• June 15, 2009

A new trial started today before United States Court Judge Richard Kyle, D. Minn., in a file-sharing case that has gotten nationwide attention. The defendant has new lawyers who’ve made the trip from Texas to go up against the recording companies (along with Minnesota local counsel).

The Court ruled on a handful of pretrial motions last week, discussed herein and linked below.

Counsel for defendant Jammie Thomas-Rasset came out swinging with some pretrial motions to challenge the means by which the record companies gathered evidence against Thomas-Rasset. The Court rejected all of the defendant’s claims which challenged the recording companies’ methods of collecting the evidence that they will use against her at trial. Defense counsel suggested, for example, that the companies violated Minnesota law regulating private detectives. Judge Kyle rejected this assertion, finding that the company, MediaSentry, did not do business in Minnesota. Defense counsel also argued that the record companies (through their agent, MediaSentry) violated federal criminal law against installing or using a “pen register or a trap and trace device” without a court order (that is, essentially high-tech “bugging”). Again, Judge Kyle rejected defendant’s position. He held that the data collected was not of the type regulated by the federal law and the data, in any event, was collected with consent of one of the partis (the file-sharing service from whom MediaSentry got the information).

The record companies, on the other hand, took a run at the defendant’s computer science expert witness, Dr. Yongdae Kim, with mixed success. They successfully excluded several aspects of Dr. Kim’s proposed testimony based on Dr. Kim’s admission that some was based on speculation, for example. On the other hand, the record companies were unsuccessful in excluding Dr. Kim entirely and, in particular, the key testimony questioning how the record companies can prove that someone other than the defendant did not commit the file-sharing at issue in this case.

Finally, the recording companies sought and obtained an order excluding any defense of “fair use” based on the fact that, over years of litigating this case, the defense had never been raised. (Why had it not been? This seems puzzling.)

Capitol Records File-Sharing MIL Decision

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