Judge OK's MediaSentry Evidence, Limits Defendant's Expert 283
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."
Re:Could be a victory (Score:5, Informative)
Assuming the judge applies those standards evenly
In your experience, is this generally the case?
Yes. If the judge says 'this is the rule we're going to play by' then that's the rule.
Re:Could be a victory (Score:5, Informative)
I'm not too happy about the ruling that MediaSentry evidence was legally obtained.
Me neither. But I'm not familiar with the Minnesota statute and caselaw. I'm sure that with most state licensing statutes, the result would be otherwise.
Re:Could be a victory (Score:5, Informative)
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.
Re:really stupid question (sorry) (Score:5, Informative)
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.
Re:Unleash the hounds! (Score:5, Informative)
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?
Re:Could be a victory (Score:3, Informative)
Re:Could be a victory (Score:5, Informative)
Re:Unleash the hounds! (Score:5, Informative)
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:
Re:Could be a victory (Score:5, Informative)
When considering the reliability and relevance of expert testimony, the
Court may examine "whether the theory or technique is subject to testing,
whether it has been tested, whether it has been subjected to peer review and
publication, whether there is a high known or potential rate of error associated
with it, and whether it is generally accepted within the relevant community."
MediaSentry's evidence is admissible but their "expert" testimony w/re /.ers would say no
to the theory/techniques behind the evidence will never satisfy those requirements.
subject to testing: yes
been tested: yes*
peer review: afaik none*
publication: afaik none*
high known or potential rate of error: yes
generally accepted:
Obviously it is better to shut the door on MediaSentry completely,
but technical evidence with no expert testimony to support it is essentially useless.
*or at least none validating their method.
Re:Unleash the hounds! (Score:3, Informative)
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.
Re:Unleash the hounds! (Score:3, Informative)
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.
Re:Could be a victory (Score:5, Informative)
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.
Re:Could be a victory (Score:1, Informative)
Considering their apparently complete lack of any chain of custody controls, yes. Tracing an IP to its source and tracing an IP to its source in a court-approved, evidential standard way are not the same thing.
Re:Innocent until proven guilty (Score:3, Informative)
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.