The world is great. The RIAA and its associated music companies make the world great by the service that they provide, expensive as it is to them to provide it. The ONLY thing that isn’t great is pirates who cost the music industry it’s metaphoric arms and legs in lost revenue and legal costs. People like the defendant.
Just look at the testimony of Dr Jacobson, the music industry’s P2P expert who testified today in Sony BMG vs Tenenbaum. Dr Jacobson has never EVER been spoofed or rickrolled in all his internet life. His has been the textbook perfect internet life, no faulty software, no physhing, no rickrolling… the only fly in the ointment being P2P illegal music sharers, just ganging up to force him to download copyrighted music. People like the defendant.
Dr Jacobson did not, or could not, correct yesterday’s bombshell that there was no actual proof the defendant had at any time had a single file downloaded from him, and thus had committed the offenses the plaintiffs claim.
His opinion was based on the evidence that MediaSentry was able to start the download of 1000+ files and collect MetaData and successfully continue the download for a subset of these files.
Now, there’s something wrong here to my mind. Yesterday’s testimony by Chris Conelly specifically stated that he’d tried and failed to start downloads of songs from the defendant’s computer. So something’s not right here. Either Media Sentry WAS able to “start the download” in which case Chris Conelly’s testimony is a lie (and thus purgery) or they were not in which case his opinion isn’t worth anything since it’s not accurate. And if it’s not accurate, why should the jury believe any other part of his opinion? Of course, the fact that he was paid $9,000 for his opinion in this case shouldn’t hint that he might be biased in the plaintiff’s favor. Absolutely not. Even though he estimated he worked between 40 and 50 hours at a $200/hr rate. Nothing to do with why his opinion might possibly be inaccurate.
Other highlights of his “expert opinion”:
* There were two registry files which could not be opened, which he indicated was evidence that they were attempted to be deleted.
What a load of cobblers. There can be any reason why a registry file can’t be opened, but one of the most common is that it’s in use by another application, and normally if it’s a registry file that other application is the core operating system of windows itself. Windows will not permit the accessing or deletion of such a “locked” file, but you boot with another operating system capable of reading NTFS drives, such as linux, and you can delete the file without a problem since Linux doesn’t read the activity flags that Windows sets up. Any professional wanting to delete ANY windows-made file would simply use a Linux boot disk or CD, and delete the file. If it was locked (which seems to be the case here, since the files were present but could not be opened) then it was either corrupt or already being used by a part of the operating system.
* The file sharing program LimeWire was on the machine, and he believed it to be operable.
* He found evidence of over 2700 music files in the C:\My Music folder which LimeWire was sharing, but that this folder itself had it some point been deleted.
Again, I have to say “So what?” Even if you could argue that Kazaa was installed, so what? That’s just hinting that the defendant COULD have shared files, it’s no proof that the defendant DID share files. As such, it doesn’t deserve to be given major weight because it’s circumstantial evidence of the ability to commit the offense, not actual evidence of the offense being committed.
* He was able to identify several songs that were once in the C:\My Music folder that were at issue in this case.
Again, so what? I might have those files on my hard disk. Doesn’t mean I’ve ever distributed them. I could have ripped them legitimately from CDs I owned. Again, this “evidence” is circumstancial at best, at worst inadmissible.
* He found several hundred exact matches to files in the C:\My Music folder that were being distributed by sublimeguy14@KaZaA
Here we’re back to his testimony conflicting with Chris Conelly’s testimony. Chris Connelly testified that he saw those files in the defendant’s list of available files, but couldn’t actually download them. On the occasions he was able to download those particular music files, his testimony was that they originated at a different computer than the defendant’s. Thus, the “were being distributed” is a misleading contradiction.
* He also found a My Music folder under Joel’s My Documents folder, which contained a similar folder structure and many of the files that were removed from the C:\My Music folder.
Again, so what? Again, this is circumstantial evidence of the possibility that things were in place for an offense to be committed. This is not evidence that an offense WAS committed, or that the defendant was the one committing the offense.
* He had formed the opinion based on the inconsistent meta data in the files he found during the forensic examination that they were downloaded and distributed on the internet.
Well of course he did. He then submitted his invoice for a cool nine thousand dollars which was duly paid. Naturally that has absolutely NO bearing on why he formed that opinion. Absolutely not. *cough*
Dr. Jacobson was then asked why MediaSentry only downloaded 7 of the files they found in the shared folder. He stated that it would have been infeasible to download them all, because it would have taken a long period of time. He was asked that for the remainder of the files it would be impossible to know if they were the sound files they stated they were or not, because there was no underlying file. Dr. Jacobson agreed that an audio comparison could not be made, but that it was still his opinion that all of the remaining files were present for distribution.
Hang on a moment! Didn’t Chris Conelly admit under oath that the songs he downloaded did not start from the defendant’s computer? I use Blizzard’s background downloader – which is a p2p program – to download my World of Warcraft updates, but they seldom if ever use the same machines. Surely if the plaintiff is alleging that the defendant distributed music files, that means that he distributed the entire music file. If he distributed the entire music file, then he broke the law – but what if only a few tiny chunks ever came from his machine? If you were to join those chunks together you probably wouldn’t even be able to play them back; surely the plaintiffs must, if they wish to claim damages, prove that the entirety of each file came from the defendant? And again, Mr $9000′s opinion has to be called into question because of the money aspect. Would he still be of the same opinion if the defendant had been the one paying him $9000, not the plaintiff?
Professor Nesson asked Dr. Jacobson that if a spoofed file was present in the directory if it would look the same as the other files from the meta data, to which he admitted that a spoofed copy could contain the correct meta data as well.
What’s a spoofed copy? Another tactic used by the music industry. Basically it contains the first few bars of the song it pretends to be, then either garbage, profanity or repeated recordings of voice overs discouraging music piracy. And Dr Jacobson admits that a spoofed file would contain the same meta data (it would have to be if it was to successfully masquerade as authentic) and thus blows the 7 files Media Sentry DID get out of the water, since their evidence is based on meta data, and there is thus no evidence that they were genuine song files even if by some miracle the evidence could be cobbled together that the files were distributed from the defendant’s machine in their entirety – itself looking like an impossible prospect at this point in time.
One final thing:
On recross Dr. Jacobson was asked if KaZaA contained Malware. He stated that it would be more accurate to say that it contained Adware. He was asked if the MediaSentry computers had adware on them. He stated that he has not investigated their computers beyond what MediaSentry has told him, which is that they keep their computers clean.
I hope the defense brings this up again. Because here we have another contradiction, and it’s a pretty major one. If KaZaA contained Adware, then it follows (and this is born out by the warning you get when you run Spybot: Search and Destroy that if you remove software related to programs, i.e. the adware that comes with KaZaA, the programs themselves will stop working) that Media Sentry’s computers must have been infected with Adware, because they would have to have the Adware for KaZaA to continue functioning. This leads us to one of the following possible scenarios:
- Media Sentry’s computers run KaZaA (and it’s associated Adware) and are thus not “clean” but KaZaA works
- Media Sentry’s computers had the Adware removed after KaZaA was installed, which would have disabled KaZaA and required a re-installation (the re-installation would then reinstall the adware, leading to an endless loop of deleting adware and reinstalling KaZaA)
- Media Sentry have illegally modified KaZaA so that it no longer checks for the Adware that it was installed with, but in doing so they revoke their own license to use KaZaA in an unmodified form and thus commit the offense of using unlicensed software every time they run KaZaA
These are the only three possible outcomes. I’d love to know which it is.
There were two other witnesses today, but neither of them had anything near as interesting to say as this one. The trial continues tomorrow.