Wednesday, October 03, 2007

Withering Cross Examination of Dr. Jacobson in Virgin v. Thomas

Some more good stuff from Ars Technica's Eric Bangeman:

Professor Doug Jacobson conducted the forensic inspection of Thomas' hard drive, a drive which had been replaced under extended warranty by Best Buy about two weeks after the alleged infringement was noted by Media Sentry (but before the RIAA came calling). During its opening statements, the plaintiffs alluded to the possibility that the drive had been replaced in an attempt to wipe out any evidence of copyright infringement, but testimony from Ryan Maki, a Geek Squad "deputy of counterintelligence" (read: supervisor) resplendent in a Geek Squad sweater and sporting a law-enforcement-looking badge on his belt, confirmed Thomas' tale of hardware woes necessitating a replacement. It would appear that she had her drive swapped for a legitimate reason.

This still leaves the question of the music found on Thomas' new hard drive. During Gabriel's direct examination of Jacobson, the investigator noted how close together the timestamps of the songs in Thomas' My Music folder were. "It is my opinion that the music files on the defendant's hard drive were placed there from another hard drive," affirmed Jacobson, attempting to account for the nature of the time stamps.

Once cross-examination began, Toder started asking Jacobson about things such as MAC address spoofing, cracking, P2P pollution, and multipeer contamination, intimating that one of those things could have been in play when Media Sentry detected the shared folder at the IP address in question. He then questioned Jacobson about his assertion that the music currently on Thomas' computer had to have come from a hard drive and announced that he wanted to demonstrate to the jury that it was possible to rip CDs as quickly as the timestamps from the forensic examination showed (the timestamps were approximately 15-20 seconds apart with a longer 30- to 45-second gap between CDs).

The RIAA's Gabriel objected, and the jury was led out as the attorneys discussed whether the demonstration should go forth. Judge Michael Davis gave his assent to the demonstration, and, after the jury filed back into the courtroom, Thomas ripped two CDs, timing it on her cell phone. When the first CD was done, she announced the time as 2:36.18. Gabriel immediately objected saying that they timed it at over four minutes. The apparently-amused judge said that the jurors could figure out the time for themselves. The second CD ripped in 2:17.71 according to the defendant's timing (I timed the second demonstration in 2:18.97). Gabriel again objected, saying that he had it at three-and-a-half minutes.

With the results in hand, Toder got Jacobson to admit that, despite whatever differences in hardware and software (e.g., WMP 11 versus WMP 10), the results of the test indicated that it was possible that the music was legitimately ripped from CD. "Is it still your testimony that the music on the defendant's computer was copied from a hard drive?" asked Toder.

"Given new versions of software, you could rip this fast," conceded Jacobson.
Complete article

Keywords: digital copyright online 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


Unknown said...

I know that they are trying to paint the defendant as a dirty rotten pirate, but shouldn't they have at least discovered that she actually buys hers CD's and rips them.

The main point the RIAA should be focusing on is the whole Kazaa thing, not trying to make the defendant be even uglier.

It definitely gives the jury more doubt about the whole thing when it's pretty much proven that she buys a LOT of music and mainly rips stuff, although that in of itself has nothing to do with the filesharing aspect.

IF she was also a dirty pirate, it would have helped build their case, but instead it's hurting their case (or at least I think it would if I was on the jury).

Igor said...

What does Jacobson mean with the latest software is that fast? It's been at least that fast for over 5 years now! Back when I was ripping my collection to back it up it took under 5 minutes a CD and that was in 2000.