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.'"
An educated judiciary (Score:5, Insightful)
Wow, the RIAA is bad at this (Score:5, Insightful)
Re:Whoa! (Score:5, Insightful)
The plaintiff has always had the burden of proof. It must show by a preponderance of evidence. This is a solid decision and it shows the RIAA that they should have to work for their supp.
Re:Thoughts.... (Score:3, Insightful)
Re:Whoa! (Score:5, Insightful)
Yes, that's how court cases go, there's a bunch of briefs, responses, and arguments that ammount to "Yeah huh!" "Nuh uh!" "But he started it!", and so on. They get more wordy than that, but that's all it boils down to.
Re:Thoughts.... (Score:3, Insightful)
However, I don't think that "they can only examine music files" means what your post suggests. A file is just a collection of bits. To know what it is, or what it isn't, you have to examine at least part of it, there is no alternative. You can look at the file suffix, you can look at the magic numbers, you can look for distinctive attributes of a given file format, you can draw other inferences(Hmm, I see a "Black Sabbath" directory, with a "Paranoid" directory inside it and, inside that, 8 ".doc" files that have well formed ID3v2 tags... What a coincidence...).
Any file that doesn't appear to be music related would be inadmissible as evidence, and the forensics guy would be, arguably, guilty of misconduct if he poked any further than necessary to determine that a file isn't music; but it wouldn't stop him from checking each one. I'd be analogous to a court order to look for ransom notes you had written: Letters to your grandmother would be out of bounds; but that wouldn't mean that you could make anything inadmissible just by writing her address on the envelope.
Re:That sounds reasonable... (Score:3, Insightful)
Just out of curiosity,Ray, if one were so inclined, how could an individual (or group) file an amicus brief with a court? Is there a boilerplate example to reference?
IANAL, but it goes something like this: first, you hire a lawyer...
Re:An educated judiciary (Score:5, Insightful)
True. However, one of the primary responsibilities of any member of the bench is to see that the rights of the accused are protected, above all else. "Better to see ten guilty men go free than to see one innocent man convicted." Those that fail to do so are not upholding their responsibilities and will be either reversed on appeal, or should removed from the bench. It is entirely within the discretion of any judge to bring to the attention of the accused that they might not be properly represented and that they should seek better counsel; even if their lawyer is one appointed by the court.
Re:Thoughts.... (Score:5, Insightful)
But in this case, the forensics expert isn't allowed to look at anything but music files.
So looking at this four byte header for every file on the computer is obviously looking at more than music files.
This isn't the FBI we're talking about. Sure, if they're looking for terrists, they'll look at everything on your drive, and damn whatever the court says.
But this is the RIAA's chosen forensic expert, who's been given strict orders to not look at anything other than music files.
If they can't tell if it's a music file without examining the file, then they're screwed.
Re:Thoughts.... (Score:3, Insightful)
When the court and plaintiff clash... (Score:3, Insightful)
It never bodes well. I remember when Microsoft was giving the EU court hell behaving as if it were a US court where they can appeal everything ad infinitum and eventually end up with whatever they want AND an official apology to boot.
But here it's the plaintiff and the court butting heads. I'm not a lawyer... definitely not. But I have got to say, that when you give the people who are making a decision either for or against you a difficult time, it can't be terribly wise... it just can't be. Even the lay-people know the courts systems aren't completely fair. What manner of arrogant do you have to be to behave in this way?
Re:Wow, the RIAA is bad at this (Score:5, Insightful)
Re:Thoughts.... (Score:5, Insightful)
Not really. The forensic expert wouldn't technically be looking at anything the software doesn't pin as a music file.
The software can anonymously (can't think of the word I want but this is close enough) scan through each file and only log or flag the ones labeled as music then after a more thorough check, report only what is music files as to what the case is about. The forensic expert will by the very nature of the game need to look at files other then what is ordered in order to make his report. What he can't do is list any files not in the order nor disclose any information about them.
Imagine if I told you to pick me out of a crowd. You would have to look at other people to find me. Not even if you used facial recognition software, you would still have to look at other people to find me. It's the same in the forensic world, however, you wouldn't be allowed to identify or report the identity of anyone else in the crowd if the judge made a similar order to your searching just for me. The order won't defeat the technical aspects of the search, just limit the disclosure and discovery of anything not outlined in the order.
Re:Thoughts.... (Score:4, Insightful)
Re:OK, now what... (Score:5, Insightful)
I personally think that copies which exist only in RAM should not be considered copies at all
And that's the truth. I mean, if you want to carry this to the point of logical absurdity (something the RIAA does on a regular basis) the wires leading from a phonograph's cartridge through the amplifier to the speakers are transiently storing a portion of the copyrighted signal.
Re:OK, now what... (Score:3, Insightful)
Re:Thoughts.... (Score:3, Insightful)
Their program scans for anything with an mp3 extension. It finds this. Hey look, it's not music. Look how that would turn out.
Re:An educated judiciary (Score:5, Insightful)
To be fair, you can't judge all lawyers by a metric as simple as win/lose. Some lawyers take on cases that they are almost certainly going to lose, maybe many such cases for many years, in an attempt to change the law itself or for reasons such as fairness. Such lawyers may be quite excellent, yet have a quite pitiful win/lose ratio. For example, the civil rights movement certainly involved many worthy cases destined to lose against unjust laws. The lawyers who fought those battles weren't bad lawyers simply because they lost -- they didn't have a snowball's chance of winning. It's a rare person who'll put their heart into a fight knowing they'll be savaged in the end merely because it is the right thing to do.
Even in very well settled and not terribly controversial areas of the law, there are certain types of cases which are simply more likely to be lost. For example, criminal defense. Many excellent lawyers lose many cases in such a practice. By the same token, if a prosecutor loses many cases, you have to wonder about his/her skill.
Re:OK, now what... (Score:4, Insightful)
The fact that we typically view pdfs and mp3s as data vs programs is really, at the technical level, pretty arbitrary. Its not hard to imagine that we could build a machine that ran either as "programs".
Don't forget that some files almost always considered as data -- PostScript files -- literally are programs. They cannot be viewed or printed without being executed.
There are, of course, many other examples.
Re:OK, now what... (Score:3, Insightful)
Would the 1.2s of audio stored in RAM be recognisable?
This question also would cause issues for any company which used anti-skip technology in a portable CD player (play from cache), up to 10 seconds of audio in a lot of cases. That would be MORE than recognisable.
Playlists aren't music (Score:2, Insightful)
Someone plugs in their iPod to your system, you play their music off it, the iPod goes away with the music still on.
No copyright infringement.
Entry in a playlist.