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.'"
OK, now what... (Score:5, Interesting)
Thoughts.... (Score:5, Interesting)
If they're only allowed to examine music files, then what if:
You came up with your own file extension (eg. .ffm - file for music) and renamed all your mp3's to .ffm.
Then, configure Windows to open .ffm files with WMP, Mediamonkey, or whatever.
A forensics expert isn't going to have the option of booting the Windows install on the HD, and since .ffm isn't a standard music file, and they can only examine music files, you've just completely hidden all your music from investigation.
Not secure, by any means, but I can't see how they'd get any evidence without breaking the court order.
And then, you can prove they broke the court order, because everything they claim was an mp3 file was examined thinking it wasn't an mp3 file.
Interesting, no?
At what point.... (Score:2, Interesting)
Re:Thoughts.... (Score:2, Interesting)
Re:Wow, the RIAA is bad at this (Score:5, Interesting)
Any lawyer that can't come up with a production order that sticks to court ordered criteria should be sanctioned on the spot.
I agree with you. I would come down very hard on attorneys who try to game the system as the RIAA's attorneys do, were I a judge.
Re:That sounds reasonable... (Score:5, Interesting)
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?
There's no such thing as boilerplate, the way I look at it. Legal documents have consequences, and need to be drafted with reference to the situation at hand. I have actually submitted an amicus brief, and a revised amicus brief, in this very case, on the subject of the due process evaluation of the RIAA's statutory damages theory. Here [blogspot.com] and here [blogspot.com].
Wow! "Metadata"! (Score:5, Interesting)
A judge used the term "metadata" correctly. That is a good technical concept to grasp. We geeks and our friends like NYCL (who may also be a geek - not trying to exclude) have been bandying it about for years, but to 99% of the population it is a pretty foreign term.
Each example like this implies that the judicial is growing more familiar with technical concepts. That makes me happy. :)
Re:An educated judiciary (Score:5, Interesting)
Ya.. except that these are civil cases and so there is no court appointed lawyers.. As for judges telling you that you've got shit representation, that would require some kind of objective measure of copyright lawyer quality and seeing as no-one understands copyright law, not even the judges, that aint gunna happen.
Re:Thoughts.... (Score:3, Interesting)
Would it really? I mean, even a simple search for *.mp3 would technically look at every single file, it just responds with the ones that have that extension. So greping through the first 4 bytes over every file isn't really that different. Yes, you have to open the file, rather than just looking at the inode (or equivalent) but I doubt a judge would see it differently if an "expert" said this was the only way (though I suppose the defendant's expert witness could argue differently. I doubt the judge would really understand the difference as most people haven't the foggest as to what the diff is.
Re:Thoughts.... (Score:3, Interesting)
So, you're going to give your music files obfuscated names and locations? You'd better not import them into WMP or iTunes or any other media player with a database, otherwise the investigators will just look there to find out where the files are. Better clear your "recently played" lists from your media player, too, and take any shortcuts off your desktop.
...I mean, WTF? How much value do you put on your time and frustration? Just buy the bloody stuff already!
Re:Wow, the RIAA is bad at this (Score:3, Interesting)
Re:OK, now what... (Score:5, Interesting)
When you load it into RAM, you have made a copy for purposes of copyright law.
That is simply not true. See, e.g. the Cartoon Networks [blogspot.com] which held that copies in RAM and buffered for 1.2 seconds were not in RAM for a long enough period to be considered "copies" under the Copyright Act. I personally think that copies which exist only in RAM should not be considered copies at all, but we would need the Supreme Court to reach that question to know for sure.
Re:Wow, the RIAA is bad at this (Score:4, Interesting)
What do you think they were up to in trying to get access to videos? I can imagine why they might want to see playlists, but videos can't possibly bear on the RIAA's case since they don't represent video owners. Are they in cahoots with the MPAA? Fishing for something embarassing ("The defendant is obviously a scumbag: we found 'Debbie Does Dallas' on her hard drive.")?
Re:OK, now what... (Score:5, Interesting)
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.
Re:OK, now what... (Score:3, Interesting)
When you load it into RAM, you have made a copy for purposes of copyright law. When you write it to disk, you have made another copy.
Check section 117 of the copyright act. It explicitly sanctions copies made to and from memory etc that are created 'as an essential step in the utilization'. So no, if you buy a copy of a program, you are sanctioned BY LAW to install it to the hard drive and run it in ram without needing express license from the rights holder. And its not a case of 'fair use' either, its a provision enshrined in the copyright act.
That said, section 117 specifically applies to 'computer programs'. But honestly 'computer program' is a pretty blurry target. After all, suppose I argue that an MP3 isn't a computer program because it must be 'played back' by another piece of software. But then, that is true of a python script or a .net application too.
And conversely the internal structure of an mp3 file is a series of mp3 headers and data blocks, this is analogous to a series of commands and the data they are to be acted on... which is pretty much what a computer program is.
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".
And I suspect that even without the "mp3s are programs too" argument, that MOST (not all, but most) people including legislators, judges, and juries, would all agree that the spirit of section 117 should apply to all digital media, not just 'computer programs' (whatever exactly that might be limited to).
After all, a modern CPU should be expected to make copies of the media in Level1, 2, 3 cache, and main memory, as well as some of it maybe ending up in swap, or on the disc during sleep/hibernate, or possibly DMA transferring it to buffers on the audio chipset to... and it does all this copying even if you play the song back directly from the CD. (And this series of copies might well occur if you play the disc on your bluray player or car audio deck instead of your PC too.)
And worse, in the process it transforms it from MP3 to WAV, and then applies some algorithm to turn the stereo into 6 channels for your 5.1 speaker setup... in other words it creates an unlicensed derivative work too... oh the horror. :)
In any case, I think we don't have to worry overly much about this.
Re:That sounds reasonable... (Score:5, Interesting)
There's no such thing as boilerplate, the way I look at it. Legal documents have consequences, and need to be drafted with reference to the situation at hand. I have actually submitted an amicus brief, and a revised amicus brief, in this very case,
Great! We can we can just cut-n-paste yours and fill it in with our own points.
Thanks for bringing a smile to my weary face. You deserved your "Funny" mod.
Re:Wow, the RIAA is bad at this (Score:5, Interesting)
What do you think they were up to in trying to get access to videos? I can imagine why they might want to see playlists, but videos can't possibly bear on the RIAA's case since they don't represent video owners. Are they in cahoots with the MPAA? Fishing for something embarassing ("The defendant is obviously a scumbag: we found 'Debbie Does Dallas' on her hard drive.")?
That's an easy one:
1. Fishing (maybe they can find some music videos, maybe they can find something the MPAA can use, etc.)
2. Blackmail (in a Tennessee case they got a copy of the guy's hard drive, were allowed to rummage through it, found some legal but pornographic videos, and used them to blackmail him into a settlement).
Re:OK, now what... (Score:3, Interesting)
Yeah, there's earlier precedent that "copying into RAM" isn't making a copy for copyright purposes.. the DMCA even tries to make it explicit by saying that copies made in the normal running of a program are not copying for copyright purposes.. but this doesn't stop every fucking lawyer from trying to pull this shit every time they want to stop people from running programs in ways their client doesn't like. The recent abomination of Blizzard vs Glider is a prime example. The amble precedent and the explicit codification in law of "intermediate copies" being innocuous didn't stop the judge in that case ruling in favor of Blizzard. Watching copyright court cases and watching Texas Hold'em Poker is a similar experience, both a boring as hell until the end and all the commentators are no better than random guessers..
Re:Wow, the RIAA is bad at this (Score:3, Interesting)
"Are they in cahoots with the MPAA?"
Belmolis, there is at LEAST one blonde in your immediate family? And, you are having a blonde moment, right?
That top-secret ACTA treaty that Obama refuses to allow the public to see? Guess who DOES get to see it? http://www.boingboing.net/2009/03/14/partial-list-of-corp.html#previouspost [boingboing.net]
Basically, every inbred fool with a few million dollars worth of "Intellectual Property" is allowed input in this treaty, but the common man, and human rights activists seeing the same treaty would be bad for national security. Yes, all the inbreds are sleeping with each other.
Re:That sounds reasonable... (Score:4, Interesting)
Ray, something else to add to your arsenal (I mentioned here elsewhere). The existence of a "shared" directory does not mean anything was or could be shared with various BitTorrent clients. Various I have used require a shared directory set, but then allow a user to either (a) not actively share it (it exists, it can be shared later, but it isnt currently being shared), or (b) set the upload rate to zero while still "sharing" it (ie: aint gonna do a thing at 0bps even though it is "shared").
Methinks in many cases, the **AA should thus not be able to rely on the existence of a shared folder (and/or it's contents) as any sort of indication of sharing. And of course, as you have probably already thought of, even if shared, it gives no indication that the files in question were in such a folder when it was being actively shared.
I'd think the most the RIAA could prove from a shared folder is that the folder exists, it has certain content in it and... hmmm... well, that's it without actual proof that the torrent client actually shared anything.
Re:An educated judiciary (Score:4, Interesting)
Re:Wow, the RIAA is bad at this (Score:1, Interesting)
Doesn't RICO cover blackmail?
Plus all their lying in court can easily count as fraud.
That makes 2 out of 35 crimes, giving green light for RICO?
Re:OK, now what... (Score:3, Interesting)
I personally think that copies which exist only in RAM should not be considered copies at all, but we would need the Supreme Court to reach that question to know for sure.
I'd hate to want to argue that since it is possible to construct a device which would hold persistent (at least on the scale of weeks) copies of media files purely in RAM, perhaps by mounting a ramdisk and preventing that memory from being paged out to disk. To me, it is the purpose of the copying that is important; if it is just a normal technical part of the process of playing that media file (assuming that the originating copy of the file has been legally acquired) then it is a clearly fair use, whereas putting it up on a website (however implemented) is a clearly unfair use (again, with some basic assumptions).
Re:Whoa! (Score:1, Interesting)
It is not nonsensical to require a plaintiff to consider possible affirmative defences a defendant may raise any more than it is to require a public prosecutor to consider constitutional and facial defences a defendant may raise at trial. It is not a coincidence that the rules with respect to these are similar and similarly numbered in the federal civil and criminal procedures.
Unfortunately in the U.S. system there is little impediment to bring a suit that does not even pass a laugh test with respect to affirmative defences, even in copyright law. Likewise, there is little deterrence against criminal prosecutions that clearly would not pass constitutional muster. A good attorney helps the adversarial system minimize cost to a defendant in these cases, but the defendant is not left whole for the most part after final judgment, and may face enormous and unsustainable costs reaching that point.
In some common law jurisdictions it is becoming common for the courts to assess all costs against a plaintiff who performed an unsatisfactory analysis with respect to affirmative defences even if the parties have an agreement with respect to costs in the case.
In general, parties who desire to be protected on costs should make adequate offers and respond to reasonable ones; parties should not be penalised on costs for not responding to clearly inadequate offers, nor should they be penalised on costs if their reasonable offers are rebuffed.
A party which causes the other parties and the court to incur costs unnecessarily should be penalised on costs, even if successful. Unnecessary costs begin with the filing of a suit wherein there is an insufficient analysis of affirmative defences. In copyright infringement cases, this means that the plaintiffs attorneys have a duty to the court and to their client to perform an adequate fair use analysis before proceeding.
Obviously some attorneys disagree with -- or are ignorant of -- this, and certianly NYCL has had some choice things to say about the attorneys for the plaintiffs in the music indurstry v the people cases with which he is au fait.