Monday, May 14, 2007

RIAA Responds to Lindor motion to exclude expert; says "everyone in his field proceeds the same way he did"

The RIAA has challenged the defendant's motion to exclude RIAA "expert witness" Dr. Doug Jacobson in UMG v. Lindor, arguing that "everyone in his field proceeds the same way he did":

May 14, 2007, Letter of Richard L. Gabriel, In Opposition to In Limine Motion*

* Document published online at Internet Law & Regulation

Commentary & discussion:

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


AMD FanBoi said...

Dear Ray,

Mr. Gabriel either baldly lies himself, or is incredibly mistaken and misinformed, when he asserts "MediaSentry discovered massive infringement occurring on the computer in the defendant's home and for which defendant is responsible."

Until the have the actual computer and hard drive proven to be fingered by MediaSentry, they don't know where it was, who's it was, or who was responsible for it. To assert otherwise is such a lie that I'm amazed the judge tolerates such bloviating for a single instant. And there is, as yet, no published proof at all that MediaSentry uses the KaZaA program, or any other program, "in the same way as any other user could do." Most other users don't trace IP addresses using KaZaA, for starters.

They also claim Dr. Jacobson's methods are "settled and undisputed". I believe that to be a lie too – at least in some countries other than the USA, where such evidence is not sufficient at all to instigate a case. Nice to know, according to Mr. Gabriel – an obvious paragon of knowledge in these matters – that none of this can be peer-reviewed.

Btw, from this view, and based on this case, Dr. Jacobson's credentials seem hardly impeccable. He comes across more of a hobbyist in this area of computer forensics.

Lastly, very curious footnote[3]. MediaSentry offers no opinion or interpretation of that data. This seems to me to be a transparent attempt to keep MediaSentry from being deposed, and out of court. If MS didn't interpret the raw data, and Dr. Jacobson wasn't in the case at the time when the original John Doe suit was filed, THEN WHO WAS THE EXPERT that the non-computer literate RIAA used to take the raw data files and logs supplied by MS and turn them into that first court case? One is led to believe by this letter that no such person exists at all, and therefore can never be questioned. Inquiring minds yada yada yada...

DreadWingKnight said...

As a digital forensic investigator (admittedly with limited experience), I feel it appropriate to mention that a lack of documentation of the process or technology used means that the process isn't readily reproducible.

If we don't have the documentation on the process, we don't have a way to verify that the conclusions drawn are accurate.

Saying "everyone in the field proceeds the same way" is an interesting comment to say the least.

Because of RFC1918 address blocks, IP addresses cannot be used to verify a person's identity. Network Address Translation devices (Residential Gateways/Routers) will not retain the information on leases they give out beyond 5 minutes after power loss. Additionally, there is massive replication of RFC1918 addresses around the world. I can't count the number of people globally whose computers have an IP address of because of the replication.

They also claim Dr. Jacobson's methods are "settled and undisputed". I believe that to be a lie too – at least in some countries other than the USA, where such evidence is not sufficient at all to instigate a case.
In Canada, the evidence used by the Recording Industry member companies to attempt to get their target's information has been rejected as insufficient by the Federal court of Canada and was upheld by the Federal appeals court. (Ref).

It is interesting that this was filed at all.


Unknown said...

Has anyone ever "sought discovery from MediaSentry." (page 1 footnote)

I would like to see the Hard Drive from the MediaSentry computer, and know what employee or automated system was hitting printscreen button.

Has anyone asked who actually made the screen captures? Human, dog, monkey, automated script?

zi said...

Let me point you the readers of this blog to Encase Forensics' "How It Works" webpage. As you can clearly see in the diagram, STEP 4 is documenting findings:

Dr Jacobson did not do any of this.

AMD FanBoi said...

Has anyone asked who actually made the screen captures? Human, dog, monkey, automated script?

It was LizardLips, the Iguana, who cannot be deposed, nor placed on the stand.

Alter_Fritz said...

If Mr. Gabriel truely believes what he told the judges in this letter then is he incompetent. If on the other hand he is just pretending to believe it, then the judges should regard him as a liar and deal accordingly with him. (Rule11)?

With respect to the second possibility I am with no help, if its the first one -incompetence- maybe this (*) commercial offering can help Mr. Gabriel!

This (**) tiny file I found online points out some basics. (Since it's only ONE tiny 290kb file out of a full featured 5 CD training Module according to the website, I claim that the mentioning of it's URL is fair use!)



AMD FanBoi said...

A new thought:

Mr. Gabriel asserts that MediaSentry uses KaZaA just like any other user would. Does this mean that the MediaSentry is as loaded with adware and spyware crap as what KaZaA loads on every other computer it's installed on?

1) Was their version of KaZaA then running on a highly compromised computer?

2) Or did they alter the program to have it run in a non-standard manner without at accompanying package of undesirable crap?

3) Or did they use another package, say Kazaa-lite, that doesn't have the crap, but also operates differently and would not be the program they have represented that they have used in this investigation?

4) And which version of KaZaA did MediaSentry use? Active P2P programs are update regularly.

These seem to be questions not yet asked of the Plaintiff's lawyer, and the employees working on this investigation for them.

CodeWarrior said...

To try to defend their poor excuse for an "expert" by saying
"everyone in his field proceeds the same way he did" is like trying to judge bovine behavior by finding a cow suffering from Mad Cow disease, alone in a field, and claim its behavior is normal by saying ""everyone in his field proceeds the same way he did".

Surely the judge can see through the fallacy of this. It's also like judging whether Clyde Barrow's bank robbing was proper or not by saying "everyone in his field proceeds the same way he did".

My side is hurting from laughing...I must stop.

recordjackethistorian said...

The letter refers to "seeking discovery" from Media Sentry. Up until recently we have had no clue what or who Media Sentry as. For all we knew it could have been a psychic with a crystal ball!

Perhaps with the more recent discovery requests the identity and make-up of Media Sentry might be discovered, but I cannot help but think that the RIAA has been deliberately obtuse about what exactly Media Sentry is.

By withholding information about the true nature of Media Sentry, defense councils have been needlessly sent on a wild goose chase.

This, I believe, is a deliberate attempt to mislead defense council, an attempt to take advantage of their lack of technical expertise in this field. They should be ashamed of this kind of behaviour! If they had nothing to hide, why be so coi about what/Who Media Sentry is?

In the end, all it will show is how badly these corporations understand the Internet.

a.k.a. Record Jacket Historian

raybeckerman said...

Dear record jack,

You are consistently selling us defense counsel short.

We understand MediaSentry a lot better than Dr. Doug Jacobson does.

recordjackethistorian said...

I apologize if my comments sound like I'm selling defense council short. I don't beieve for a second that they are fooled by what the RIAA thinks or wishes them to be. It just takes longer to lay out the truth before the courts than it does the RIAA to lay out their lies and deceit.

As I have come to see in watching SCO vs IBM, I have been pleasantly surprised by many lawyers and especially by the people some call "Old man judges". On every occasion, any fears I had that trickery or deceitfulness would win out, have been for naught. Defense council and Judges alike have been able to penetrate the densest clouds of meaningless clutter those who wish to deceive the courts have thrown up.

To put it very directly, I would not want to be in the RIAA's shoes when defense councils and the courts get finished with them.