Lawyers can be interesting creatures, arguing politely, adhering to the rules, always trying to make their point and obscure their opponent’s. In theory, justice should always be served. What’s right should be exposed, the guilty punished, and the innocent set free. Our system states that defendants are innocent until proven guilty; the burden of proof lies with the prosecution. Unfortunately, when people are introduced to the theory, it breaks down, and truth is often what ends up obscured, replaced by irrationality, arrogance, and ignorance. Razzle-dazzle, indeed.
I recently came across a link to an online transcript of a deposition. The witness was one Dr. Douglas W. Jacobson, a professor at Iowa State University, for the case of UMG Recordings, Inc,. et al, vs. Marie Lindor. Dr. Jacobson has done “forensic” work for the RIAA since 2005.
The attorney for the plaintiff (UMG) was Richard L. Gabriel, Esq., with Ray Beckerman, Esq. present for the defense (and asking most of the questions). The full transcript can be found here and here (mirror). More info, including the exhibits can be found here, along with some excellent observations and comments.
Read on for a few notable excerpts (note: very dry content ahead, especially if you read the full transcript, but it does get interesting toward the end). It is obvious that the witness is in no hurry to say anything that may jeopardize future jobs for the RIAA.
Q. Have you formed an opinion as to whether Marie Lindor personally uploaded any copyrighted files to anyone?A. The computer whose IP address has been identified as being registered to Ms. Lindor has been shown to have made songs available, copyrighted material available to the internet community through peer-to-peer software.
MR. BECKERMAN: I move to strike the answer as nonresponsive. Would you read back the question.
(Record read.)
MR. GABRIEL: Is there a question pending?
MR. BECKERMAN: Yes. I’m waiting for an answer to the question. It calls for a “yes” or “no” answer.
MR. GABRIEL: I object. It does not. He answered the question.
MR. BECKERMAN: Are you directing him not to answer the question?
MR. GABRIEL: No, no.
THE WITNESS: Would you repeat the question.
(Record read.)
MR. GABRIEL: My objection was he just answered. You can answer it again.
A. Again, the computer registered to Marie Lindor had made available songs through peer-to-peer software, therefore making them available.
MR. BECKERMAN: I am going to say this once and I am not going to repeat it. We are here, we have a limited time. I am on page 1 of about 40 pages of notes. If this kind of gamesmanship is going to be continued, we will never get through even a fraction of this deposition and we will just have to continue it. But I have no intention of accepting that type of answer.
If that’s the way you are going to play this, then we will be here all day. It calls for a “yes” or “no” answer and there is no reason to be playing games in answering a question that was not asked. He will be asked questions that may relate to what his answer was, but he has not answered the question that was asked of him and it calls for a “yes” or “no” and I expect an answer to it.MR. GABRIEL: It is a nice speech, Ray. The witness answered the question. I object to the characterization of gamesmanship. Because you don’t like the answer doesn’t mean it is gamesmanship. The witness has answered, he has his opinions. And if you want to argue with me or the witness, we will be here all day or we will leave.
MR. BECKERMAN: I am going to ask the question one more time and if I do not get an answer to it, we will eventually seek a ruling on that and we are going to seek a ruling on all questions that we do not receive answers to, all questions to which we do not receive answers to, and then we will have a continued deposition.
MR. GABRIEL: You reserve whatever you want, Ray, and seek whatever rulings you want. The witness answered the question and I submit this is browbeating the witness into trying to get the witness by arguing with me. This is not serving any purpose.
Q. Have you formed an opinion as to whether Marie Lindor personally uploaded any copyrighted files, “yes” or “no”?
MR. GABRIEL: Objection. Form. Asked and answered twice.
Q. Dr. Jacobson, would you please answer the question.
A. I have twice already answered the question.
Q. Are you refusing to answer the question?
MR. GABRIEL: Objection. Argumentative. He answered the question.
MR. BECKERMAN: We will seek a ruling on that.
***
Q. Based upon your examination of the hard drive which you examined in this case, what evidence did you find that supported or would support a conclusion that Marie Lindor had personally uploaded any files?
A. The hard drive that I examined showed no evidence of any peer-to-peer software or MP3 music files.
Q. So is it correct to say that there was nothing on the hard drive that tended to prove that she had uploaded or downloaded anything?
A. There was nothing on the hard drive that indicated there was any peer-to-peer software.
***
Q. Now, going to the first computer, how do you know that it was defendant’s computer?
A. We don’t have the Verizon information in front of me. By using the subpoenaed records from Verizon they show –
Q. They were asked — I’m sorry. I cut you off. They were asked to identify the owner of an account that had used an IP address; is that correct?
A. Yes.
Q. How would that tell you who owned the computer?
A. It tells me the individual who has the account that was associated with that IP address; therefore, that computer at the time.
Q. Let’s say — not me, that would be too improbable. Let’s say you had a visitor at your home and that visitor plugged into your internet connection with his laptop. Would that make his computer your computer?
A. Without knowing the configuration of your home network, I couldn’t.
Q. Let’s say you had a wired internet connection at your home, you had a cable modem and someone was visiting who had a laptop, a friend of yours or relative, and that person asked if they could plug in their laptop and check their e-mail. Okay? Now, the IP address would show up as your address, would it not? The dynamic IP address?
A. It depends.
Q. If I sent a query like the record industry sent to Verizon, I would get you, right? If you are the person who pays for the internet access at your home.
A. If the ISP allows multiple devices directly connected to their internet service.
Q. And it wouldn’t have been your computer, it would have been your friend’s or relative’s computer. Correct?
MR. GABRIEL: Object to the form. Lack of foundation.
A. The scenario you laid out. If the ISP allowed multiple IP addresses, then it would have associated an IP address with that particular device.
Q. So when you say it was defendant’s computer, you don’t actually have any knowledge as to whether it was defendant’s computer. All you know is that the defendant’s name is associated with the internet access account; is that correct?
MR. GABRIEL: Objection to form.
A. I know that the — yeah, the computer associated with that user account, an IP address was used.
Q. But you don’t know whose computer it actually was, do you?
A. No.
Q. But your report said it was defendant’s computer, so I think you will agree that that’s an imprecision in your report.
MR. GABRIEL: Objection to form. Lack of foundation. Misstates the report.
A. The report states that I have identified through the internet service provider the account holder of the IP address.
Q. The report says that you will demonstrate that it was defendant’s computer that was used. How can you demonstrate that the computer belonged to the defendant? You don’t know who it belonged to.
I wonder if anyone else arrives at the same conclusion from this exchange. To me, it sounds like it is exposing a major weakness in the RIAA’s litigation machine. The internet is not static. It is unreliable, it is dynamic. There is a reason it is depicted as a cloud: you don’t know what happens to it when it goes in. You hope it comes out the other side intact, and usually it does, but you don’t know what happens to it while it’s inside.
The RIAA’s primary mode of attack is to watch a file swapping service for illegally shared files, take a screenshot, find out who owns the IP address on their screen, subpoena the owner (typically an ISP) to get the info for the account that supposedly was using that IP at that time, and send that person a letter offering them a “settlement” of $3000-5000 or a lawsuit. If the user opts to settle, the cash is rolled back into the litigation machine and they move on to the next person. If the user opts for the lawsuit, the RIAA hires an “expert” like this to take a few snapshots and give a report, and that has been sufficient for some cases.
The reason this deposition may be troubling to the RIAA is that their method is imprecise. Anything on the internet carries that imprecision, and they know it. They have succeeded many times at scaring people into coughing up money to avoid a lawsuit. If their imprecision is pointed out, and they lose this case because of it, that means higher costs for them, more research for every case, and a potentially dangerous precedent for others to base their defenses on.
The RIAA lawsuit gravy train may be grinding to a halt. Maybe they should take that time, money, and effort, and put it toward something more productive, like lowering costs or finding new and better talent. They’d probably end up making a lot more money (and consumer trust) if they started thinking about what consumers want, rather than how they can force more money out of them.
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