Copyright Law

Dr. Jacobson's testimony this morning

By Ty Rogers and Ray Beckerman

Dr. Jacobson continued to testify regarding the forensic examination of defendants hard drive. He described his basic process, using EnCase software. He testified that the computer had numerous references to the tereastarr username, such as on online websites such as match.com and yahoo e-mail. He also testified that numerous music files were found on the hard drive, most in wma format, but a handful in mp3 format. He found that all of these files had dates after the date of MediaSentry capture. The earliest date I saw in exhibits was 5/2/2005. He also testified that he found no evidence of KaZaA or any other peer-to-peer software on the disk.

He testified that he found that the hard drive was replaced on or about 3/9/2005, after the date of capture, and thus was not the hard drive or installation of Windows in use on the computer on 2/21/2005.

He also testified that he found evidence that another hard drive was attached to the computer, which was a statement he did not make at the last trial. He maintained his opinion that Ms. Thomas' computer was used to distribute music via KaZaA on 2/21/2005.

Cross-examination focused on a small number of issues. First of all, the username. Mr. Sibley argued that his previous testimony showed most users in cases he's worked on such as this one do not choose a username that is somehow linked back to an idendity, and that he believes the ratio is about 60/40.

Then Mr. Sibley asked about whether or not Dr. Jacobson had an opinion on whether all 1700 songs MediaSentry found evidence of came from CDs or KaZaA, or another source. He testified that he could not tell the original source of the files, and admitted that it would be easy for a user to move files around, such as in to a shared folder, regardless of their original source.

He was then asked about speeds in response to a direct question response that it would take about 170 hours of downloading to recieve 1700 music files. He admitted that numerous factors would influence how fast this would be, so his previous estimation based entirely on the MediaSentry transfer was mostly a guess.

He then pressed Mr. Jacobson who eventually admitted that despite all of his credentials, the best he could do was tie the infringement to a computer, not a person sitting behind the computer.

It then got really interesting. Dr. Jacobson was asked about his evidence that another hard drive was connected to the defendant's computer. He testified that he found evidence of this in a "data log". And admitted this data log was not provided to either party as a part of any of his reports. He then asked about testimony at a prior proceeding where he guessed that the wma files he found on the disk came from another hard drive due to the speed at which they were transferred. There was a brief dicussion of a demonstration about CD ripping speed performed at a "prior proceeding". He then admitted that the music could have come from ripping, since he had done no research on the various software and speeds that could be involved in ripping from Windows Media Player versions.

There was a brief redirect and then Mr. Sibley called for a sidebar about a voir dire issue. After the sidebar the jury was dismissed for lunch.

Dr. Jacobson was recalled to the stand out of the presense of the jury to discuss the evidence he found of another hard drive in the "data log". He testified that he first found out about this data log, and discussed it with plaintiffs counsel late last week. He admitted that he had suspected that another hard drive was attached at the prior proceeding, but didn't investigate it. In preparing to testify today he reviewed everything from the case and found this evidence.

Defendant moved for exclusion of any testimony regarding another hard drive attached to the computer.

Plaintiffs said they had no basis for exclusion since this was just an expansion of evidence found during the report.

Judge Davis asked, "Is that what you are going to stand on?" to which plaintiffs replied "Yes".

Judge Davis then stated he was considering striking all of Dr. Jacobson's testimony due to their conduct surrounding this evidence.

Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

Full post as published by Recording Industry vs The People on June 16, 2009 (boomark / email).