In Capitol Records v. Thomas-Rasset, the Court has denied defendant's motion to suppress the MediaSentry evidence on the ground of illegality, holding that the evidence was not obtained illegally.
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 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.
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.
June 11, 2009, Decision Ruling on On Limine Motions
[Ed. note. A silver lining in this decision is the Court's discussion of the Daubert principles, which now becomes the law of the case. Application of this thinking to Dr. Jacobson's testimony will preclude him from testifying at all. -R.B.]
Commentary & discussion:
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