Court Rejects RIAA's Proposed Protective Order 197
NewYorkCountryLawyer writes "You may recall that a few weeks ago the Court rendered a detailed decision providing for safeguards in connection with the RIAA's proposed inspection of the defendant's hard drive in SONY BMG Music Entertainment v. Tenenbaum. The decision instructed the RIAA to submit a proposed protective order consistent with the Court's decision. The RIAA submitted a proposed protective order yesterday, which attracted some thoughtful commentary by readers of my blog, but today the Court rejected the RIAA's suggested order, explicitly rejecting many of the 'enhancements' included by the RIAA, including production of 'videos' and 'playlists' which might be found on the hard drive. Instead the Court entered an order the Court itself had drafted. The Court explained that 'the purpose of compelling inspection is to identify information reasonably calculated to provide evidence of any file-sharing of Plaintiffs' copyrighted music sound files conducted on the Defendant's computer. Once this data is identified by the computer forensic expert... any disclosure shall flow through the Defendant subject to his assertion of privilege and the Court's authority to compel production, just as disclosure would occur in any other pre-trial discovery setting... (1) As should have been clear from the Court's May 6, 2009 Order, although the Plaintiffs may select experts of their choosing, these individuals are not to be employees of the Plaintiffs or their counsel, but must be third-parties held to the strictest standards of confidentiality; (2) the inspection is limited to music sound files, metadata associated with music sound files, and information related to the file-sharing of music sound files — it shall not include music "playlists" or any other type of media file (e.g., video); (3) the Examining Expert shall be required to disclose both the methods employed to inspect the hard drive and any instruction or guidance received from the Plaintiffs.'"
Re:OK, now what... (Score:5, Informative)
You can also find all the
Remember, the RIAA may be saying that downloading is illegal, but they're prosecuting based on unauthorized distribution laws (uploading).
Re:Thoughts.... (Score:5, Informative)
Re:Thoughts.... (Score:1, Informative)
Re:At what point.... (Score:5, Informative)
It's covered as a "derivative work" [wikipedia.org], transcoding is clearly a derivative in this sense, and you would be screwed :-)
17 U.S.C. Â 106) provides:
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies...; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies...of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending....
It is hard to see how transcoding or quality degradation would satisfy any of the "transformation" or "fair use" exceptions.
Re:An educated judiciary (Score:5, Informative)
It seems as though that the judges in these cases are becoming more educated as to the technical aspects of this case and P2P filesharing in general. This can only mean that the RIAA's tactics will be scruntized more closely by the court than ever before. This can only be a good thing for defendants in these cases. If the defense prevails, this is the start to the end of this mess for once-and-for-all. Thanks to NewYorkCountryLawyer for keeping us on top of this.
This judge seems to be much more on top of the legal issues than she was in the early years. For 4 years she presided over uncontested cases. Then when some lawyering finally appeared for a couple of Boston University students named as "John Doe" defendants, and briefed some of the flaws in the RIAA's cases, the judge seemed to become more vigilant. It all proves the point that we have an adversarial system; the judges usually rely on zealous, competent lawyering from both sides. When one side can't afford to get good legal representation, the judge doesn't get to see the whole picture.
There have been a couple of judges who refused to rubber stamp the RIAA's chicanery --Judge Arterton in CT, Judge Brewster in CA, Judge Kelley in VA, Judge Otero in CA, and several judges in Austin TX come to mind -- but usually it doesn't work that way.
Re:OK, now what... (Score:3, Informative)
There is nothing in the copyright laws to date making downloading illegal. It all pertains to unauthorized copying and distribution outside of fair use (fair dealings in other countries).
This is something that has extremely irritated me about the **ia's for a long time. Now when you download something, you might be causing something to be copied but technically speaking, it's the distributor's system making the copy on demand.
Re:OK, now what... (Score:5, Informative)
Here, here. As someone else who works with digital forensics, I agree--it's a "touchy mistress" that has been abused all to hell in the RIAA cases. As a casual observer to the whole *IAA thing, it looks as if they were pushing sloppy, shoddy work on the court as an airtight case...and it's catching up with them. Since the standard practices of digital forensics are fairly common, accepted, and (to techies) obvious, you would think that they would take the time to do the job right, push through those cases that cemented their reputation as solid litigators; their reputations would have preceded them, and they could have had a few big-time early successes to browbeat future defendants. Instead, my horseback opinion is that they decided to go for quantity over quality. Judges and defendants rolled over under a wave of "techie-stuff", because it sounded good. But Media Sentry (or whatever they are calling themselves now, or whomever the RIAA is using), kept getting caught doing short-cut work, and the plaintiffs kept running with it (probably knowing it was crap. Now, everyone is getting comfortable with terms like "forensic copying," "hashes", "ip addresses", and "p2p software." And those previous cases are looking weaker and weaker. Sorry for the rant; as someone who works in the evidence field (and takes pride in doing it right--not fast or biased), I applaud NewYorkCountryLawyer's work on this, and I'm glad a lot of bad courtroom maneuvering is getting exposed.
Thing is, the RIAA's "junk science" never gets challenged. Here are the statistics for ~40,000 cases:
1. Number of times the RIAA's "investigator" and sole witness has been deposed: 0
2. Number of times the RIAA's expert witness has been deposed: 1.
Re:OK, now what... (Score:4, Informative)
There is now a circuit split [wikipedia.org] on the issue. See M.A.I. Systems Corp. v Peak Electronics, [wikipedia.org] 991 F.2d 511 (9th Cir. 1993), where the appeals court held that a copy of software loaded into RAM does qualify as a copy under copyright law. While not related to music specifically, a good researcher might turn this case up and make your life miserable. The changes to the Copyright Act that overturned this decision provided an exemption for repair shops, but did not invalidate this interpretation of "copy."
As a side note, Peak Electronics was unable to appeal this to the Supreme Court because they ran out of money. I was on the staff at an electronics servicer's trade association [nesda.com] at the time.
Re:Thoughts.... (Score:4, Informative)
If he can't read it then he can't read it. Of course he might report the procedure incomplete because of file encryption and the judge might look at it with skepticism.
However, I have seen several replies about obfuscating the files in some way and your suggesting encryption. The problem is that having the files in the computer in and of itself isn't against the law or against what the lawsuit is about. what is at question is whether or not the files were being offered to anyone else and whether or not anyone else got them (distribution and copying outside of fair use). Your not really going to be able to share files that are encrypted unless you decrypt them or the partition they are on first. No one looking for Britney Spears latest hits will be looking for .doc or .ffm or .whatever files, they will be looking for a known file type by extention so they can use it.
Now here is where the problem with these overly complex schemes come up. If your using true crypt to hide a sharing folder/partition, there will be markers in the file sharing software pointing to the directory and flags will be raised when everything is encrypted and the forensics software can't access it. If you download to a specific folder and then move it to another or change the file extension, there is/could be a good chance that a deleted file will remain in either meta data on the file system or it's actual content would remain as the file is rewritten from memory. I would hope that people know by now that a deleted file isn't actually deleted and secure erasing becomes more difficult with large drives and Logical Block addressing where the firmware on the drive controller interprets the file positions and acts as a middleman to the operating system (some of which has been addressed with native 48bit addressing in the IDE controllers). Most modern multiuser file system will also load a file into memory from the dive and instead of appending the existing information,>/a> it actually rewrite the file to another location and mark the old file as deleted.
But to make obfuscating the files more complex, when you down load something to your encrypted location, the file doesn't directly go there. it goes to a temporary location to be reassembled first then copied over to the correct location. This could leave remnants of the files on the disk directly and/or possibly in the swap file that could be seen later with the correct tools. There for a while, people were able to pull credit card information entered into web browsers for online shopping from swap files on computers even after a couple of reboots. Also, the code for the true crypt could be stored in the swap file too and with the right tools, access and used to decode your super secrete partitions.
Here is a brief article [com.com] describing some of the places you should look to cover your ass with if your that concerned. Keep in mind that many applications keep their own cache which can expose information on it's own outside of the ones mentioned. Most P2P software will have a cache of torrents being served, it may also keep a history of them that can come back to bite you. Normally people won't have the means to be this thorough but the judge required a forensic examination buy the experts of the RIAA's choice which pretty much assures you that they will go that far considering the other lengths they have went to.
Re:Wow, the RIAA is bad at this (Score:4, Informative)
Your likely right with the videos, and as for play-lists, I am guessing it makes finding deleted data a lot easier if you know the track name that will be neatly in the ID tag within the start of the file. Means the person can be "done" not only for what they have on their computer, but what they had on their computer as well. I am guessing it would be a pretty big thing to someone if, questionable, content were found on their drive, and they were told that it had been found, and would be entered into public court documents, might make a person real eager to settle a case. My opinion of them just reached a whole new order of low, knowing that they have done such a thing, and of the legal system for letting that happen ;(
Barny, here [blogspot.com]'s my blog post about the Tennessee case in which they purposely sought to, and did, humiliate a member of the armed services by making a public record of some off color videos he had on his computer. After they'd made the point, and made a public record of the whole thing, they thereafter moved to strike their own irrelevant disclosure. But not until everybody who knew the army sergeant in question knew his embarrassing secret.
I don't care how low your opinion of them gets, you should always make room for it to get lower.
Re:An educated judiciary (Score:3, Informative)
You know, I can't help wondering if if Judge Gertner is following NYCL's blog and taking notice of some of the more insightful comments there?
Well there are those who have said that the best thing about my blog are the comments. And I will say that the comments on the RIAA's proposed protective order were very helpful to me, and for the most part very well thought out.