Thursday, June 11, 2009

Jammie Thomas judge: MediaSentry broke no laws; defense expert limited; fair use defense waived

In a major win for the record label plaintiffs, the judge in the Jammie Thomas case has refused to exclude evidence collected by MediaSentry, ruling that the firm did not break state or federal law by joining the Kazaa network and gathering data on Thomas' alleged copyright infringement. Judge Michael Davis also significantly limited the scope of Thomas' expert's testimony, and barred Thomas from arguing fair use at trial.
Order on Motions in Limine in Capitol v. Thomas
As to MediaSentry, the court first held that the firm is not subject to Minnesota's private detective licensing statute, as it "has no employees in Minnesota and does not conduct any activities in Minnesota.... Merely monitoring incoming internet traffic sent from a computer in another state is insufficient to constitute engaging in the business of private detective within the state of Minnesota." The court next held that MediaSentry did not violate the Pen Register Act because "the IP address recorded by MediaSentry was part of the content of the communication" and the Act "does not bar recordings of the contents of communications that are made with the consent of one of the parties to the communication." And MediaSentry did not violate the Electronic Communications Privacy Act of 1986 because "MediaSentry was clearly a party to the electronic communication with Defendant" and "MediaSentry did not intercept the communications for the purpose of committing a crime or tort." The court also put to rest the allegation that MediaSentry's activities constituted "[t]he tort of intrusion upon seclusion," ruling:
There is no expectation of solitude or seclusion when a person activates a file sharing program and sends a file to the requesting computer. By participating in Kazaa, a user expects millions of other users to view and copy her files, each time receiving the very information that Thomas‐Rasset sent to MediaSentry and MediaSentry recorded.
Finally, the court concluded, "there was no ethical violation committed by Plaintiffs’ attorneys’ involvement with MediaSentry’s investigation."

The court refused to completely exclude Thomas' expert, University of Minnesota computer scientist Dr. Yongdae Kim, but it did place significant limits on his testimony:
  • "given the evidence that there is no wireless router involved in this case, the Court excludes Kim’s opinion that it is possible that someone could have spoofed or hijacked Defendant’s Internet account through an unprotected wireless access point."
  • because Kim explicitly testified that this case does not involve any “black IP space,” or any “temporarily unused” IP space (Kim Dep. 110‐11), he is not permitted to opine at trial that hijacking of black IP space or temporary unused IP is a possible explanation in this case.
  • In § 3.4 of his Report, Kim asserts that there is no evidence that the music files were “consciously placed” in the shared directory on Thomas‐Rasset’s computer or were willfully offered for distribution. Kim testified that he is not an expert in human behavior and that his opinion is based on nothing but “speculation.” (Kim Dep. 127‐28.) Although the Court grants Kim leeway to testify regarding possibilities, speculative testimony is still inadmissible. Because Kim admits that his opinion on this point is speculative, it is excluded.
  • In § 4.4 of Kim’s report, he opines, “The KaZaA‐reported IP address is not evidence that the machine running KaZaA is not behind a NAT device.” However, Kim testified that he has no knowledge to support this opinion.... His opinion regarding Kazaa’s functioning in this instance is excluded as not based on a reliable scientific method.
Kim will, therefore, be permitted to testify only on a relative narrow range of subjects; he may attempt to poke holes in the plaintiffs' case, but he may not offer his own affirmative explanation of what took place:
Kim will not offer an opinion regarding whether Thomas‐Rasset infringed Plaintiffs’ copyrights or whether her computer was used to distribute their copyrighted sound recordings. Instead, Kim will offer possible explanations regarding how someone other than Thomas‐Rasset could have committed the file sharing at issue in this case.... Kim can testify regarding the possible scenarios that can occur on a peer‐to‐peer network that would result in the incorrect user being identified by MediaSentry. Kim cannot opine regarding causation or what he thinks probably occurred in this case.
On fair use, the court squarely held that fair use is an affirmative defense, and that Thomas waived the defense by not asserting it in her answer:
This litigation has gone on for years, yet Plaintiffs had no inkling of this defense until the eve of trial. Because Plaintiffs had no notice of this defense, they have taken no discovery regarding Defendant’s alleged fair use defense. The record in this case, with which this Court is intimately familiar, gave no hint that a fair use defense would be forthcoming. It would be highly prejudicial to Plaintiffs to allow Defendant to assert this new affirmative defense on the eve of retrial, when they have no opportunity to conduct discovery on this issue and long ago missed the opportunity to file a dispositive motion regarding this affirmative defense.
On the label's motion in limine to exclude evidence and argument about other similar lawsuits, the court declined to rule at this time:
As the Court explained during June 10 hearing, it will reserve ruling on this motion because the type of evidence that Defendant will be permitted to offer will depend upon the evidence and arguments offered by Plaintiffs. All parties are warned to abide by the Rules of Evidence and Civil Procedure during trial.
Lastly, the court granted plaintiffs' motion in limine to bar an innocent infringement defense; apparently Thomas did not oppose it.

All in all, the court's order is a huge win for the plaintiffs, and should keep the trial focused where it belongs: on the questions whether Thomas infringed the plaintiffs' copyrights, and, if so, what is the appropriate amount of statutory damages. The prospect of a "spectrial" has dropped significantly.

UPDATE: The court just gutted Thomas' case, leaving her with little more than her "SODDI" defense that resulted in the jury in the first trial finding for plaintiffs and ordering her to pay $222,000 in statutory damages. And how does anti-label litigator Ray Beckerman interpret the order? As good news for Thomas! (See comment at 6:49 pm.) Says Beckerman, based merely on the fact that the order quotes from Daubert in limiting Thomas' expert:
It could mean victory for Jammie.

The judge described the Daubert standards quite carefully.

Neither MediaSentry nor Jacobson will be able to satisfy those standards, which means that their testimony, and MediaSentry's documents, will not be admissible.

Which means the RIAA's case will be dismissed at the close of the plaintiffs' case.
This prediction should be judged in light of Beckerman's insistence just before the first trial that the plaintiffs' expert would not be permitted to testify: "I don't expect the RIAA's 'expert' to get qualified to testify; it would be reversible error to permit him to testify since he flunks all Daubert factors." Of course Dr. Douglas Jacobson did testify, and the jury believed him over Thomas.


  1. Thank you for introducing me to the term SODDI, my favorite acronym since NAMBLA.

  2. You might also point out that Beckerman said that the motion to exclude Kim's testimony was "about as frivolous as a motion can get." Funny how the Court didn't sanction plaintiffs for such a frivolous motion, which, granted in substantial part while informing defendants that Kim's testimony must be limited to "rebuttal" of...Jacobson. Lastly, Beckerman previously admonished defendants for not filing a motion in limine to preclude Jacobson. Such a motion wouldn't have been granted anyway, but good luck making it at trial after not making it in limine.

  3. Why again was this viewed by the defense as a suitable 'test case'? When key defenses and expert disclosure requirements have been waived, then it doesn't matter if your bring in Camara, Cardozo, or Cousin Vinny as counsel - the case is set on sand.

  4. @Anon: Because they don't want this to be a "test case", they want it to be a bully pulpit from which they can rant about copyright.


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