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RIAA gets a chance to prove their case before a jury

28 September 2007 10:09 by Rich "vurbal" Fiscus | 40 comments

Next week will mark the first time a copyright infringement case brought by the RIAA for alleged copyright violations via P2P network actually makes it to a jury trial. The RIAA's evidence in the case of Virgin v. Thomas seems to hinge on the testimony of an expert witness whose expertise has already been called into question in another case.

In a deposition earlier this year, Iowa State University associate professor Douglas Jacobson testified about his forensic examination of a defendant's computer hard drive. The examination was done on behalf of the RIAA legal team, based on information provided by MediaSentry, a company that works with the entertainment industry to identify copyrighted works shared illegally on P2P networks.

His testimony states an assumption on his part that MediaSentry had conclusively proven an IP address registered to the defendant was used for sharing files. His conclusion, resulting directly from that premise, stated that despite a lack of either MP3 files that could have been shared or KaZaA software RIAA attorneys claim was used to share the files doesn't exxonerate the defendant, but rather shows that she has another computer.

Despite his complete lack of physical evididence, a report he submitted to RIAA lawyers indicates that he can "demonstrate how defendant's internet account and computer were used." However, when pressed by the defense he admitted that what he meant by a demonstration was quoting MediaSentry's results.

Upon futher questioning, he admitted that not only did he not have any evidence of files being shared from the defendant's hard drive, but also that he didn't bother to document his forensic examination aside from the conclusions he reached, despite the capability of EnCase, the forensic examination software he uses, to create detailed reports. His said "I examined the hard drive, found no evidence of file sharing software or audio files, and so there was nothing to document."

Finally, he testified that his methods have "not been vetted through the scientific community."

Although that testimony relates to a different case, it clearly shows a blueprint for deconstructing Jacobson's testimony, and unless he can back it up with more evidence against Jammie Thomas, the RIAA's case looks to be in big trouble.

Of course, RIAA lawyers haven't done their case any favors by attempting to game the legal process to prove facts by judicial fiat. Earlier this month their request for summary judgement was rejected by a judge on multiple grounds, including defense objections that the RIAA wouldn't even provide a list of songs the defendant is accused of sharing. Additionally, the plaintiff's motion wasn't filed before a deadline set by the court.

Jacobson's entire deposition, as well as supporting court exhibits is available online.

Sources:
GrokLaw
Recording Industry vs The People

Permalink to this article

Law professors argue against making available as infringement in Jammie Thomas appeal (20 June 2008)

RIAA challenges Jammie Thomas' excessive damages complaint (13 November 2007)

19 new Universities receive RIAA letters (18 October 2007)

Yahoo! VP says down with DRM (9 October 2007)

Thomas to appeal P2P trial verdict (8 October 2007)

Bush Administration on P2P trial decision (7 October 2007)

Woman to pay full record label damages herself (5 October 2007)

IFPI statement on U.S. file sharing verdict (5 October 2007)

First U.S. file sharing trial kicks off (3 October 2007)

Judge criticized RIAA in decision (24 September 2007)

Judge demands evidence from RIAA (14 September 2007)

EFF shows how RIAA lawsuits have failed (29 August 2007)

RIAA sued by consumer citing illegal tactics (17 August 2007)

Woman accuses RIAA of illegal investigatory practices (5 July 2007)

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WhoCares3 (Newbie) 29 September 2007 11:36
Pirating won't ever stop just as RL thieves never cease to steal even though they have had many examples of conviction to look upon. [ + quote]
o0cynix0o (Newbie) 29 September 2007 11:38
When are these people going to learn that in most cases the people uploading stuff are usually fans. I can't speak for everyone, but I don't upload stuff I don't think is worth the time. [ + quote]
svtstang (AfterDawn Addict) 29 September 2007 11:42
webe123 I 100% agree with you! duke888 what are you on? It seems you are proud of your lawsuit, although you may have gone through the process you in fact have no idea what you are talking about. Read the article, the RIAA has no TRUE evidence to take the defendent down. The point I take from all this is that this case can set a unparalleled precedent for future cases. If you have read up on all this, you would have known that the RIAA practices in a very illigiamite way. From accusations based on no evidence to acting like a family member of the accused in a rouse to obtain information to be used in court, the RIAA does more wrong then those those they go after. By losing this case, the RIAA will suffer a painful kick in the gonads. THINKING you know law does not mean you KNOW law. Your case is neither here nor there, it has nothing to do with the case at hand. [ + quote]
AtLaw51 (Inactive) 29 September 2007 11:43
Duke you are correct the issue is copyright laws and how they need to be inforced. To do so a case has to be on the books for a foundation. This case is about copyright infringement, I have read your case and yes they teach this case to all law students in all of the colleges. I am a Corporate attorney who works for major companies and knows how this is going to affect the future protection of rights for owners of the property in question. As for the remark the other fellow made that they didn't want to go to trial is totall bogus as he really doesn't understand copyright infridgement protection and enforcement! This case will have a major impact on file sharing as we know it. [ + quote]
duke8888 (Junior Member) 29 September 2007 11:50
*Originally posted by svtstang:* webe123 I 100% agree with you! duke888 what are you on? It seems you are proud of your lawsuit, although you may have gone through the process you in fact have no idea what you are talking about. I am not proud of my case as I had people uplaoding the images to my service just like the p2p I wasn't the one who posted playboy images but users to the system. It is the same in this case except they have logs of people who have downloaded their files. Also dvd movies are being tracked as well on the internet and a large landmark case in this area is coming down the road. All I am saying is this case is a case of copyright infringement its that plain and clear no questions about it. Thats what I am saying! The attorney who left a remark backed my comments up so maybe you don't understand what it is they are trying to do I do and don't want to go down that road ever again its not worth the time, money and possiblt the lost of freedom. Read the article, the RIAA has no TRUE evidence to take the defendent down. The point I take from all this is that this case can set a unparalleled precedent for future cases. If you have read up on all this, you would have known that the RIAA practices in a very illigiamite way. From accusations based on no evidence to acting like a family member of the accused in a rouse to obtain information to be used in court, the RIAA does more wrong then those those they go after. By losing this case, the RIAA will suffer a painful kick in the gonads. I agree if they lose but they will not! THINKING you know law does not mean you KNOW law. Your case is neither here nor there, it has nothing to do with the case at hand. [ + quote]
svtstang (AfterDawn Addict) 29 September 2007 12:00
I have no beef with you duke, I was more or less trying to seperate your case from this. Although both cases involve copyright infringement, there differences as I am sure you can also point out. The fact that the RIAA did not report the forensic results since "there were no files on the hard drives hence nothing to report" says enough for me. The bottom line is our government is destroying our rights. Fair use does not exist. It is ok to use a dvr to record tv show but it is illegal to download, downloading can get you classified as a terrorist and you can be further scrutinized thanks to the lovely patriot act. We live in the United States of Corporate America, us consumers are nothing more then a mean to big buiness's (grammar) end......a new boat. All the luck to the defendant in this case. [ + quote]
duke8888 (Junior Member) 29 September 2007 12:09
Thanks for getting back. The same thing is true with me they had no proof of files on hard drive only a forsenice report from a consultant and with that and the expert witness they were able to win a judgement against me. As long as a fronsenic report was available example download info that is evidence enought. In my case I was lucky that I didn't lose my business or home because they could have done so. I agree about the feds getting involved and its getting worse everyday. A couple of years ago the local feds here in Pittsburgh went all the way to California and indited Tommy Chong and convicted him and sent him to jail ro 1 year and a day just for having a website selling bongs no drugs. He had to pay a million dollar fine and shut down his web site which his son was running just using his name. That goes to show you if they want to get you they will. Its getting worse everyday. I won't download music but pay for the music I want from paid download sites. I won't download dvd movies any longer as they are tossing people in jail everyday for that. So we have to be very careful what we do on the internet big brother is in the house and watching our every steps thanks to the Patriot act! [ + quote]
dmacleo (Newbie) 29 September 2007 13:41
a lawyer who cannot spell enforced. *Originally posted by AtLaw51:* Duke you are correct the issue is copyright laws and how they need to be inforced. [ + quote] This message has been edited since posting. Last time this message was edited on 29 September 2007 13:42
webe123 (Inactive) 29 September 2007 16:29
*Originally posted by AtLaw51:* Duke you are correct the issue is copyright laws and how they need to be inforced. To do so a case has to be on the books for a foundation. This case is about copyright infringement, I have read your case and yes they teach this case to all law students in all of the colleges. I am a Corporate attorney who works for major companies and knows how this is going to affect the future protection of rights for owners of the property in question. As for the remark the other fellow made that they didn't want to go to trial is totall bogus as he really doesn't understand copyright infridgement protection and enforcement! This case will have a major impact on file sharing as we know it. Your grammar is poor and YOU expect me to believe you are a LAWYER? And then you want to talk BULLSHIT about me not knowing what is going on? At least I can spell. You apparently cannot and leaves me doubting you are what you SAY you are. I mean come on, THREE typos? "inforced" is ENFORCED "totall" is TOTAL And last..."infridgement" is INFRINGEMENT! Go back to school and learn to spell and maybe then I will believe the "lawyer" part! And as far as the law is concerned, you apparently have not followed this case very well: On April 9th, 2007, a stipulation of discontinuance with prejudice was entered, which means that Santangelo is the prevailing party and therefore eligible to file a motion to recover attorneys' fees.[16] SOURCE: http://en.wikipedia.org/wiki/Santangelo_v._RIAA [ + quote] This message has been edited since posting. Last time this message was edited on 29 September 2007 16:42
webe123 (Inactive) 29 September 2007 16:34
And as far as the law goes, you also are just taking potshots and not calling any particular cases to mind...not very "lawyer" like if you ask me. [ + quote] This message has been edited since posting. Last time this message was edited on 29 September 2007 16:36
xtago (Newbie) 30 September 2007 5:47
*Originally posted by duke8888:* You know nothing about the federal system I have been through it studied it and learned from it, it is a done deal and all this is a formality you will see judgement by jury a no brainer! The begining of the end for P2P downloaders and music downloaders. I know what your saying it's a simple case of the law and how you take it. You simply need to be sending something copyright and your breaking the law, simply listening to copyrighted stuff is also breaking the law even if you do buy it. anyway, the problem with P2P cases is that 9 times out of 10 there's no evidence to back up the RIAAs case, you can't keep suing people and keep winning if you don't have any evidence. In your case I take you had pictures posted them up but I'd also hazard to say you still had the files on your HD deleting doesn't delete a file, it simply changes the first hex code to 00 meaning it doesn't exist to the OS but the rest of the file sits there until it's writen over. which if the files were found on your HD then yeah you could be busted for posting the pics seeing as you have them on your HD. In these cases, the expert couldn't provide any evidence plus has nothing to basicly show if there is or isn't any evidence at all and so his expertness will be questioned in a court of law. Cases have been dumped because of that alone. The other problem is that there's no P2P software there's no copyright files and there's no logs etc of this person even sending these copyrighted files out to someone else. So again you do need evidence to prove as the RIAA need evidence to prove they did send the files. and the sued people need evidence to prove they didn't send them and in this case it's seem the sued people are able to proive they didn't send them out. it's a big differance. [ + quote]
webe123 (Inactive) 30 September 2007 8:12
*Quote:* *Originally posted by duke8888:* You know nothing about the federal system I have been through it studied it and learned from it, it is a done deal and all this is a formality you will see judgement by jury a no brainer! The begining of the end for P2P downloaders and music downloaders. I know what your saying it's a simple case of the law and how you take it. You simply need to be sending something copyright and your breaking the law, simply listening to copyrighted stuff is also breaking the law even if you do buy it. anyway, the problem with P2P cases is that 9 times out of 10 there's no evidence to back up the RIAAs case, you can't keep suing people and keep winning if you don't have any evidence. In your case I take you had pictures posted them up but I'd also hazard to say you still had the files on your HD deleting doesn't delete a file, it simply changes the first hex code to 00 meaning it doesn't exist to the OS but the rest of the file sits there until it's writen over. which if the files were found on your HD then yeah you could be busted for posting the pics seeing as you have them on your HD. In these cases, the expert couldn't provide any evidence plus has nothing to basicly show if there is or isn't any evidence at all and so his expertness will be questioned in a court of law. Cases have been dumped because of that alone. The other problem is that there's no P2P software there's no copyright files and there's no logs etc of this person even sending these copyrighted files out to someone else. So again you do need evidence to prove as the RIAA need evidence to prove they did send the files. and the sued people need evidence to prove they didn't send them and in this case it's seem the sued people are able to proive they didn't send them out. it's a big differance. Thank you xtago for your post.That was what I was trying to say to these other people who believe the playboy case was just like this p2p case. The playboy case had EVIDENCE against them on their computer, this person being sued does not and the RIAA "expert" witness has already been called into question and had his head handed to him in another case. Makes a world of difference when the RIAA has to explain their tactics to a judge. [ + quote]
webe123 (Inactive) 30 September 2007 15:24
*Originally posted by duke8888:* You will see when a decsion is made............. This case basis is COPYRIGHT Infringement of downloading sharing copyrighted material. Wheter or not it is transmitted or posted it has the same ending COPYRIGHT INFRINGEMENT! And again, YOU WILL SEE it has NO MEANING! The person in that other playboy case was guilty because they actually FOUND INFRINGING EVIDENCE! There IS NO EVIDENCE in this case and so far the experts they have testifying for the RIAA have ALREADY been called into question about their methods. I don't know why that is so hard for you to grasp! [ + quote]
Vector_V (Newbie) 30 September 2007 22:25
*Originally posted by AtLaw51:* Duke you are correct the issue is copyright laws and how they need to be inforced. To do so a case has to be on the books for a foundation. This case is about copyright infringement, I have read your case and yes they teach this case to all law students in all of the colleges. I am a Corporate attorney who works for major companies and knows how this is going to affect the future protection of rights for owners of the property in question. As for the remark the other fellow made that they didn't want to go to trial is totall bogus as he really doesn't understand copyright infridgement protection and enforcement! This case will have a major impact on file sharing as we know it. I'm a little concerned with the concept of a "corporate attorney" misspelling "enforced", "total" and "infringement", as well as capitalizing the word "corporate" for no apparent reason. Interesting. edit: Sorry, Webe123 - was scrolling down and missed your observation of said indiscretions. [ + quote] This message has been edited since posting. Last time this message was edited on 30 September 2007 22:28*
borhan9 (AfterDawn Addict) 1 October 2007 5:08
I wish Thomas all the luck in the world. [ + quote]
duke8888 (Junior Member) 1 October 2007 6:25
*Quote:* *Originally posted by AtLaw51:* Duke you are correct the issue is copyright laws and how they need to be inforced. To do so a case has to be on the books for a foundation. This case is about copyright infringement, I have read your case and yes they teach this case to all law students in all of the colleges. I am a Corporate attorney who works for major [ + quote] This message has been edited since posting. Last time this message was edited on 1 October 2007 6:26
AtLaw51 (Inactive) 1 October 2007 6:30
*Quote:* *Originally posted by AtLaw51:* Duke you are correct the issue is copyright laws and how they need to be inforced. To do so a case has to be on the books for a foundation. This case is about copyright infringement, I have read your case and yes they teach this case to all law students in all of the colleges. I am a Corporate attorney who works for major companies and knows how this is going to affect the future protection of rights for owners of the property in question. As for the remark the other fellow made that they didn't want to go to trial is totall bogus as he really doesn't understand copyright infridgement protection and enforcement! This case will have a major impact on file sharing as we know it. I'm a little concerned with the concept of a "corporate attorney" misspelling "enforced", "total" and "infringement", as well as capitalizing the word "corporate" for no apparent reason. Interesting. edit: Sorry, Webe123 - was scrolling down and missed your observation of said indiscretions. It is so sad that morons have to make a big issue over such a small typo error, if you really need to know I use a voice to PC software package to do my typing for me and the spell check doesn't interface with this site. I have a need for it since I lost my arm while on duty in Iraq so if you need to dwell on such a small issue you are truly a big edited by ddp! [ + quote] This message has been edited since posting. Last time this message was edited on 1 October 2007 10:48*
webe123 (Inactive) 1 October 2007 7:38
*Originally posted by AtLaw51:* It is so sad that morons have to make a big issue over such a small typo error, if you really need to know I use a voice to PC software package to do my typing for me and the spell check doesn't interface with this site. I have a need for it since I lost my arm while on duty in Iraq so if you need to dwell on such a small issue you are truly a big edited by ddp! Listen up edited by ddp! I have HAD IT WITH YOU! It is sad about your arm if that is what happened, but that does NOT change the fact that you don't know what the hell you are talking about when it comes to this case! And my statement stands about you not ONE TIME quoting any cases where the RIAA has won on the grounds of evidence as in this case. I see you failed to do that again. You know why you can't? BECAUSE THERE ISN'T A CASE LIKE THIS! So stop pretending you know the outcome of this case when you don't know edited by ddp! [ + quote] This message has been edited since posting. Last time this message was edited on 1 October 2007 10:50
AtLaw51 (Inactive) 1 October 2007 8:11
Webe its so sad that an idiot like you exists today. You are the edited by ddp idiot because you are so worked up about an issue that doesn't effect you unless you are one of those types of people who wants things in life without having to pay for them. You might be a bootlegger who likes downloading videos, music, games and not having to pay for them in other words a common cyberspace crook! Hold onto your shorts before you blow out what is left of your puny brain! MOVE ON! [ + quote] This message has been edited since posting. Last time this message was edited on 1 October 2007 10:51
pcanisius (Newbie) 1 October 2007 9:55
For my major (digital media arts) we are required to take digital media law and ethics (aka a summary of all things copyright) and one of the largest parts of the problem for copyright in this digital era is the fact that the copyright laws were ment for hard printed documents. Eventually it was expanded to cover different forms of media such as film and audio, but until the mid 90s there was a huge grey area where the internet falls into play invloving copyright. The playboy case was one of the first cases invloving the internet and copyright infringment, but in that case it was because someone had uploaded pics from playboy and was profiting from them. However there may be some correlation between the hosting of files for p2p and fileshareing. Lawyers will try to connect any even remotely related cases just to have more grounds for a case. What it comes down to is whether the judge sees a link between the 2 cases. [ + quote]
svtstang (AfterDawn Addict) 1 October 2007 9:55
What was once a civil debate has been lost :( [ + quote]
ddp (Moderator) 1 October 2007 10:55
webe123 & AtLaw51, lightning struck!!! posts edited. ANYBODY else wants to be banned? [ + quote]
duke8888 (Junior Member) 5 October 2007 14:43
*Quote:* *Quote:* *Originally posted by duke8888:* You know nothing about the federal system I have been through it studied it and learned from it, it is a done deal and all this is a formality you will see judgement by jury a no brainer! The begining of the end for P2P downloaders and music downloaders. I know what your saying it's a simple case of the law and how you take it. You simply need to be sending something copyright and your breaking the law, simply listening to copyrighted stuff is also breaking the law even if you do buy it. anyway, the problem with P2P cases is that 9 times out of 10 there's no evidence to back up the RIAAs case, you can't keep suing people and keep winning if you don't have any evidence. In your case I take you had pictures posted them up but I'd also hazard to say you still had the files on your HD deleting doesn't delete a file, it simply changes the first hex code to 00 meaning it doesn't exist to the OS but the rest of the file sits there until it's writen over. which if the files were found on your HD then yeah you could be busted for posting the pics seeing as you have them on your HD. In these cases, the expert couldn't provide any evidence plus has nothing to basicly show if there is or isn't any evidence at all and so his expertness will be questioned in a court of law. Cases have been dumped because of that alone. The other problem is that there's no P2P software there's no copyright files and there's no logs etc of this person even sending these copyrighted files out to someone else. So again you do need evidence to prove as the RIAA need evidence to prove they did send the files. and the sued people need evidence to prove they didn't send them and in this case it's seem the sued people are able to proive they didn't send them out. it's a big differance. Thank you xtago for your post.That was what I was trying to say to these other people who believe the playboy case was just like this p2p case. The playboy case had EVIDENCE against them on their computer, this person being sued does not and the RIAA "expert" witness has already been called into question and had his head handed to him in another case. Makes a world of difference when the RIAA has to explain their tactics to a judge. Hey mister know it all read and weep! GAME OVER MAN! http://www.pcworld.com/article/id,138115/article.html# Here is the link to a court judgement for sharing music files open the flood gates and you all better watch yourself they are coming for us.. Like I said you don't know jack shit! [ + quote]
duke8888 (Junior Member) 5 October 2007 14:49
*Originally posted by pcanisius:* For my major (digital media arts) we are required to take digital media law and ethics (aka a summary of all things copyright) and one of the largest parts of the problem for copyright in this digital era is the fact that the copyright laws were ment for hard printed documents. Eventually it was expanded to cover different forms of media such as film and audio, but until the mid 90s there was a huge grey area where the internet falls into play invloving copyright. The playboy case was one of the first cases invloving the internet and copyright infringment, but in that case it was because someone had uploaded pics from playboy and was profiting from them. However there may be some correlation between the hosting of files for p2p and fileshareing. Lawyers will try to connect any even remotely related cases just to have more grounds for a case. What it comes down to is whether the judge sees a link between the 2 cases. Hey PC like I said the writing was on the wall. This was the arguement that Thomas had the same as I did with no luck: Here is the link of the decision handed down. http://www.pcworld.com/article/id,138115/article.html# "Copyright infringement is a strict liability offense, and Plaintiffs need not demonstrate Defendant's intent to infringe, or even knowledge of infringement, in order to prove copyright infringement," the companies said in their complaint. I really hate these people who think they know it all when they never went through the court process like I did. I spent almost 3 years on my case and learn a lot. [ + quote]
xtago (Newbie) 6 October 2007 22:41
*Quote:* Hey mister know it all read and weep! GAME OVER MAN! http://www.pcworld.com/article/id,138115/article.html# Here is the link to a court judgement for sharing music files open the flood gates and you all better watch yourself they are coming for us.. Like I said you don't know jack shit! interesting, only because of this. "Copyright infringement is a strict liability offense, and Plaintiffs need not demonstrate Defendant's intent to infringe, or even knowledge of infringement, in order to prove copyright infringement," the companies said in their complaint. This would mean they get paid out regaurdless, pointless even going to court. I would have thought this law would go against parts of the core US laws. I don't bother buying music myself, due to them sueing their own customers. [ + quote]
nobrainer (Inactive) 7 October 2007 1:33
hmm well it seems the riaa used a case that got overturned to convince the jury, but the riaa failed to mention the fact that "making available" was not the open close argument it portrayed to the courtroom! http://yro.slashdot.org/article.pl?sid=07/10/06/228202&from=rss *Originally posted by slashdot link:* NewYorkCountryLawyer writes "When a Judge agreed with the RIAA's claim that 'making available' was actionable under the Copyright Act, in Atlantic v. Howell, the RIAA was quick to bring this 'authority' to the attention of the judges in Elektra v. Barker and Warner v. Cassin. Those judges were considering the same issue. When the that decision was overturned successfully, however, they were not so quick to inform those same judges of this new development. When the defendants' lawyers found out � a week after the RIAA's lawyers learned of it � they had to notify the judges themselves . At this moment we can only speculate as to what legal authorities they cited to the judge in Duluth, Minnesota, to get him to instruct the jurors that just 'making available' was good enough." [ + quote]