Judge Gertner will instruct the jury in Sony BMG vs Tenenbaum to return a verdict of liability in the case.
I have to say, from what I’ve seen, the plaintiff’s haven’t proved anything except that the defendant may have had the ability to commit the offense.
I’ve been doing some tests over an intranet of KaZaA under Windows XP Professional SP3. And what I’ve found is very interesting, and, I believe, quite relevant. It is possible, if one is careful about how one uses the network sharing options to make a folder visible to KaZaA but not actually readable. Let me detail my experiment here.
Two laptops and a desktop, both run Windows XP SP3 on virgin installations. On two machines the same 30 tracks are placed on the hard drive. On one of the two machines file and printer sharing is set up so that files are NOT shared with the network, and this attribute is given to the KaZaA shared folder. The third machine has KaZaA loaded but no music files.
All machines then have a “packet sniffer” and bandwidth monitoring program installed.
The machine without music on it correctly reported that two peers it could see had the files I asked to search. However, no matter what, only the one without the file and printer sharing restriction ever actually served a file. If you disconnected that machine during the transfer, the transfer stalled, even though it still (correctly) said that 1 peer was connected with the files that were to be transferred.
How does this relate to the Tenenbaum case?
Well, firstly, the plaintiffs allege that the defendant’s computer SERVED files. They haven’t actually proved this, and in fact Media Sentry admitted that although they could see the files on the defendant’s computer, they couldn’t actually download from the defendant. So this whole case is about did the defendant’s machine permit the DISTRIBUTION of music. My argument would be to say no, it didn’t. It could perhaps receive, but it never sent anything. The best prosecution the plaintiffs could hope to bring would be for receiving or handling stolen goods (in the form of music files).
So, to my mind this entire case is a miscarriage of justice because the judge will order liability to be found, and not allow the jury to consider whether there is liability.
It just remains to see whether or not the plaintiffs will also get the overinflated damages they seek. My guess is, they will.