RIAA Pwned by Expert

Evidence can be a pesky thing. The endless formalities of the trial process. And, oh yes...it better be accurate. In another chapter that is the saga of the effort by the Recording Industry of America ("RIAA") to crackdown on illegal downloads -- one person at a time -- a defense expert has chastised the methodology used by the RIAA to support its infringement claims.

We previously posted about a Connecticut decision holding that the RIAA had to prove that files had actually been downloaded from an individual computer to win its case. A Minnesota federal judge has made a similar ruling, creating a significant roadblock in the first trial to be held among the scores of cases the RIAA has been prosecuting. Capital Records, Inc. et al v. Thomas, No. 06-CV-1497.

District Judge Michael J. Davis had originally concluded that the mere availability of files on a peer-to-peer network, in this case Kazaa, was enough to hold the defendant liable. Proof that a particular song was available on a peer-to-peer network seems relatively straightforward. But what about proof that a particular file was downloaded? How do you prove, in a peer-to-peer environment with thousands of linked computers that a file was accessed from one particular computer. This requires more than just evidence that the file existed.

Yongdae Kim, an assistant professor of computer science at the University of Minnesota points out just how difficult a task the RIAA faces. For instance, Kim noted that MediaSentry, RIAA's expert, ignored innocent reasons to explain the presence of the disputed files on her hard drive. For example, the files could be copies of legally purchased CDs. Further, Kim pointed out that Windows XP and the Internet are replete with security holes. These security holes, which can be accessed anonymously by hackers, make it very hard to identify an individual user. So, evidence that the defendant engaged in actual distribution is unreliable.

The Court has scheduled a retrial in this case for May 11. Courts don't care for unreliable evidence. If MediaSentry can't come up with a better methodology, the retrial may prove to be difficult for the RIAA.

The 13th Juror aka Twitter, Google, or Blackberry

Today we digress slightly to discuss an article that appeared in the New York Times a couple of days ago. The legal system has gone to great lengths to establish an orderly trial process that tightly controls the information presented to juries. Now, litigants are finding that jurors are conducting their own shadow trials -- engaged in independent research through Google or Wikipedia, or discussing deliberations with friends through Twitter. The phenomenon, as reported by the Times, has led to mistrials in significant cases. Ironically, the court system in New York has installed WiFi in various Courts as a service to serving jurors. No good deed...?

We used to lock up jurors in New York. Okay, not lock up exactly. Juries in felony trials -- serious criminal cases -- were sequestered, meaning that the jury stayed in a hotel until the trial ended. Jurors were sequestered to prevent them reading news reports about cases or discussing the case with family and friends. Easy enough, before the Internet that is. If we still sequestered juries, all laptops, Blackberrys and other devices with the ability to connect wirelessly to the Internet would be confiscated.

Maybe we should lock offending jurors up again, only for real this time. Or maybe there should be fines for engaging in independent research. Seem too harsh? Litigants who spend tens of thousands of dollars on trials might not think so.

What should trial lawyers do? What can they do? Monitor Twitter, among other sites, for evidence that jurors are discussing the case? Is there any mechanism to discover whether jurists are using other resources, like Wikipedia or Google?