Tuesday, June 16, 2009

Dr. Jacobson's testimony this morning

Dr. Jacobson continued to testify regarding the forensic examination of defendants hard drive. He described his basic process, using EnCase software. He testified that the computer had numerous references to the tereastarr username, such as on online websites such as match.com and yahoo e-mail. He also testified that numerous music files were found on the hard drive, most in wma format, but a handful in mp3 format. He found that all of these files had dates after the date of MediaSentry capture. The earliest date I saw in exhibits was 5/2/2005. He also testified that he found no evidence of KaZaA or any other peer-to-peer software on the disk.

He testified that he found that the hard drive was replaced on or about 3/9/2005, after the date of capture, and thus was not the hard drive or installation of Windows in use on the computer on 2/21/2005.

He also testified that he found evidence that another hard drive was attached to the computer, which was a statement he did not make at the last trial. He maintained his opinion that Ms. Thomas' computer was used to distribute music via KaZaA on 2/21/2005.

Cross-examination focused on a small number of issues. First of all, the username. Mr. Sibley argued that his previous testimony showed most users in cases he's worked on such as this one do not choose a username that is somehow linked back to an idendity, and that he believes the ratio is about 60/40.

Then Mr. Sibley asked about whether or not Dr. Jacobson had an opinion on whether all 1700 songs MediaSentry found evidence of came from CDs or KaZaA, or another source. He testified that he could not tell the original source of the files, and admitted that it would be easy for a user to move files around, such as in to a shared folder, regardless of their original source.

He was then asked about speeds in response to a direct question response that it would take about 170 hours of downloading to recieve 1700 music files. He admitted that numerous factors would influence how fast this would be, so his previous estimation based entirely on the MediaSentry transfer was mostly a guess.

He then pressed Mr. Jacobson who eventually admitted that despite all of his credentials, the best he could do was tie the infringement to a computer, not a person sitting behind the computer.

It then got really interesting. Dr. Jacobson was asked about his evidence that another hard drive was connected to the defendant's computer. He testified that he found evidence of this in a "data log". And admitted this data log was not provided to either party as a part of any of his reports. He then asked about testimony at a prior proceeding where he guessed that the wma files he found on the disk came from another hard drive due to the speed at which they were transferred. There was a brief dicussion of a demonstration about CD ripping speed performed at a "prior proceeding". He then admitted that the music could have come from ripping, since he had done no research on the various software and speeds that could be involved in ripping from Windows Media Player versions.

There was a brief redirect and then Mr. Sibley called for a sidebar about a voir dire issue. After the sidebar the jury was dismissed for lunch.

Dr. Jacobson was recalled to the stand out of the presense of the jury to discuss the evidence he found of another hard drive in the "data log". He testified that he first found out about this data log, and discussed it with plaintiffs counsel late last week. He admitted that he had suspected that another hard drive was attached at the prior proceeding, but didn't investigate it. In preparing to testify today he reviewed everything from the case and found this evidence.

Defendant moved for exclusion of any testimony regarding another hard drive attached to the computer.

Plaintiffs said they had no basis for exclusion since this was just an expansion of evidence found during the report.

Judge Davis asked, "Is that what you are going to stand on?" to which plaintiffs replied "Yes".

Judge Davis then stated he was considering striking all of Dr. Jacobson's testimony due to their conduct surrounding this evidence.

Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

17 comments:

Christopher said...

Ouch.

This is getting interesting!

Keep up the good reporting!

Anonymous said...

How is it that at this stage, the expert witness has access to logs that the defense doesn't even know existed?

How is it that the expert witness was still performing investigation 2 trials in?

And why, for goodness sake, didn't the RIAA legal team disclose the new evidence or the logs to the defense?

Eric said...

One thing I just though of. If the Thereastar user id was used in the windows login, wouldn't KaZaa automatically pick it up and use it unless the user picked another name? If that's the case the choice of KaZaa username may have been unintentional by the user of the software and not an intentional choice like email address or match.com login.

Jadeic said...

What a cliffhanger!

Great job Marc

Dave

Anonymous said...

first of all, let me say "Thank you, Marc" too for your service.
Now to the events;
The tweets from "SemiAccurate" seems to paint a similar picture like above more detailed report from Marc.

#RIAA This judge does not take last minute and hidden evidence well, boy was he angry
#RIAA DJ claimed they had evidence of a HD connected to JT-R's PC, and they had it in a log file.
#RIAA The log file was not produced in evidence, not talked about in prior cases, and not disclosed
#RIAA After DJ's testimony and x-examination, there was a sidebar
#RIAA after that, jury was excused, and the defense ripped DJ a new one
#RIAA he claimed that he reviewed the evidence again "late last week", and found it in an "obscure log"
#RIAA DJ discussed it a couple of days ago with RIAA, and he didn't disclose it. The defense heard about it roughly 15 minutes ago
#RIAA The defense claims it was done to cover up big problems with DJ's prior testimony about purported ripping speeds
#RIAA There were no screenshots taken of said logs, and DJ said that they may or may not have them
#RIAA When the defense heard that it was hidden, he left the stand in disgust, visibly
#RIAA The defense was annoyed and said "No further questions" very curtly. THe judge was visibly annoyed.
#RIAA From the judge, "Is that what you are going to stand on?". He was very annoyed
#RIAA RIAA responded 'yes'
#RIAA Judge was visibly annoyed, and recessed for lunch. He told the RIAA to come back at 1 with any log files they had.


Now this modus operandi by this Daubert failure Douglas Jacobson reminds me of the incidents in this other case where he claimed he found an external WD Harddrive attached only in his 5th or 6th or whatever report! In Lindor it was IIRC that he fabr[sorry! found] this aditional evidence only month/years after they got the HDD for inspection.

It seems to be a habit of this Jacobson guy to find surprise stuff only after several forensic inspections of the same drives.!
What is his problem? Is this training on the job, and he only learns how to inspect HDDs in a weekly online training course and that's why he finds every week new evidence once he has learned how to search for it the day before from his forensic inspection tutor?
Or is it he is just a guy that does criminal evidence tempering and planting?

Question: Can he be detained and put into custody right in the courtroom should it turn out that he (or RIAA layers) are now creating this surprise evidence as we speak?
(like those securely stored read only logfiles that mysterious somehow got the name(!) of defendant onto them even though the logfilekeepers should only knew the IP and reverse DNS addresses not the name of defendant when the logs allegedly where created)


--
A_F

crmanriq said...

Looks like the RIAA is skating by again. Limited striking of testimony related to external hard drive.

Anonymous said...

So I've been pondering the reason for striking entire testimony because of non-disclosure of a single element.

It seems to me that if you say "strike everything you heard about an additional hard drive", that single element is very difficult to forget as a jury member. If you say "strike everything you heard from Dr. J", you will still probably retain a few things, but a jury member is less likely to make a decision about whether x element that he mentioned should or should not be considered.

Is this a fair assessment NYCL? Or am I off base entirely?

Anonymous said...

Let's see if I've got this correct.

Registration certifications adduced by plaintiffs (exh. 4) have been struck, while their parol evidence will be allowed. (Which raises questions in the back of my mind how they propose to prove the alleged computer files are identical to the copyright media.)

Now, some if not all of Dr. Jacobson's 'expert' testimony is to be stricken/not allowed. And he even testified he had no idea where those files came from in the first place.

Do I imagine, or have plaintiffs effectively gutted their own case and/or more or less killed any chances of the verdict going in their favor?

-Quiet Lurker

Ray Beckerman said...

I just don't have enough information to answer people's questions.

And I'm stunned that defendants did not challenge the MediaSentry and Jacobson testimony on Daubert grounds.

Ray Beckerman said...

I'm also stunned that cross examination of Jacobson wasn't longer.

Sebastien said...

You might not know their game plan NYCL. Though, I would have thought a thorough gutting of Jacobson at this time would be very useful.

Perhaps her lawyers have other plans and didn't feel the need to gut him at this time?

Still, I would have liked to see some RIAA blood on the ground. (Metaphorically speaking of course)

Ray Beckerman said...

Correct. I do not know their game plan. And it is a perilous business second guessing the decisions made by a trial lawyer.

But I cannot for the life of me see why MediaSentry and Jacobson were not subjected to:

1. Daubert voir dires;
2. objections to their testimony; and
3. withering cross examination.

As far as gutting them "at this time"... there is no other time. It's over as far as that goes.

It's not a question of whether I would have enjoyed seeing RIAA "blood spilled"; I am much too disciplined and experienced a litigator for that kind of nonsense.

But I believe their testimony could have been excluded, and if they had been permitted to testify, that their cross examination could have torn them to shreds.

Igor said...

I'm with Ray on the cross and voir dires. I expected more, especially since this is trial 2!

Anonymous said...

As Ray said.

MediaSentry's methods, and the hard drive analysis, are apparently undocumented, unscientific, secret methods that have never been independently evaluated. We know they are sometimes erroneous, and Plaintiffs have no idea how often, nor have Plaintiffs sought to find out this information. Not to mention, the results don't show what Plaintiffs claim they show. It's amazing that Defendant isn't jumping all over this issue.

XYZZY

Anonymous said...

Re - cross and voir dire; it does run the risk that the jury will see defense counsel as "trying to get the defendant off on a technicality." Most jurors would have no clue that "Perry Mason moments" are improper under the rules of discovery.

Is it possible that further objections to Jacobson's appearance are on the table but the observers have missed them, perhaps because counsel approached the bench to raise them?

Ray Beckerman said...

Incorrect. It would have been outside the presence of the jury.

Anonymous said...

This is getting very interesting. I wonder the mind set of the jurors at this point.

I am curious to see what is found on the hard drive. The reason I found this website is because I have been promoting a book on this subject called "Voir Dire and Summation". It has received excellent reviews and you can read more about it at http://www.voirdiresummation.com.

We will see where this goes soon enought!

Thank you,

Ray
http://www.VoirDireSummation.com