See the write-up here. After 6 months of litigation, RIAA dropped the case because they could not meet the evidenciary standard for scientific evidence. Basically they claimed she paid for the internet and word the computer where they found the shared files folder. The defendant claimed that many others had access to her computer, others had access to her unsecured wireless internet connection, and that it could have been any of those people engaging in the illegal conduct. Instead of setting a bad precedent, the RIAA agreed to dismiss. Stipulation and Order of Dismissal.
So, that brings up the issue of what is sufficient evidence in these cases. Most of the evidence will be an IP address and some screenshots of a P2P application. The issues will be ones of timing: can you prove the time stamp of the screenshots to match with who was assigned the IP address by the ISP at the time. Can you prove the screenshots were unaltered, or that someone was not spoofing the IP address. Can you prove that someone else was not also using the IP address for access at the time? (I live in a dorm with 220 college freshmen (don’t ask), and keep an unsecured wireless hub in my office. Practically anyone in my building, or one of the 2 dorms across the street could be using my wiress at any moment…. and they probably do.) Other questions are, did they download the music from the defendant, and if not, can they prove that the files shared actually contained the music that is alleged? One common tactic a few years back was for the music companies themselves to seed the P2P networks with bad files with valid metatags.
This brings up whether any of the above evidence meets the standard for evidence in Federal tort cases set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“Daubert I”), on remand, 43 F.3d 1311 (9th Cir.) (“Daubert II“), cert. denied, 116 S. Ct. 189 (1995). Daubert concerned the admissibility of expert evidence that was put forth to establish a link between the use of the drug Benedictin by pregnant mothers and a certain type of birth defect. The plaintiffs experts stated that the drug could cause the type of limb reductoin birth defect alleged, and the defendant challenged the admissability of the experts statements based upon the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Frye standard was the test then used to determine the admissibility of scientific evidence, particularly for novel scientific evidence. Under Frye, the court looked to see whether the novel evidence was “generally accepted in the relevant scientific community.” If so, it was admitted, if not, then it was inadmissible.
In Daubert, the Supreme Court stated that the Federal Rules of Evidence had displaced Frye, and that the goal of scientific evidence is to assist the trier of fact and, thus, must be evidentiarily reliable. “Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.” Daubert, 509 U.S. at 595. Under the Daubert test, the inquiry focuses on the principles and methodology of the techniques used by an expert without regard to the conclusions reached.
In adopting the Duabert test, the Court partially readopted Frye, or to be more exact, the Court incorporated Frye’s historical application into a number of non-inclusive factors it directed the courts to use when determining whether to admit scientific evidence. The factors include:
- Whether the scientific knowledge can be and has been tested;
- Whether the theory or technique involved has been subject to peer review and publication;
- The known or potential rate of error for the theory or technique; and
- Frye’s general acceptance inquiry.
Over the intervening years,a number of other factors have been added by the courts, including:
- The relationship of the technique to reliable, established methods;
- The expert’s qualifications;
- The non-litigation uses of the method; and
- Other relevant factors.
See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 n.8 (3d Cir. 1994), cert. denied, 513 U.S. 1190 (1995). Also, over the years, Daubert has been come to be applied not only to novel scientific evidence, but all expert evidence. See. Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1143 n.8 (9th Cir. 1997). Pursuant to Federal Rule of Evidence 104(a), any party can move for an hearing on the admissibility of evidence or the qualifications of a person to be a witness outside the presense of the jury. It seems then, that even before filing a motion to dismiss, a defendant would be able to hold Daubert hearings on all of these evidentiary issues. Especially on the control of the computer issue in these cases, where a minor child or children may be in the house and have other children over, a Daubert hearing might blunt the plaintiff’s case enough to get them to agree to dismiss.
If anyone has challenged the evidenciary value of an IP address or contents of a file in an RIAA lawsuit, please point it out to me as I would be very interested.
Filed under: 2006 Copyright Cases, Copyright, P2P, RIAA | Leave a Comment »