A Lawyer Wishes to Pick Your Brain- Re Media Sentry

by Pamela Jones
Groklaw

October 28 2007

Another request from an attorney to pick your brains. Ray Beckerman asks the following in connection with the UMG v. Lindor litigation:
What data or documents should we ask MediaSentry for?

The Groklaw and Slashdot [ http://ask.slashdot.org/article.pl?sid=06/12/28/0141221 ] communities were so helpful in preparing for the deposition [ http://www.groklaw.net/article.php?story=20061229171726760 ] of the RIAA's "expert" witness, Dr. Doug Jacobson, we thought we'd come back and ask for your thoughts on what documents and/or data to request from the RIAA's 'investigator', MediaSentry, Inc. The documents produced so far are just printouts, which were used at Dr. Jacobson's deposition [ http://recordingindustryvspeople.blogspot.com/2007/03/deposition-of-riaas-expert-available.html ], specifically exhibits 6, 10, 11, 12, 13, and 14. Of course we have some ideas of our own about what to demand, but we want to leave no stone unturned.

It's an opportunity to help everyone become more technically accurate, and I'm sure the RIAA also wants to be certain that it has the right defendants, which is what the question fundamentally is. You may have read [ http://recordingindustryvspeople.blogspot.com/ ] that the judge in the Atlantic v. Dangler case just ruled that the RIAA could not have a default judgment because of insufficient evidence:

Clearly, plaintiffs are entitled to relief if Dangler downloaded and distributed the Copyrighted Recordings without plaintiffs’ consent. The question this Court must decide is whether plaintiffs have proven that those circumstances exist here. Although the complaint establishes that someone using the “KaZaA” online peer-to-peer file sharing service uploaded the Copyrighted Recordings, or otherwise offered them for distribution, the complaint does not identify details such as the time period during which the violations allegedly took place, or explain how that user, identified only by the username heavyjeffmc@KaZaA, was determined to be the defendant.

Clearly, judges are becoming more technically clueful, and that's where you can definitely contribute in a positive way.

Here are direct links to the exhibits, all PDFs that will download if you click the links (all of the exhibits are here [ http://recordingindustryvspeople.blogspot.com/2007/03/deposition-of-riaas-expert-available.html ]:

He didn't mention Exhibit 7 ("Kazaa Overlay" Study by Ross, Kumar, and Liang) [ http://www.ilrweb.com/viewILRPDF.asp?filename=umg_lindor_070223JacobsonEx7 ], Exhibit 8 (Diagram LAN router NAT) [ http://www.ilrweb.com/viewILRPDF.asp?filename=umg_lindor_070223JacobsonEx8, or Exhibit 9 (Pollution in P2P File Sharing Systems" Study by Ross, Kumar, Liang, and Xi) ], but it seems to me they would also be something to look at, to be thorough.

So, can you think of anything else? If you were representing Ms. Lindor, or were a technical expert, what else would you want to see? Remember that this is for discovery, and what he wants to request is *documents*. Look over what has already been produced, and then ask yourself if there are any other likely documents that could be helpful. Be specific, and don't assume he'll "just know". All the documents in the UMG v. Lindor case that are public are here [ http://info.riaalawsuits.us/documents.htm ]. It's a New York case, filed in the US District Court for the Eastern District of NY.

This is probably also a good time to remind you of this article, Admitting Computer Record Evidence after In Re Vinhnee: A Stricter Standard for the Future? [ http://www.lctjournal.washington.edu/Vol4/a06Offenbecher.html ], setting out some guidelines one court recently followed when deciding what is required before digital evidence can be admitted. The abstract explains:

In re Vinhnee, a Ninth Circuit Bankruptcy Appellate Panel decision, employed Edward Imwinkelried’s eleven-step foundation process for authenticating computer records. In employing the eleven-step process, the Vinhnee court articulated a stricter standard than has previously been used by most courts for admitting computer records into evidence. This Article will first consider the various foundation standards that courts have applied to computer records. Next, the Article will analyze the Vinhnee standard, consider its elements, and compare it to the previous standards and commentary. Finally, the Article will conclude that the Vinhnee approach reflects common concerns by courts and commentators, and may influence other jurisdictions.

01:37 PM EDT

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