Another Lawyer Would Like to Pick Your Brain, Please

Another Lawyer Would Like to Pick Your Brain, Please

By Pamela Jones
Groklaw

December 29 2006

Another lawyer would like to pick your brain. Ray Beckerman, the attorney for Marie Lindor in UMG v. Lindor [ http://info.riaalawsuits.us/documents.htm#UMG_v_Lindor ], would like to make sure he understands a tech issue, and he'd like your input on it. He's had input from other tech sites as well, but folks there told him to ask Groklaw, and so he is. You'll need to read some reports in order to help, and he includes links to them in his request.

I think you can sum up his viewpoint on the overview like this: the music industry is targeting end users, who are simple folk who lack the resources and sophistication to defend themselves adequately, even when they are innocent, and thus important legal issues are being decided on an uneven playing field. He's trying to do something about that, so we don't end up with lop-sided case law. This isn't at all about condoning copyright infringement. You all know where I stand on that. But he raises a real issue.

When you find yourself on an uneven field, one weapon that can help is to use what you have skillfully, as in David and Goliath. What he knows you have is technical expertise, and he'd appreciate it very much if you'd share that knowledge with him here, so he can prepare for an upcoming deposition. He asks for questions to ask an expert witness for the other side, but in addition, if you can point out flaws in the MediaSentry's investigations methods and/or Dr. Jacobson's materials, I think he'll be able to figure out the right questions from that.

Here's his request:

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As many of you may already know, the courts of the Netherlands and of Canada have rejected the "investigations" conducted by the RIAA's "investigator", Tom Mizzone of MediaSentry. See, e.g. BMG v. Doe [ http://decisions.fca-caf.gc.ca/en/2005/2005fca193/2005fca193.html ] and Foundation v. UPC Nederland [ http://www.ilrweb.com/viewILRPDF.asp?filename=foundation_upcnederland_060713AffirmanceonAppeal ] , based largely on the type of reasoning set forth in the indendent experts' report [ http://www.ilrweb.com/viewILRPDF.asp?filename=foundation_upcnederland_witnessdeclaration ] of Prof. Sips and Dr. Pouwelse of the Parallel and Distributed Systems research group of Delft University. Their report critiqued the "overly simplistic" nature of MediaSentry's work, in that it had omitted a number of procedures which would have been thought necessary to a sound online 'p2p filesharing piracy' investigation.

It should therefore come as no surprise that in the United States, more particularly in UMG v. Lindor [ http://info.riaalawsuits.us/documents.htm#UMG_v_Lindor ], in Brooklyn federal court, the RIAA is trying to prevent disclosure [ http://recordingindustryvspeople.blogspot.com/2006/09/riaa-tries-to-keep-defendants-lawyers.html ] of the "instructions", "parameters", and "processes" of MediaSentry's investigation. In fact, at the oral argument [ http://recordingindustryvspeople.blogspot.com/2006/12/oral-argument-held-in-umg-v-lindor-on.html ] of its protective order motion, the RIAA took the positions that (a) MediaSentry and its investigators are not experts at all; (b) MediaSentry will not testify as to any copyright infringement, but will merely testify as to what it did, and (c) the only witness who will actually be testifying that there was a copyright infringement will be a Dr. Doug Jacobson of Iowa State University, the founder and co-owner of Palisade Systems, Inc., who supposedly will connect the dots based on what MediaSentry will testify that it did.

They have submitted the following materials from Dr. Jacobson: an April 2006 boilerplate report [ http://www.ilrweb.com/viewILRPDF.asp?filename=umg_lindor_060412expertwitnessreportplaintiff ], a December 19th declaration [ http://www.ilrweb.com/viewILRPDF.asp?filename=umg_lindor_061220motcompelwoodyjacobsondeclaration ] in support of a motion, and a 26-page, single spaced, curriculum vitae [ http://www.ilrweb.com/viewILRPDF.asp?filename=umg_lindor_061226curriculumvitae ], which goes into such detail as identifying some of Dr. Jacobson's students.

Ms. Lindor has noticed Dr. Jacobson's deposition and requested documents from him [ http://recordingindustryvspeople.blogspot.com/2006/12/ms-lindor-seeks-deposition-and.html ]; the deposition is presently scheduled for February.

We are the attorneys for Ms. Lindor, the defendant in this law suit, a middle-aged Brooklyn woman who works as a home health aide, and -- believe it or not -- has never even used a computer in her life, much less been an "online distributor". In view of the great pool of technical talent out there among Groklaw's readers, we thought it appropriate to reach out to the technical community through the good offices of Groklaw to vet Dr. Jacobson's "report" and "declaration" and his voluminous curriculum vitae, and request input as to appropriate questions to put to this expert witness.

05:17 PM EST