Thursday, March 15, 2007

RIAA Continues to Argue that MediaSentry is "fact witness" and not "expert" witness; admits "process" is "proprietary"

In UMG v. Lindor, in response to defendant's papers showing MediaSentry giving opinions in another case and showing the complex computer printouts about which MediaSentry will be testifying in the Lindor case, the RIAA (a) claimed that the opinions were facts rather than opinions, (b) admitted that MediaSentry's processes are proprietary, (c) argued that the printouts Mr. Mizzone made are "raw data", (d) gave their own opinion that the printouts Mr. Mizzone generated prove that there was copyright infringement going on through defendant's internet access account, and (e) complained about Ms. Lindor's counsel's quoting plaintiffs' admissions from other cases.

March 14, 2007, Letter of Richard L. Gabriel (MediaSentry Protective Order Motion)*

* Document published online at Internet Law & Regulation

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

11 comments:

Alter_Fritz said...

Dear Judge Levy,
Trust me, a stupid (when it come to your profession; Law in NY) guy from germany that has absolutely nothing to do with this case, what Mr. Gabriel is telling you is complete nonsense and a misrepresentation of facts.

A paper printout (in this case even more important; from a company that is also in the business of faking content!) is never ever and would never ever considered RAW data from any serious objective expert when it comes to computer stuff like in this case!

I don't waste your time with going into detail why that is so, just see the easy for everyone to understand example why it is no RAW data in the first place: on the example that the data is manipulated to show not the IP address and username that mediasentry uses. This values must be present in the RAW data that they claim was captured! If it isn't, it isn't RAW data and an expert is needed that knows about the procedures that MediaSentry used to gather that data. Mr. Jackobson isn't such an expert since he has no knowledge about the procedures at all!

Those values are NOT present , ergo no RAW data and Mr. Gabriel tries to defraud your Honor because he thinks you are technology-/computerilliterate.

Please honorable Judges Trager and Levy, don't fall for this tricks from Plaintiffs!

AMD FanBoi said...

From the letter:

"apparently intended"
"appears to make two points"

Are they being nasty now? Or just insulting?

Also:

"show that, in fact, substantial copyright infringement was occurring"

They show, of course, nothing of the fact. All the printouts show is that a client program somewhere possibly reachable at a specified IP address that may, or may not, have pointed to the person we are suing "claimed" (the client program is claiming this, or was it a SuperNode somewhere in the chain) that the following filenames (contents unknown) might be possible to download. That does not constitute legal copyright infringement, as best I can tell, nor does it prove that this list came from the defendant's computer.

Regarding the instant messages, they don't know what computer they were ever sent to. To claim they were sent to the defendant's computer is certainly an unjustifiable reach.

Do all lawyers, except Ray, lie like this as a normal practice?

Also, AND IMPORTANTLY, at least some IM functions confirm if an IM was delivered, or not. I have no idea if KaZaA has this functionality since I've never used that program myself, nor seen it used. However, it would be worth knowing what KaZaA does when you message a user and the message is never delivered. If KaZaA gives you some sort of feedback that your message was blocked, or simply not delivered, it would sure blow a hole in the RIAA's contention that they warned the users. In fact, if they knew, or should have known, that their messages weren't being delivered and concealed this fact, that should do significant damage to their credibility overall!

ryan said...

Ray, if it would help I can shoot you an example of 'raw' data from a tool "tcpdump" which is a standard tool used in many applications. There are of course other tools out there but tcpdump seems to be a basic piece of most network administrators’ tool kits that I’ve spoken to. I work for a network monitoring company and we use it frequently. I would of course be far from an 'expert' so would still recommend you get a real one. After all SOMEONE should have a real expert in this case somewhere.

StephenH said...

I think that the RIAA is hiding all it can hide because they are afraid that the process may not hold up in court if a defendant contests it, which essentially could put their whole lawsuit campaign in jeopardy.

Additionally, what Alter_Fritz said about "Fake Files" is true also. How does MediaSentry know that someone was not sharing content that was misnamed, was a spoof, etc?

CodeWarrior said...

If they accept a graphic as evidence of ANYTHING (e.g. "screenshot"), I can provide one of flying pigs...

"What a bunch of MAROONS !"
-Bugs Bunny

zi said...

Mr. Gabriel is trying to impress upon the court this idea that "raw data" in unerring, unaltered, and incorruptible. MediaSentry's processes are internal and proprietary, so there has been no peer review and independent auditing. We have no idea concerning the reliability of their methods and investigative procedures. Improperly collected and incorrect raw data is still incorrect data, raw or processed. The term "raw data" does not mean correct and true.

Data is only as reliable as the process that created it (I'm not a grammarian, so I will not refer to "data" as a plural). If the process is wrong or inaccurate, so will the data. Thus far, we have no way of knowing how MediaSentry is collecting any of this info, so we must be skeptical as well. Dr. Jacobson admitted repeatedly in his deposition that he does not know how MediaSentry does its work either.

Larry said...

I agree with Alter_Fritz. The exhibit seemed to be the output of Media Sentry's program, which is making its own interpretation of the raw data.

I'm most familiar with open source packet capturing tools and the raw data in such cases would be a file containing the captured packets. Such a file could be analyzed by any number of tools in a repeatable way.

What the exhibit contains is analogous to a video in which one the faces has been blurred to hide the person's identity. Such a video would not be the raw footage, and without examining the raw footage it's hard to know exactly what other changes may or may not have taken place.

Ray Beckerman said...

1. Of course you guys are right that the printout is not raw data, it is a printout created by Mr. Mizzone.

2. No most lawyers don't go as low as these guys do.

Igor said...

Ray, you should hire an expert to come up with a process for to copy just the operating system to a different hard drive. Then hand over that hard drive to the RIAA claiming it's the raw data of what was on the defendant's hard drive and that they can't have access to anything else because it's a proprietary process. Better yet, open one of the binary files in a text editor, print it out and hand that over. (Though I doubt you'd be able to keep from laughing while saying 'Yes, this raw data.').

Seriously though, ryan, I think based on the documents with the Jackobson deposition that they use Windows and not Linux...which means they use some alternative for tcpdump and not tcpdump itself (unless they have another machine in the middle running tcpdump that they haven't said anything about).

Ray, in order to introduce the documents as evidence, don't they need to prove their authenticity (that they are fair and accurate representations of the raw data)? And in order for the expert to base his opinion off of them doesn't it have to be the sort of information upon which an expert in the field would normally relies on?--That is, I bet you could thousands computer scientists to stand up on the stand and say they don't normally rely on edited screen shots nor on a proprietary process they know nothing about.

CodeWarrior said...

I've never understood why MP3 files are copyright infringement anyway. They should be considered "fair use", i.e. representative clips of material that suggests the sense of the original. Certainly, they are not true and full copies of the original, copyrighted material, owing to the fact that, by definition and format, MPEG files are LOSSY compression, and the original copyrighted works were NOT in MP3 format. Number two, they are only 1s and 0s...was the original copyrighted material in a 1s and 0s format identical to the MP3 files.

Of course, one may say that what was copyrighted were the words and the tune...but , 1s and 0s may, to the ear, SOUND like words and tunes, but in a very real sense, they are not anymore the actual words and tunes, than a robot is a real, natural person, even if it looks and sounds like a real person.

Perhaps, a live band, performing the material without the permission of the copyright holder, would be the closest thing to actual copyright infringement, and perhaps, since I am not a lawyer nor play one on TV, it would be clear to a legal mind, a trained attorney, but certainly, these are actual questions to me, and the questions seem far more serious and relevant to me, than they may to some at first blush.

I got off topic, but Ray, I sincerely would like your take on this.

As an admin at Boycott-RIAA who has written ad nauseum on this topic,and as someone who has registered copyrights on their own works , I think it is fundamental.

~Code

ryan said...

The mp3 as compressed data one although great to us CS peeps is one I really doubt a Judge will agree on. It's hard to listen to an mp3 and the cd and say they aren't the same as a good percentage of the population can barely tell the difference and they are VERY similar. As is it could probably be called a derivative work most likely. I would think it would be hard to get either Judge or Jury to agree on the technical side. Of course that doesn't necessarily mean it's not true but I think it would be a VERY hard sell.

On the tcpdump I was more in the mode of “might be educational to see” mode than any view of what they have. Given they are a proprietary software there is nothing that could true-fully reproduce those logs w/o using the same system. Besides they are decoding part of the payload, and depending on how that payload goes across, you need to interpret it which of course takes expertise...