Monday, March 19, 2007

Transcript of Oral Argument of RIAA's MediaSentry Protective Order Motion in UMG v. Lindor Now Available Online

The transcript of the oral argument of the RIAA's motion for a protective order arguing that its contracts with MediaSentry are "privileged" in UMG v. Lindor is now available online:

Transcript of November 30, 2006, proceedings*

The only portion of the proceedings that is not available to the public is a "sealed" portion containing an in camera discussion at which just the RIAA's lawyers, the Magistrate, and presumably the Magistrate's staff, were present, and Ms. Lindor's attorney was not present.

Errata: thank you to one of our readers who pointed out that remarks which were made by me (Ray Beckerman) were incorrectly attributed to Richard Gabriel.

* 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


Anonymous said...

1 Our strong
2 interest is that this contract doesn't get released at
3 all for fear of, as we say, literally providing a road
4 map for would-be infringers.

I nearly spat pepsi out of my nose. Yes, god forbid people figure out how to infringe coypright.... Oh wait!

My lord.

Ryan said...

You know it is one thing to take the opinion of someone you trust to be accurate and another to actually get to ‘see’ what occurred. I must say like the other depositions / Oral Arguments I have read I am amused. For one Mr. Altman’s portion with Mr. Gabriel made me laugh for a good time, as I don’t think Mr. Gabriel was prepared for some of Mr. Altman’s blunt statements. However Ray I think you or he missed an opportunity there. If the super spiffy MediaSentry system is so good that based on it alone you can go after someone, how come it didn’t get Woody Raymond instead of Mrs. Lindor? We of course know the reason but as I read I kept hoping to see a comment there. I realize that hindsight is always better and it’s easier after the fact to catch things but it would have been nice. :P

Anyways I appreciate being able to actually read these events as opposed to 2nd or even 3rd(+) hand information.

Alter_Fritz said...

"THE COURT: Well what would be helpful because the truth might be interesting but it might not be relevant."

Sorry?! "truth not be relevant" sounds to me like this line from a copyrighted motion picture "You want the truth? You can't handle the truth!". Can someone explain me what the judge might wanted to say, in other words please? Because I don't understand

"MR. GABRIEL: [...]Our strong interest is that this contract doesn't get released at all for fear of, as we say, literally providing a road map for would-be infringers."

I'm doing now the court a favour and to take the fear of the plaintiffs that those contracts are important secrets:
This is the Road Map for would-be infringers;
1) turn left at your ISP street and walk strait to or any other search engine of your choice.
2) move forward and type "usenet providers" into the search field (If you just want to check out the usenet without doing copyright infringements, you can stay with "" for free)
3) after getting instructions where you find commercial usenetproviders for so called "binary groups" move over to them and ask for an account.
4) see the usenet's provider help section for recommandation what software is good to use the usenet.
5) subcribe to a group like alt.bin.mp3 for example and you would be able to infringe copyrights in number going into millions without fear that the RIAA investigators can detect your infringements unless they themself would act as your usenetprovider.
6) Of course copyrightinfringement is against the Law even when those dinosaur Plaintiffs refuse to sell you what you want (mp3 files for a fair price) and even when their investigators can't catch you for downloading from binary usenet groups!! DO NOT DO IT!
(Secret is out now, can we just get over with this RIAA gameing where they take advantage about that fact that most judges don't understand the technological things they talk about and draw conclusions for the judges that are nonsense?)

" MR. GABRIEL: But as a general matter my firm doesn't publish its billing rates and you get into antitrust concerns."

To bad "your" firm is now ordered by a judge to "publish" its billing rates!

" MR. GABRIEL: And so you could go -- you know, the file is partially corrupt and you have -- you know,you can listen to 20 seconds of it. Is that copyright infringement? I think it would be."

Yeah, maybe this falls under copyrightinfringement too, but having 20 seconds of a piece of art that is 4 minutes long is very likely "fair use" Mr. Gabriel.

Igor said...

Ray, I think that next time you can use the edited log as an example of one instruction that they received that's significant. If they edited those address in the log, what else could they have changed or were instructed to.

Also, they reference 100's of pages of documents. Are there any other logs that aren't in evidence that we didn't have a chance to pick apart?

"MR. GABRIEL: ... Your hypothetical, your Honor, is right on point. And I am jealous because I wish I thought of it myself because I was trying to come up with one in my papers. It's exactly correct." Sucking up to the teacher much?

Ray, I think a better analogy to use (rather than a drug one) would if a crime scene investigator said they identified the defendant using a proprietary process and they cannot divulge what it is. The process could be anything from DNA testing to ESP. One is obviously valid and peer reviewed the other one makes a lot of money in Vegas.

Igor said...

"MR. GABRIEL: Yes, I mean, exactly. They are what they are. I mean he has the screen shots that Media Century was looking at and the way it works if I were on Kazaa and seeking a file, I send what's called a data packet to the other computer and other computer acknowledges and sends it back and the IP addresses get exchanged..."

I think it needs to be made clear to the judge that the screen shots is not ALL the data that's exchanged between the computers. There's more data exchanged, more information that media sentry has or SHOULD have from this communication. RIAA submitting a screenshot of a packet is like the police seizing a letter but in court on submitting a picture of it (or only a picture of the murder weapon).

When answering about his dream find he said:
"MR. GABRIEL: We're going to find the hard drive that matches up with the screen shots that we've provided that were -- and that hard drive was attached to Ms. Lindor's internet account on the day we captured it."
And then he's going to take a sip out of his drink and a year later try to see if the inside of a random bottle matches the inside of the bottle he took a sip from.
"MR. GABRIEL: And the issue is I don't think we
7 have to have seven supplemental reports which I think
8 would confuse the record. And I can see that Mr. -- you
9 know what happens is we submit a supplemental expert
10 report and that's all over Mr. Beckerman's blog
11 instantaneously and every other blog in the country and
12 look what they found or they didn't find.
13 MR. ALTMAN: So? First Amendment, I'm sorry.
14 MR. GABRIEL: Well the point --
15 MR. ALTMAN: You don't like that these cases
16 have publicity?"

That has to be the best exchange of the transcript!
On the expert vs. fact issue. How can their expert not validate the process and media sentry not be experts in the process? It's like having a random person perform dna analysis and then having a dr. saying I don't know what they did but based on their analysis and the print outs they provided there's a 100 % match.

"They're going to say they did what anybody else could do; the effect -- they went on Kazaa. They searched for particular recordings. They downloaded the particular recordings. They took a picture of the share folder. Not one word of that is opinion."
What about the packet dumps? only experts do that regular person goes on Kazaa with proprietary packet dump software running and then take screenshots.

"And here's the communications between our computer and that computer." Only a computer expert can tell you what the communications are...that's opinion not fact.
On privilege: Didn't media sentry have their own lawyers when negotiating contracts with RIAA?
If Mr. Gabriel wants, I have screen shot of Mozart he can listen to.
"You do
12 know they're downloads because legitimate CDs that you
13 buy in a store don't have metadata on them." Right, but as soon as you rip your own CD any software can get the metadata from online catalogs.
The judge is smart about corrupt files. He makes good points.

Unknown said...

Definitely an interesting read. I find that Mr. Gabriel contradicts himself a few times. I'll see if I can go into more detail tomorrow when I have time to really examine the transcript. Until then, I have a few questions if you have the time.

Mr Gabriel mentions that he knows these are songs and not just empty files because he can compare the file size to something. Where is that something? Have these baseline files been asked for in discovery? We all know filesize is misleading. It could be a bunch of 0's. Many programs allocate space before saving data. Comparing the hashes in the Kazaa data file would be better investigative work, but you'd need the originals to compare the hashes.

Mr. Gabriel says that he can prove that the connection was not made wirelessly by patching the X-Kazaa-IP to the source IP. It doesn't necessarily work that way. I'll try to get some contradicting packets up to demonstrate. Also, if there was a router in use, what was the make and model? Some routers assign IPs back to connecting computers; especially the cheaper ones often given out by ISPs.

Also, in regards to the expert vs fact witness, MediaSentry must have drawn conclusions during the original investigation without the help of Dr. Jacobsen. In addition, the methods used by MediaSentry seem fairly transparent. I'm not sure what they're trying to hide. The data that they produced pretty much gives away exactly what they did to obtain it. It seems obvious to me that they connected to a computer at the specified IP address and they captured the packet data as they made requests. That's all well and good, but it's a far leap to go from there to proving who was sitting at the computer. From what I see, they're at least 3 steps away with just an IP.

AMD FanBoi said...

Are the IP addresses used by Media Sentry properly revealed here? Or did they change them to not let people see which IPs should be being blocked? And if they did change them/hide them, what else could be changed/hidden?

Sanji Himura said...

That's a very good point.

I personally think that Mr. Gabriel is trying to have it both ways. Since Dr. Jacobson has been discredited as an expert, he has been putting the "double talk machine" into over drive. By putting out the screenshot, he has kept the defense on some half truth, and when they wanted the raw data that MediaSentry uses to draw their conclusions, they claim that it is privledged(even though I can't see why this is even possible). Everyone knows that it isn't possible to draw the right conclusions without RAW data, but that is the position that Mr. Gabriel wants everyone to be in by releasing that shot.

Somehow I think that the judge in this case will come to the right conclusion and deny this motion.

Anonymous said...

I'm kind of new to reading these documents, but what does the '--' mean? Is this just words that couldn't be recognized or is it information left out of the document on purpose?

AMD FanBoi said...

One thing that floors me here is how Mr. Gabriel has maintained several times that you'll know it is exactly their sound file, and nothing else, by the number of megabytes in the file size. Unless you inspect the file, as was pointed out, it could all be zeros. Even more, however, is that every different MP3 ripper and transcoder will come out with a different result because they use different code. Don't believe me? Get the different rippers available (Xing, Lame, Franhoffer, etc.) and encode the same cd track from each of them. The results are different! This is why some encoders are preferred over others, since the produce superior results. And this is before all the other parameters are set for an encoder. Heck, just a fixed bit-rate of 128KBS verses 192KBS verses 320KBS verses VBR (variable bit rate) encoding with various different limits PRODUCE VASTLY DIFFERENTLY SIZED FILES. So how on page 97(3-4) Mr. Gabriel can compare his reference file to the screenshot of file size and say they are the identical number of megabytes, and that makes them the same IS IMPOSSIBLE! Even if he has this same, identical, music file that he downloaded from somewhere else, that doesn't make it identical in CONTENT -- even if it is identical in SIZE -- to the file in the screenshot.

This is why he hates you Blog, Ray. Mr. Gabriel is spouting his nonsense and lack of technical education in front of educated people here, and getting called on it daily.

Ray, you should take one of the MP3 files they've provided to you as evidence, keep the metadata, set the entire audio portion to zeros, and demonstrate that, to KaZaA it still has: 1) the same file name; 2) the same file size; 3) the same metadata; and with only a little extra effort by an expert in this file format, 4) the same sampling rate and anything else shown on the screenshot. This would show that the displayed information in the screenshot is clearly NEVER CONCLUSIVE about the contents of the file.

And don't forget to carefully check that the files provided as evidence do show the same exact details as that on the screenshot. If they vary by even 1 byte, the RIAA has a huge problem.

And this is why you need to know their EXACT method(s) of data collection. If they altered the KaZaA program that created the screenshot, or used a different program to create it, well that's the program that interpreted the data returned from the remote computer and displayed it in that form. KaZaA has gone through a number of revisions. Do some of them show data differently than others? You need to know exactly what created that screenshot, and what assumptions it may have made about the shared file folder it thinks it saw to create it. You need to know the tool used to create the data, and just saying it was like anyone else going out on KaZaA and finding files isn't nearly enough!

Unknown said...

AMD: Be careful about setting it to ALL zeros. They may claim copyright for John Cage :)

I was thinking the same thing, but the hashes are provided in the Kazaa packet dump. Those should match up if everything is exactly the same. Of course, as you say, there's no way that will happen given different environmental conditions during the encoding processes.

As to alteration, it's definitely altered. I believe that they will have to admit that as they've replaced the MediaSentry IP with a placeholder. Doing this shows how trivial it would be to replace anything else in the file. On the other hand, I'm going to take the highroad here and say that any physical evidence provided is unaltered in any meaningful way. I know that trusting the RIAA to maintain an ethical standard is looked down upon here, but I don't believe Mr. Gabriel would knowingly risk disbarment or jail time.

Anonymous said...

A fun blast from November 30th of last year. People should note that the case has progressed since the oral arguments last year, notably the RIAA’s “expert” has been deposed (Feb 23d) and Ray has the transcript posted

Mr. Gabriel was not especially convincing.

Early on, Gabriel tries to argue that revealing the Media Sentry fees would cause competitive harm to Media Sentry at the same time he argues that Media Sentry’s proprietary process makes them unique and irreplaceable. It is probably true that there is no client who could ever be bigger to to Media Sentry than the RIAA, except possible the MPAA. Media Sentry and the RIAA aren’t going to dissolve their relationship if their fees are revealed. It seemed the judge may well agree.

Gabriel” “That's what his experts should be looking
19 at and he can explain why the IP address that was
20 assigned to Marie Lindor is not the right IP address.
21 And they've tried. They said that there was a -- someone
22 used a wireless router. Well, technologically, we know
23 that's not the case.“

The heck he does. He can claim it, but he doesn’t KNOW it.

P71, L17 seems to be Beckerman, not Gabriel

Unknown said...

22 used a wireless router. Well, technologically, we know
23 that's not the case.“

From the deposition of the expert witness, they claim this based on matching the source IP to the X-Kazaa-IP. This depends entire on the way the router works as I'm sure you know. What they claim isn't specifically that there was no wireless, but that there was no router at all. They fail to mention the effects of a wireless bridge, for example.

5 A. Through the MediaSentry traffic
6 captures which shows the IP address of the actual
7 computer and the IP address of the packet in transit
8 across the internet, and those two IP addresses were
9 both public and both matched.
(Transcript of February 23, 2007, Deposition of RIAA Expert Witness, Dr. Doug Jacobson, in UMG v. Lindor*, p.66)

Ryan said...

Of course if all the advanced users here (and on the various other sites discussing this) didn't know to look in the payload of the KaZaa for the 'source' ip. Furthermore I would say many advanced users did not also know that that portion of the payload happens to be the actual ip of the machine and not the 'public' ip then there is a problem. I don't say there are not many advanced users out there who knew that but those would likely come to the level of experts. If network admins, advanced geeks and computer guru’s didn't know it easily from JUST using the program, what are the odds that an average user would know it? Which is of course officially what MediaSentry is claiming to be in this case. Although the judge had to accept that fact back when this discussion occurred that Dr. Jacobson would be providing that link, now however we have his own words that he cannot do such.

Ps even though I ‘knew’ I had read the deposition of Dr. Jacobson before this oral argument it didn’t quite click as I wrote my earlier comment. So, yah, my mention of opportunity lost is a bit harsh there.

raybeckerman said...

arteekay... i almost spat pepsi out of my nose when i read your comment...good one

ryan...sorry i wasn't as good as richard altman, but i'll tell you... richard altman is pretty damn good....

alter_fritz... judge meant it might not be relevant...

igor...exhibits 6, 10-14 of jacobson deposition...

Alter_Fritz said...

jack asked what the '--' in a transcript mean.

If i interpret it correctly this is used to indicate a break in the thinking/speaking process of the person that spoke.
Example i would start to say:

"Well you know the RIAA is a bunch of " shut my mouth after the "of" and continue to talk after a few miliesconds of thought with "The RIAA is nice" the reporter would transcribe it: Well you know the RIAA is a bunch of -- The RIAA is nice
Example for that is where Mr. Gabriel was complaining about the publication in blogs and maybe because he would not wanted to have it look like he blame Mr. B. by name, he rephrased the sentence after "Mr." before he could say "Beckerman".

If we could have an audio recording from the next hearing in March you could compare this later with the transcript. Then you would clearly see what I mean.

raybeckerman said...

the problem with the transcript is that it was made from a tape recording... there was no court reporter present at the time....

it's very very difficult to do a transcript from a tape recording...

rtk said...

"MR. GABRIEL: A lawyer would need decide what would be relevant proof in a litigation, would this be sufficient proof in a litigation that I think a security person couldn't."

The problem here is that they forgot to ask a "security person" if your relevant proof was technically sound.

RIAA: We need proof.
IT: We've got an IP, whatchya think?
RIAA: Perfect, we'll take it from here.

Alter_Fritz said...

the transcript is fine i guess.
typos like century instead of Sentry are no problem if everybody knows what was ment.

Just see that you can provide us fast with the important stuff from the ipods and mp3 player hearing. That is really important stuff! (in iPod friendly mp3 flavour would be ubergeek cool.)

(Me already imagin CC licensed music from some remix artists with samples of Mr. Gabriel's worst answers on some tough questions from Mr. Altman) :P

Anonymous said...

MR. ALTMAN: What's the issue?
6 MR. GABRIEL: And the issue is I don't think we
7 have to have seven supplemental reports which I think
8 would confuse the record. And I can see that Mr. -- you
9 know what happens is we submit a supplemental expert
10 report and that's all over Mr. Beckerman's blog
11 instantaneously and every other blog in the country and
12 look what they found or they didn't find.
13 MR. ALTMAN: So? First Amendment, I'm sorry.
14 MR. GABRIEL: Well the point --
15 MR. ALTMAN: You don't like that these cases
16 have publicity?
17 THE COURT: Okay. Please one at a time. This
18 is --
19 MR. ALTMAN: That's unfortunate.
20 MR. GABRIEL: And the point is --
21 MR. ALTMAN: That's the reality.