Whitehead states that “all of the Doe Defendants in this case are users of the Gnutella network.” 4. This is a claim of great technical significance because it directly contradicts earlier evidence that plaintiffs submitted, which show Kazaa screenshots. (See Exhibit 1 to “First” Whitehead Declaration dated October 21, 2005). Further, Mr. Whitehead makes no attempt to substantiate that any of the 25 Doe defendants actually uses a Gnutella-compatible peer-to-peer program. He provides no screenshots, usernames, software version numbers, or even the names of the different Gnutella-compatible programs. All this would have been easily obtained through basic observation and investigative techniques.

2. Kazaa and Limewire are two completely different programs. They use different technologies, have different graphical interfaces, and are not interoperable. Kazaa uses the FastTrack network and Limewire uses Gnutella. Kazaa users cannot connect to Limewire users and Limewire users cannot connect to Kazaa users. Quite simply put, it is just technically impossible for this to happen.

3. Mr. Whitehead cannot simply switch the names of software or P2P networks to suit his purposes. That he has done so in his second declaration should cast clear doubt as to his credentials and competence to testify on technical matters. If Mr. Whitehead has deliberately and knowingly switched the names of these two software applications in an attempt to mislead the Court and reconcile flaws in his earlier testimony, then it casts clear doubt as to his integrity.

4. Mr. Whitehead betrays either confusion or ignorance of how decentralized P2P networks like FastTrack (Kazaa) and Gnutella (Limewire) actually work. In such networks, there are no central servers to store user information, manage user connections, or handle searches and file transfers between users. Instead, the load of cataloging files and performing searches is distributed among its members. This is in contrast to the more well known Napster network, which
relied upon a centralized network of servers to catalog files shared by users and manage interactions between them. Napster had a single point of failure: shut down the servers and the network dies.

5. In place of centralized servers, Gnutella and FastTrack create a hierarchical structure, designating some users as “ultrapeers” (in the case of Kazaa, they are called “supernodes”). These are users with fast computers and fast internet connections (broadband). Ultrapeers act as traffic cops or group leaders. All the other users are known as “leaves”. These are users with slower computers and slow internet connections like dial-up and certain kinds of DSL, or clogged broadband connections. All search queries are routed to ultrapeers, which then perform the requested search. This hierarchy greatly improves network performance and prevents bottlenecks by reducing network traffic.

6. When a leaf connects to an ultrapeer, the leaf sends to the ultrapeer a list of hashes corresponding to file names and metadata for all files in the leaf’s shared folder. The ultrapeer then adds this data to the ultrapeer’s master index. The transfer of the leaf’s hash data to the ultrapeer does not involve the uploading of any files from the leaf’s shared folder to the ultrapeer. Only the hash data is transferred to the ultrapeer, not the files themselves. Because the ultrapeer’s hash data is an aggregate of all hash data collected from its leaves, the ultrapeer responding to a search request may simply be providing a list of files that actually reside on other computers, not the ultrapeer.

7. The “UserLog” attached to the Second Whitehead Declaration does not indicate whether the computers linked to the IP addresses allegedly associated with defendants are ultrapeers or leaves. Since the ISP from which plaintiffs seek defendants’ identities is Mediacom, a high-speed cable internet provider, it would appear that if any of those computers were linked to Gnutella at all (plaintiffs’ original application was based on a series of screenshots from Kazaa, a program incompatible with and incapable of getting onto the Gnutella network), it was as ultrapeers rather than as leaves. For this reason, even if plaintiffs could demonstrate that the IP addresses allegedly associated with defendants were the IP addresses through which plaintiffs obtained the information in the userlog, it is just as likely that the files were actually residing on various leaf computers of other users that were simply using defendants’ computers to index those files. Plaintiffs’ userlog thus does not provide any evidence of copyright infringement.

8. Moreover, Mr. Whitehead still has not even attempted to explain the process through which plaintiffs allegedly obtained the IP addresses allegedly associated with defendants. Therefore, there is no basis for even assuming that the userlog or any of plaintiffs’ other submissions even relate to defendants.

9. Finally, plaintiffs argue that “[t]hough theoretically P2P users could put their own personal files into a share directory, there is simply no logical reason to do so.” Plaintiffs’ Opposition, p. 14. From this, plaintiffs argue that an inference can be drawn that the files in a shared folder, especially music files, must have been downloaded illegally rather than legally copied onto one’s computer from compact discs or from legal downloads. (Interestingly, this argument is made by plaintiffs’ attorneys in a unsworn opposition memorandum and not by Mr. Whitehead). In reality, it is completely understandable how legally copied music files would come to be inside a shared folder. It is very easy for unsophisticated users of P2P software to unwittingly include their entire hard drive and thus music files that were legally copied onto that hard drive from CDs, etc. in the shared folder. Mr. Whitehead’s own organization, the RIAA, recognized this in comments it filed with the Federal Trade Commission.

As an initial matter, P2P software may, upon installation, automatically search a user’s entire hard drive for content. Files that users have no intention of sharing may end up being offered to the entire P2P network. Continued sharing of personal information is hard to avoid and is facilitated by confusing and complicated instructions for designating shared items. A study by Nathaniel S. Good and Aaron Krekelberg at HP Laboratories showed that “the majority of the users were unable to tell what files they were sharing, and sometimes incorrectly assumed they were not sharing any files when in fact they were sharing all files on their hard drive.”

See Peer-to-Peer File-Sharing Technology: Consumer Protection and Competition Issues; P2P File-Sharing Workshop Comment, P034517; Comments of The Recording Industry Association of America (RIAA), November 15, 2004, pp. 8-9 (footnotes omitted) (Exhibit “A” hereto). The inference suggested by plaintiffs is wholly unwarranted and cannot be drawn since it contradicts how P2P software actually works.

ZI MEI

Also See:
as promised – Sloppy RIAA ‘investigation’ attacked, February 7, 2006

This entry was posted on Wednesday, February 8th, 2006 at 10:05 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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