Saturday, June 20, 2009

UMG Recordings v. Mavis Roy case settled, with help of expert witness report ripping Jacobson & MediaSentry

Received this welcome report from the Franklin Pierce Law Center, whose clinical program has been defending Mavis Roy, in New Hampshire, in UMG Recordings v. Roy:

Clinics Post Victory in Downloading Case

After nearly a year of research, litigating and negotiating, students in Franklin Pierce Law Center's Consumer and Commercial Law and Intellectual Property and Transaction Clinics have posted a victory in a music downloading case brought in U.S. District Court by members of the Recording Industry Association of America (RIAA) against Mavis Roy.

Roy, of Hudson, New Hampshire, had been charged by four record labels with downloading and distributing hundreds of songs from the Internet. A letter from the record companies' attorneys in July 2007 directed her to a web site where she could pay by credit card to settle the case. Since she did not have a computer in her house at the time she was alleged to have downloaded the music, she ignored the requests. "For many months she thought it was just a scam," Pierce Law Clinic director Peter Wright is quoted in a story about the Clinics' involvement in the case in The Union Leader of January 26, 2009.

The Clinics appeared on her behalf in the federal law suit and the parties agreed to open the default judgment that had been entered so Roy could mount her defense. During the next eleven months both sides thoroughly investigated, researched and prepared for trial. Central to the Roy defense was a very compelling expert report from Dr. Sergey Bratus, Research Assistant Professor at Dartmouth College Department of Computer Science, that seriously challenged RIAA's evidence linking the downloading activity to Roy's computer.

Two weeks after Dr. Bratus' report was disclosed and on the eve of depositions which had been scheduled for Roy and her entire family, a settlement was reached. Under the terms of settlement, the case is dismissed with prejudice and neither side is paying the other any money.

Intellectual Property and Transaction Clinic Professor Ashlyn Lembree said of the students working on the case, "They really felt for Mavis and worked very hard to learn all the ins and outs of networks and Internet service to provide her with the best defense."

In a letter expressing her gratitude to the Clinics and their students for working so hard for her, Mavis noted that despite the positive outcome of her case, she is "still unsettled that the record companies are able to treat upstanding American Citizens this way."

This was one of several RIAA downloading cases still active in the courts. The RIAA has announced that it will discontinue pursuing litigation against individuals where downloading is suspected, looking instead to the Internet providers to deter such activity.

In Pierce Law Clinics, students gain practical experience researching cases, deposing clients, preparing strategies, even presenting arguments during trial. Students are eligible for clinic work after they have completed their 1L year.
Defendant's Expert Witness Report

The expert witness was Prof. Sergey Bratus of Dartmouth College. Prof. Bratus's report sharply criticized Prof. Jacobson's reports and the MediaSentry evidence, and agreed with the expert reports of Prof. Yongdae Kim in Capitol Records v. Thomas-Rasset and of Prof. Johan Pouwelse in UMG Recordings v. Lindor.

The students worked under the supervision of Prof. Ashlyn Lembree and Prof. Peter S. Wright.

The Free Software Foundation had made a grant to Ms. Roy to enable her to hire an expert witness, under its Expert Witness Defense Program.

Commentary & discussion:

Concord Monitor
Slashdot
Nashua Telegraph
p2pnet.net
p2pnet.net (6/22)
electronista
HardOCP
Gizmodo



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

14 comments:

Mikkel said...

Very disappointing...

After the ridiculous decision yesterday in the JT-R case, it seems like the RIAA once again continues to get their way. Even when they are totally wrong, they get a free pass! Dismissed with no penalties at all to the RIAA...

Ray: With this being dismissed with prejudice - can Mavis Roy still sign up for the class action lawsuit being proposed by Kiwi Camara?

Ray Beckerman said...

Dear Anonymous Mikkel, I think you live in a dream world if you find this disappointing. If you were in Ms. Roy's position you would be very happy.

These are real people suffering through these lawsuits, my friend. Don't be childish.

Eric said...

Just because we have the correct outcome does not mean that this wasn't a hardship on the putative defendant. The fact that it took almost a year for them to dismiss with prejudice in a case where the named defendant did not have a computer at the time is insane.

It's encouraging that we have another good expert witness, but his report should have been completely unnecessary when it was discovered she had no computer. While this defense was probably done at no cost, the time and cost of the expert witness ( paid via the fund ) far exceeded the "extortion" payment, further reinforcing the RIAA's position of power in these cases.

PS: I can't seem to open the expert witness document.

Mikkel said...

Thank you Ray for putting this into perspective. I am very happy for Mavis Roy and the students in the class that really did themselves proud.

But when will the RIAA start to pay for their lawsuits that have no basis? She did not even have a computer at the time of infringement!

Alter_Fritz said...

"A letter from the record companies' attorneys in July 2007 directed her to a web site where she could pay by credit card to settle the case. Since she did not have a computer in her house at the time she was alleged to have downloaded the music, she ignored the requests."

Now come again Mr. MediaSentry witness in Thomas...

...What did you say under oath the error rate was?

Ray Beckerman said...

Sorry for the bad link to the expert witness report; I've corrected it.

Alter_Fritz said...

Ray, would you please be so nice to ask the clinic to provide you with a set (at least the relevant stuff) of the "evidence" [RoyMNH0054--RoyMNH0996, as provided to the defendant's counsel] from the RIAA that the defendants experts refers to in his reports.
Seeing what he talks about when he concludes things like: "The fact that this standard operation has failed suggests flaws, or "bugs", in either the MediaSentry software, or in its system or network configurations, or both."

Eric said...

He has put into eloquent legalese many of the complaints we have had over the years. Half of the problem though is that only the "traceroute" issue is a non-theoretical attack on the actual data in this case. The rest point to either theoretical issues or sloppy reporting of data which MS may have ( and are probably correcting ).

Considering how other judges have treated questions of the MS evidence I don't have high hopes that this testimony will be taken seriously in cases similar to JT-R.

Hopefully the Albany case might put a stop to this shotgun lawsuit methodology in the first place.

Christopher said...

Brilliant expert report... well worded and he cuts right through the issues. This is exactly the sort of criticism of MediaSentry procedures that Thomas-Rasset needed!

devilsadvocate said...

Nice to see MS's "evidence" so neatly gutted.

I've been wondering if another reason MS doesn't want anyone to see their code is that they infringed Kazaa's (or others)copyrighted work. That would be an interesting court case.

Anonymous said...

" These are real people suffering through these lawsuits, my friend. Don't be childish. "

I don't think he's being childish.
It is still VERY frustrating.
If the RIAA legal team never has
to pay out after knowingly filing
a suit like this they have no incentive
to stop making more real people suffer.

IF I were in MS Roy's position, Yes
I would be happy, but I also would be
frustrated by the fact that this can
be allowed to occur in the first place,
and that it will continue to happen until
the RIAA team has to face some consequences of their own.

Dreddsnik

Anonymous said...

It appears to this man that the next step to take is to block traceroute at your firewall. The trail would stop cold at that point.

{The Common Man Speaking}

Anonymous said...

Heh... The LAST thing that MediaSentry or the RIAA want is one of the real researchers in Computer Forensics or Computer Security (Dr. Bratus is one of that lot, which includes the likes of one Bruce Schneier...)- each and every one of them would likely pick apart the RIAA expert testimony in the same way.

Anonymous said...

@TCMS:
It appears to this man that the next step to take is to block traceroute at your firewall. The trail would stop cold at that point.

Yeah, that's not a bad idea, but just remember the groups of people who these RIAA punks are suing . . . The defenseless, the technologically illiterate, the working class. Not the kinds of people who could easily block ICMP traffic as easily as either you or I could.