Recording Industry vs The People: Jacobson Deposition Exhibits Now Online

Saturday, March 03, 2007

Jacobson Deposition Exhibits Now Online

Just to let everyone know that the exhibits to the Jacobson deposition, including the MediaSentry text files, are now online, along with the transcript.

http://recordingindustryvspeople.blogspot.com/2007/03/deposition-of-riaas-expert-available.html

Commentary & discussion:

Slashdot
McGrew Security

The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

10 comments:

Alter_Fritz said...: maybe you should send those guys at /. and groklaw a "thanks guys, thats what i got from him" posting?!; March 3, 2007 at 1:09:00 PM EST
raybeckerman said...: There's no maybe about it. I did submit posts at Slashdot and Groklaw the same day I got the transcript... but they haven't been published (yet). Here's what I wrote:
*************************************
"The online community now has an opportunity to see the fruits of its labor. Back in December, the Slashdot ("What Questions Would You Ask an RIAA "Expert"?") and Groklaw ("Another Lawyer Would Like to Pick Your Brain, Please") communities were asked for their input on possible questions to pose to the RIAA's "expert", Dr. Doug Jacobson of Iowa State University, who was scheduled to be deposed in February in UMG v. Lindor, for the first time in any RIAA case. Ms. Lindor's lawyers were flooded with about 1400 responses. The deposition of Dr. Jacobson went forward on February 23, 2007, and the transcript is now available online (pdf). For those who would like an ASCII text version they can cut and paste, go here. Ray Beckerman, one of Ms. Lindor's attorneys, had this comment: "We are deeply grateful to the community for reviewing our request, for giving us thoughts and ideas, and for reviewing other readers' responses. Now I ask the tech community to review this all-important transcript, and bear witness to the shoddy "investigation" and 'junk science' upon which the RIAA has based its litigation war against the people. The computer scientists among you will be astounded that the RIAA has been permitted to burden our court system with cases based upon such arrant and careless nonsense.""; March 3, 2007 at 2:06:00 PM EST
raybeckerman said...: Thanks, dave.

rufus and scott: this isn't about HRO or Richard Gabriel or Colorado. The RIAA will dump them just like it dumped Mitchell Silbergerg & Knupp and Shook Hardy & Bacon. There are always attack dogs available for hire.

It doesn't help to make this personal.; March 3, 2007 at 8:37:00 PM EST
John Newlin said...: Good stuff Ray.

It must be frustrating getting the same canned answer over and over:

"I know that the computer associated with that address was used."

Hopefully the judge can make him answer the question...; March 4, 2007 at 12:15:00 AM EST
Anonymous said...: I would like to point out a few things that might be useful. I am posting this here to avoid the signal-to-noise ratio problems that tend to arise on /.

1. The Windows registry keeps a record of MAC address of each network adapter installed in the host machine.

2. The windows registry keeps a record of the most recent DHCP assigned IP address for each DHCP configured network adapter in the host machine.

3. In a DHCP configured network, it is possible through DHCP server error conditions that more than one host may have the same IP address, even without any intentional spoofing.

4. Spoofing is possible in any network, DHCP or not.

5. In the event of IP address duplication (either intentional or accidental), the host most likely to receive packets addressed to the IP address is the one that has used it most recently.

6. A host that configures it's IP address with DHCP has no IP address at the time of the request, configuration information is returned to it's MAC address.

7. I don't know what Verizon's DHCP logs look like, but it seems reasonable that MAC address of lease requestor would be available.

8. If the MAC address is available from Verizon's logs, then it can be compared to the MAC address(es) present in the windows registry.

9. The assumption that the logged "source IP" and "Kazaa IP" being the same proves no NAT device is not well founded.
9.1 The client application could discover it's external IP address and provide that address in the payload.
9.2 The client application could allow the user to provide the Kazaa IP value used in the payload.

10. There is no requirement that private IP addresses be used behind a NAT device, it is only a recommended best practice.

These are just a few things that jumped out at me while reading the deposition. In my opinion, the expert witness was either biased in his investigation, or totally incompetent to perform such work. The testimony also suggests an utter disregard for scientific process.; March 4, 2007 at 2:57:00 AM EST
EagleEye said...: DHCP Addresses are stored in Windows registry. Run program "regedit" and do search for "DhcpIPAddress" or, if it was static, look in same pane for "IPAddress" key. ;); March 4, 2007 at 4:46:00 AM EST
raybeckerman said...: rufus

do you want me to email you back your comment so you can edit it to take out the personal stuff

if so send me your email address

i'm at musiclitigation@earthlink.net; March 4, 2007 at 11:51:00 AM EST
raybeckerman said...: by the way, slashdot did publish my post

it's at

http://yro.slashdot.org/
yro/07/03/03/237211.shtml; March 4, 2007 at 11:53:00 AM EST
Anonymous said...: ja, groklaw did it too ;-)

http://www.groklaw.net/article.php?story=20070302073736822; March 4, 2007 at 12:12:00 PM EST
raybeckerman said...: john, i wasn't frustrated... you've got to be kidding... i was thrilled...

dear anonymous, thanks for your detailed take on things... we'll look at it closely...

thanks, anonymous...you're right... both Groklaw and Slashdot have the followup stories now....; March 5, 2007 at 10:55:00 PM EST

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove