Thursday, February 12, 2009

Prof. Yongdae Kim of Univ. of Minnesota will be expert witness for Jammie Thomas; motion for extension of expert discovery granted

In Capitol Records v. Thomas, Jammie Thomas's motion for an extension of the discovery deadline, in order to enable her to designate Assistant Professor Yongdae Kim of the University of Minnesota as her expert witness, has been granted by Magistrate Judge Raymond L. Erickson.

The Judge ruled that "there can be no doubt that Dr. Kim is expected to provide expert opinion evidence that is important to the Defendant’s case, and that was not readily accessible to her prior to her receipt of a grant from an interested Foundation".

The RIAA had strenuously opposed the motion.

Professor Kim will testify about the techniques of group and internet security, inclusive of the means by which an internet protocol address can be “hijacked,” or impersonated, by others who are not the owner of that address.

Ms. Thomas's hiring of an expert was made possible by a $3000 grant from the "Expert Witness Defense Fund" administered by the Free Software Foundation.

February 12, 2009, Decision Granting Extension of Expert Discovery Deadline

Commentary & discussion:

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


Anonymous said...

The RIAA plaintiffs insisted that a "manifest injustice" must be the result of not allowing another expert witness at the retrial before such expert witness should be allowed.

The manifest injustice in this case is the immense disparity in resources between the plaintiffs and the defendant. Anything possible to redress that imbalance should be allowed.

And by the way look: The Emperor has no clothes!

{The Common Man Speaking}

Reluctant Raconteur said...

I think it interesting that the defense seems to be pointing to spoofing, as opposed to making availible.

I wonder if this is a variation on the 'Nobody knows if you are a dog on the internet' defense. That it is impossible to KNOW who is at a particular IP address

Anonymous said...


from the Capitol v Thomas testimony. IANAL and the law here (Scotland) is different enough that even English lawyers are not heard.

1 The downloaded files were on Jammy's computer, but not with the CD music files (strange). This points to a Remote Assistance, backdoor or proxy exploit. These are not methods I expected to see from a file-sharer, but if the weakness is there, take advantage. Remote Assistance is a "feature" of Windows, so AFAIK there would be nothing in the registry for it. Jacobson knew or should have known about this. Could be an interesting face-plant.

2 MediaSentry said the collection of data was in the ordinary course of business. It was in anticipation of litigation, so IMHO the higher "chain of custody" standard should apply.

3 The ISP retains IP address leases in the ordinary course of business until a lease expires. After that it is in anticipation of litigation, so the same rules apply.

4 Parisser's testimony about damages is contradicted by the Robertson Declaration in Capitol v MP3Tunes, which describes music on the internet with EMI's approval. Sony BMG is not EMI, but in a promotional arms race, Sony BMG must conform or fall behind. It would be nice if some diligent soul could research this. Again, it could be a lovely face-plant.

5 Talking of arms races, there is potentially one between P2P client developers and investigators, and I suspect that the investigators have not noticed, and are falling behind. How hard would it be to put logic in the client to detect an investigator (lurking or leeching, regularly emptying the share folder), and feed it false IP addresses, especially once the behaviour of an investigator is determined. The developers may have done the work years ago and we would never know.