Thursday, June 11, 2009

Court rules MediaSentry did not violate law, & limits scope of defendant's expert, in Capitol Records v. Thomas

In Capitol Records v. Thomas-Rasset, the Court has denied defendant's motion to suppress the MediaSentry evidence on the ground of illegality, holding that the evidence was not obtained illegally.

The Court also partially granted and partially denied the RIAA's motion to exclude the testimony of defendant's expert witness, ruling that he would not be permitted to testify on some of the subjects touched upon in his report. Judge Davis ruled that Prof. Kim could testify about the "possible scenarios", but could not opine as to what he thinks "probably" occurred. The court also ruled that, "given the evidence that there is no wireless router involved in this case, the Court excludes Kim's opinion that it is possible that someone could have spoofed or hijacked Defendant's Internet account through an unprotected wireless access point. Similarly, because Kim explicitly testified that this case does not involve any "black IP space," or any "temporarily unused" IP space ...., he is not permitted to opine at trial that hijacking of black IP space or temporary unused IP is a possible explanation in this case." Dr. Kim was also precluded from testifying as to whether song files were conspicuously placed in a shared files folder or were wilfully offered for distribution. The judge also precluded him from testifying about Kazaa's functioning, but it was unclear to me what the judge was precluding him from saying, because the offered testimony seemed to relate only to the question of whether the Kazaa-reported IP address precluded the possibility of the device having been run behind a NAT device.

Additionally, the Court granted the plaintiffs' motion to preclude defendant's assertion of a "fair use" defense, since "fair use" had never been pleaded in defendant's answer or otherwise brought up by her previous attorneys.

The Court denied the motion to preclude defendant's reference to other cases, but reminded the parties that they are required to adhere to the Federal Rules of Civil Procedure and the Federal Rules of Evidence.

Without opposition, the Court further ruled that the prior trial would be referred to as a "prior proceeding" and that no reference would be made to the outcome of that trial, and that defendant would not interpose an innocent infringement defense.

June 11, 2009, Decision Ruling on On Limine Motions

[Ed. note. A silver lining in this decision is the Court's discussion of the Daubert principles, which now becomes the law of the case. Application of this thinking to Dr. Jacobson's testimony will preclude him from testifying at all. -R.B.]

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...

These decisions are insane! Especially the one regarding the legality of the MediaSentry (phony) evidence.

This man questions that if MediaSentry representatives show up to testify and be examined as they should be required to do, are they subject to arrest for illegal investigations in this state? If the answer is yes, then this man must assume that their "investigations" are de facto illegal.

{The Common Man Speaking}

Anonymous said...

I don't understand what the judge means.

"MediaSentry conducted no activity in Minnesota ..."

"... all the information was sent by Defendant from her computer to MediaSentry's computer in a state other than Minnesota."

"... merely monitoring incoming internet traffic sent from a computer in another state..."

There are some problems.

1. Defendant certainly didn't send data to anyone. Maybe, she installed a program, and later that program allowed MediaSentry to download stuff.

2. MediaSentry did not merely monitor anything! It did a heck of a lot more!

3. Under this interpretation, if you access a computer across state lines, apparently your actions aren't taking place in that state. That must be a joke; consider hacking laws, e.g.


Anonymous said...

Quite a bit to digest. What does it mean/point to, Ray?


raybeckerman said...

It could mean victory for Jammie.

The judge described the Daubert standards quite carefully.

Neither MediaSentry nor Jacobson will be able to satisfy those standards, which means that their testimony, and MediaSentry's documents, will not be admissible.

Which means the RIAA's case will be dismissed at the close of the plaintiffs' case.

T2 said...

The judge's decision is well-written and reasonable. The emphasis on Daubert is essential and I cannot help but chuckle at the reminder to the parties that they must abide by the Rules (which the RIAA did not, leading to the first trial being set aside).

I was also surprised at first about the judge's assertion that "MediaSentry conducted no activity in Minnesota" but it is, in fact, the basis upon which most Internet-related transactions are assessed. Non-US Companies with data centers that engage in activity that is against US law, even if that activity takes place by US customers, are taken to court in their country of operations (see , for example). Even within the US alone, as another somewhat related example, a telecommuter who resides in one state and works for a company in another state via the Internet, is taxed based on their state of residence. So, there is substantial informal (if not legal) "precedent" behind using the location in which the actual work gets done (investigative work for MediaSentry, employment for the telecommuter, hosting/delivery of songs for AllOfMP3) as the one whose laws govern the legality of the actions. This is certainly a hand-wavy line of thinking, and I am not attempting to make a water-tight legal point; just offer some intuitive insight behind the judge's statement.

Anonymous said...


This man is confused. The judge says that MediaSentry didn't violate the law, and then elucidates Daubert standards that would preclude their use as evidence if properly applied. While Daubert is different than illegal, unlicensed investigations, this still seems like a seesaw on whether or not MediaSentry data is admissible.

Regarding MediaSentry being in another state, note that no computer automatically sends data to MediaSentry computers. MediaSentry computers, in violation of the licensing terms for the programs they use, request data from the target computer for investigation and extortion purposes. MediaSentry took all the steps of instigating the making of an infringing copy of the material since without their direct and directed actions no data would have ever been transmitted or copy of it made.

If you are right about the impact of the Daubert standards on this case, shouldn't the RIAA be writing up their dismissal motion even as we post here? Surely they can't afford to lose on these grounds.

{The Common Man Speaking}

Anonymous said...

T2, this man is sorry to tell you that your information is out of date. You say:

a telecommuter who resides in one state and works for a company in another state via the Internet, is taxed based on their state of residence.

In a case in 2005 a man telecommuting from Tennessee into a job in New York was sued by the state of NY for unpaid income taxes. Although he only spent 25% of his time in NY, they sued for -- and our outrageously stupid Supreme Court allowed -- and got the other 75% of his income tax as well. You can read the story at:

{The Common Man Speaking}

Anonymous said...

I agree with zyxxy, and respectfully submit that MediaSentry were subject to Minnesota law.

I further respectfully submit that, since they were subject to Minnesota law, they violated Minnesota law as described by defendant.

Goldhaber v. Kohlenberg. S.Ct.NJ Docket A-5114-05T2 accessed through 6/11/09 11:06 PM CDT.

From my read of that opinion, I gather the Goldhaber court was following Blakey v. Continental Airlines, 164 N.J. 38, 67 (2000) (quoting World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490, 501 (1980)).

Zippo Manufacturing Company v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997). This one seems (in my inexpert opinion) to be the one that a lot of courts are going to in determining jurisdiction.

-Quiet Lurker

Anonymous said...

Putting aside whether its Minnesota or some other state law that applies, the judge also stated that violation of state licensing laws (a gross misdemeanor) would not be a crime with enough "evil purpose" to invalidate one-party consent protection under the Wiretap Act. This is probably the most troubling aspect of his opinion, because it is clearly not supported by the case he cited, the legislative history, or the plain meaning of the statute.

Its interesting that the judge doesn't find moral wrong in the actions of RIAA despite his near acknowledgment that they were responsible for the commission of gross misdemeanors somewhere.

Perhaps defendants feel similarly about their actions - the wrongfulness of downloading or sharing a song doesn't cut deeply into our moral nerves, even less so for children raised in a world of online sharing.

Then, for a behavior that is not instinctively felt as wrong, in the way that physically harming another is, how do we judge right from wrong?

Today's answer: we dismiss orchestrated violations of consumer protection law on the one hand, and allow grossly punitive damages on the very same protected consumers for negligible actual harm, on the other.

Anonymous said...


You're certainly right about tax residences. And you're also correct that it's easier to pursue legal avenues against a person or business in the place where that person or business physically is.

The RIAA claimed Thomas made a copy of the file and uploaded it to MediaSentry. But what really happens is that KaZaA waits until a client (MediaSentry) requests a file, then KaZaA copies it and uploads it and MediaSentry downloads it. Thomas certainly doesn't sit there waiting for MediaSentry. At the moment of copying, the KaZaA server (Thomas's machine?) is doing what MediaSentry asked it to -- nobody else is involved at that time.

As I recall, in internet gambling law, where the computation or copying happens matters -- on the server (Thomas's machine?) or client (MediaSentry's machine). Here, the copying allegedly happened on Thomas's machine. But since the copying was caused directly by MediaSentry, it seems to me that means MediaSentry was acting in Minnesota.

T2, your example of websites hosted abroad shows the opposite of what you think -- if the gambling is happening on the servers abroad, then that gambling isn't violating US laws! (Or so it once was, but now it's gotten more complicated.) Just as the gambling happens abroad, MediaSentry's action was happening in Minnesota, I believe.

If MediaSentry wasn't acting in Minnesota, it seems hard to square this case with internet gambling laws and, as I mentioned, hacking laws.


Anonymous said...

Your telecommuter example is incomplete because it only addresses wages.

Suppose that I am employed by a New York company but live and work in Florida. My company sells my services to a California client for their office in Minnesota.

My wages would be taxable in Florida because I was physically located in Florida when the work was performed. If I performed the work in Minnesota, I would have to pay Minnesota wage taxes.

The sale of the services (the product of my labor) would be taxable in Minnesota because that is where they were delivered. If the client took delivery in California, they would pay California taxes, and could be taxed again if the client delivered them to Minnesota.

To me this ruling indicates that Minnesota has lost jurisdiction because parts of the transaction were performed outside of State boundaries. I am curious if the State of Minnesota agrees.

I also have to criticize the judge for accepting this argument at the bottom of page 2:

A. MediaSentry’s Actions
Peer‐to‐peer networks allow Internet users to connect to each other and transfer files directly from user to user. (Jacobson Decl. ¶ 2, Pls. Ex. A.)

This is a gross misrepresentation of what is actually happening. Files are never transferred from one computer to another. The information contained in a file on the host computer is sent to the receiving computer. The receiving computer uses that information to create a new file. You end up with 2 files that contain the same information, but neither of the files has moved from where it was originally created.

Just a biased observer

R Nebblesworth said...

I don't understand why you think the Daubert discussion is so significant? It looks (to this 3L) like a thorough but otherwise pretty plain application of the relevant law to the facts.

Anonymous said...

The RIAA members can't aford to lose this case.

They can't afford to run away from it.

My money is on them stonewalling till the next century arrives.


Anonymous said...

(posting with a sign-off this time)

Can you clarify why the discussion of Daubert is so important? To me it just looks like a plain, albeit thorough, vanilla application of the controlling law to the facts. Also, didn't this judge already let Jacobson testify in the first trial?

-R. Nebblesworth

Reluctant Raconteur said...

I think the MediaSentry ruling is logical if not necessarily correct.

Basically, he is ruling that if the investigator was never physically in Minn during the investigation, Minn state law doesn't apply. If the law doesn't apply, the fact that MS didn't conform is moot.

OTOH, I think the State of Minn does have an interest in this decision. This was an investigation of a Minn citizen; for activity conducted in Minn; to produce evidence used in the federal court with jusridiction for Minn.

If the Stat AG doesn't take some action against MS or step in on this case, I don't see there being anything to appeal. There isn't any legal opinion contrary to the judges ruling.

T2 is correct in that internet transactions are still in legal flux. Judges are still making law in this area. IMHO, it won't be privacy issues that settle this area of law but the sales tax and other financial cases. Follow the money.

Alter_Fritz said...

Ray wrote: Application of this thinking to Dr. Jacobson's testimony will preclude him from testifying at all.

While I do remember from the one(1) deposition of this guy that was done by you so far what he knows (or better; NOT knows) and what he can testify about and while I think too that he could not testify as an expert: What makes you think that he actually will not?
I mean, in the first trial he did despite his incompetence and no-knowledge as expert and in this new trial the defense has not made motions to preclude this guy from playing an expert for plaintiffs afair.
The judge isn't bound to apply thinking to anything sua sponte, is he?

raybeckerman said...

In the first trial, Mr. Toder did not object to his testifying.

Judge would exclude him only if the opposing attorney objects.

This time, I'm pretty sure defendant will object.

Gamer Curmudgeon said...

Can the objection be raised at trial, or does defense have to have served notice that they intend to object?

raybeckerman said...

Yes it can be raised at trial. Jammie's lawyers should be permitted to "voir dire" the MediaSentry guy, since he is offering evidence based on "scientific, technical or other specialized knowledge". If the "voir dire" gives them a basis for objecting to his introduction of the documents or technical testimony -- they can object at that time. If the judge applies the standards at pages 13-14 of his opinion, he will not permit the testimony.

Same for Jacobson.

raybeckerman said...

The list of objections filed today demonstrates that defendants' counsel certainly do plan on objecting to the MediaSentry/Jacobson junk on the grounds that it is not based on sufficient facts or data, it is not the product of reliable principles and methods, and/or the principles and methods were not applied reliably to the facts of the case.

Anonymous said...


You can break a state's laws without physically entering that state, can't you?


Reluctant Raconteur said...


Only if those laws apply. The judge says they don't, so unless the State AG steps up and declares differently, for this case they don't. iirc, MS hasn't been found guilty (have they actually been charged?) of violating the Minn investigator law, so for the judge to rule that the evidence is in or out is his judgement.

Even if he were to rule the other way, I am not sure the evidence wouldn't still be within the judges descretion to admit in a civil case.

The daubert criteria is much better as a defense. Get it thrown out on the basis of the facts (they didn't do it right) rather than a secondary technicality.

Anonymous said...

Russell said, "Basically, he is ruling that if the investigator was never physically in Minn during the investigation, Minn state law doesn't apply. If the law doesn't apply, the fact that MS didn't conform is moot."

Russell said, "Only if those laws apply. The judge says they don't...".

This is begging the question -- Russell, you're assuming the judge is correct but have yet presented no reason to believe it.


Reluctant Raconteur said...


Makes no difference if I think he is correct, only the appeals courts opinion matters at this point. Personally, I didn't think the law made any exception to where the investigator was, just defined the behaviors that would require the law to be applied. OTOH, I can't say he is wrong. If the law doesn't apply, its rules are moot, no matter how many of them you may have violated.

Isn't that basically what the defense is around the term 'phonocard'. the logic in that defense is that even if songs were distributed, no physical items were, and that is what the law requires, therefore the distribution is moot because the law doesn't apply.

I do think that internet 'presence' is a matter that is still evolving in law. Most laws were written before the internet and presumed certain things to be true which are not necessarily so in a digitial world.