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Court Rejects RIAA's Proposed Protective Order 197

Posted by kdawson
from the protective-of-whom-exactly dept.
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.'"
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Court Rejects RIAA's Proposed Protective Order

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  • Whoa! (Score:5, Funny)

    by Anonymous Coward on Tuesday May 19, 2009 @09:17PM (#28020555)
    I typed some queries for lyrics into Wolfram alpha, and now they have to fight the RIAA!!
    • Re:Whoa! (Score:5, Insightful)

      by HermMunster (972336) on Tuesday May 19, 2009 @09:53PM (#28020789)

      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:Whoa! (Score:5, Insightful)

        by TinBromide (921574) on Tuesday May 19, 2009 @09:58PM (#28020819)
        Not precisely. Preponderance of evidence is forced upon the recieving party. I've been involved with cases where preponderance of evidence against the plaintiff got cost shifting, though most of the time its the plaintiff saying "Yeah Huh!" and the defendant replies with the ever so eloquent "Nuh Uh!".

        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:Whoa! (Score:5, Funny)

          by Shadow of Eternity (795165) on Tuesday May 19, 2009 @11:07PM (#28021265)

          This man speaks the truth. With the exception of evidence a civil case is literally "He did X Y Z and it hurt me!" on one side and "Didn't do X, don't know anything about Y, Z's their fault" on the other side.

          Or alternatively you could imagine two four year olds fighting but very well dressed.

  • by actionbastard (1206160) on Tuesday May 19, 2009 @09:28PM (#28020633)
    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.
    • 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.

      • by actionbastard (1206160) on Tuesday May 19, 2009 @10:31PM (#28021019)
        When one side can't afford to get good legal representation, the judge doesn't get to see the whole picture.
        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.
        • by QuantumG (50515) * <qg@biodome.org> on Tuesday May 19, 2009 @10:35PM (#28021049) Homepage Journal

          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: (Score:3, Funny)

            That would be like saying you can't assess the quality of a basketball player unless you understand exactly how he does his thing. You don't really need to understand copyright law before you can make a quality assessment.

            Here's a simple suggestion if you want to compare lawyers: keep a set of win/lose statistics for all copyright cases, for each lawyer in this specialty.

            Here's a simple suggestion if you want to ensure "fairness": Let both sides choose their lawyers, then have the judge flip a coin and

            • by anagama (611277) <obamaisaneocon@nothingchanged.org> on Wednesday May 20, 2009 @01:23AM (#28022045) Homepage

              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.

      • by tebee (1280900) on Wednesday May 20, 2009 @04:29AM (#28022797)
        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?
        • Re: (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.

  • by TinBromide (921574) on Tuesday May 19, 2009 @09:32PM (#28020659)
    Any lawyer that can't come up with a production order that sticks to court ordered criteria should be sanctioned on the spot. I.E. you have a list of things that your order MUST satisfy, yet you think that there quite a bit of flex in it. Its like getting a shopping list with milk, eggs, butter, bread and coming home with cheese, quiche, marjoram (not margarine) and chips. How daft must the RIAA lawyers be to do this? In my experience as a COMPUTER FORENSICS EXPERT I have never seen attorneys flaunt a court order and attempt to come up with new criteria. I guess I'm in the wrong circuits.
    • by TinBromide (921574) on Tuesday May 19, 2009 @10:00PM (#28020839)
      PS, its sad that I was modded funny, but my post wasn't written to be funny. I guess that's just the state of things with the RIAA where a semi-lay person's translation of an asinine situation gets modded funny...
    • 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: (Score:3, Funny)

        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.

        Is this your unofficial campaign announcement for federal circuit judge, Ray? I'd vote for you!

      • by belmolis (702863) <.ude.tim.mula. .ta. .resopllib.> on Tuesday May 19, 2009 @11:24PM (#28021385) Homepage

        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.")?

        • 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).

          • by Barny (103770)

            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

            • 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.

          • by mvdwege (243851)

            Or:

            3. "He's been sharing copyrighted video. Obviously, that makes him a pirate, so he must have been sharing our copyrighted music as well."

            Given the press releases coming out of the copyright cartels, it is no stretch to infer that they really think like this.

            Mart

          • Here's what I don't get: Videos, and, well, anything not directly related to RIAA's case, should be off-limits, obviously. But I'd certainly allow playlists. I mean, from my point of view play lists shouldn't have nearly the same weight as the actual music files, but they certainly constitute circumstantial evidence that the referred music files were available at some point in time.

            As a more concrete (but hypothetical) example, if the guy being sued by the RIAA were the sort who kept a huge folder of record

        • Re: (Score:3, Interesting)

          by Runaway1956 (1322357)

          "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

    • Re: (Score:3, Interesting)

      by rozthepimp (638319)
      Regarding your comments re the filings of RIAA lawyers, the oldest /. expression comes to mind - "You must be new here". The unbelievable filings of HRO, Dwyer & Collora, and their predecessors over the last few years leads to the conclusion that there are a lot more bottom feeder law firms out there than anyone in the practice of law would like to admit. As someone who left the law profession a few years ago, I can say now that IANAL, but the inane motions/filings on behalf of the record company pla
    • by snowgirl (978879) *

      I've been working with some civil cases, and this seems to happen a lot with particularly unethical clients.

      We had a settlement agreement made in court, in front of a judge, and yet the other party still seems to think that offer+acceptance does not a contract make. So, they've tried to enhance the deal a ton, but we're not having any of it.

      Of course, this is he same person who broke into my house in order to steal my briefcase full of evidence against him... ah, what a lovely world we live in... if it's n

  • OK, now what... (Score:5, Interesting)

    by weaponx71 (524109) on Tuesday May 19, 2009 @09:38PM (#28020693)
    SO, someone scans the drive, maybe comes across a few music files. They log said files and each file might have meta data information. But what about file sharing data? Does the fact that I have uTorrent ensure a copyright infringement or me a distributor? Do such programs keep logs of all the files shared or distributed? And what would be in the meta data that would also label me as the above mentioned. If any music files WERE found then if you can produce the original disk great, if not then your up the creek with out a paddle I guess. I am glad to see the RIAA not get their way on this front. Letting them choose the company would have been WAY out of line and far to great a possibility of abuse. Also glad to see a court that actually seems like it knows what it is doing.
    • Re:OK, now what... (Score:5, Informative)

      by TinBromide (921574) on Tuesday May 19, 2009 @09:47PM (#28020757)
      Digital forensics is a touchy mistress. The best they can come up with is uTorrent or other filesharing client data, i.e. you can read in the registry or configuration files where the shared folder is. If files are in the shared folder, you can say they were being shared. Some really nice (for forensics analysts) software keeps a log of when the software was started and shut down, if the creation time of a file falls within the log, you can add up the time and say that the client distributed that file for the duration that the logs said the software was active. Its up to the plaintiff to disprove that allegation, but he said she saids very rarely end up in court the way you'd think.

      You can also find all the .torrent files and say that those files were downloaded, and uploaded as a side effect of how p2p software works. I think that the playlists and other info has nothing to do with the case at hand. If someone says they rip all of their CDs to their computer and has the hard copies (or receipts) to prove it, there is nothing the RIAA can do. However, if the remnants of file sharing data (share ratios, shared folders, seed status, etc) says that they ripped songs and then shared them, the plaintiffs may be in trouble.

      Remember, the RIAA may be saying that downloading is illegal, but they're prosecuting based on unauthorized distribution laws (uploading).
      • Re: (Score:3, Informative)

        by sumdumass (711423)

        Remember, the RIAA may be saying that downloading is illegal, but they're prosecuting based on unauthorized distribution laws (uploading).

        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

        • by Zordak (123132)
          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.
          • Re:OK, now what... (Score:5, Interesting)

            by NewYorkCountryLawyer (912032) * <rayNO@SPAMbeckermanlegal.com> on Tuesday May 19, 2009 @11:18PM (#28021347) Homepage Journal

            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:OK, now what... (Score:5, Insightful)

              by ScrewMaster (602015) * on Tuesday May 19, 2009 @11:30PM (#28021423)

              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.

              • ..the wires leading from a phonograph's cartridge through the amplifier to the speakers are transiently storing a portion of the copyrighted signal.

                Gonna be a bummer pulling the date/time logs out of that one!

              • Stop giving them ideas.

              • Re: (Score:3, Insightful)

                by L4t3r4lu5 (1216702)
                If you were to take the fraction of a second of audio "stored" in the wire between the stylus and the amp, and the amp to the speakers only, would it be recognisable as a portion of the copyrighted work?

                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.
            • Re: (Score:3, Interesting)

              by QuantumG (50515) *

              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 explici

              • 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.

                It probably doesnt stop many lawyers who dont fuck either... but then again, I've never conducted any sort of study or research, so I'm just guessing.

            • by Barny (103770)

              Maybe it is time for "copy" to be amended to "persistent copy", and of course have persistent defined as specific circumstances (easy one would be "on power loss retains data" but a specific length of time, perhaps a percentage of the duration, would do in a pinch).

            • Re:OK, now what... (Score:4, Informative)

              by RWarrior(fobw) (448405) * on Wednesday May 20, 2009 @01:09AM (#28021983)

              > > 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 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.

              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: (Score:3, Interesting)

              by dkf (304284)

              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

          • Re: (Score:3, Interesting)

            by vux984 (928602)

            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 pr

            • Re: (Score:3, Insightful)

              by Zordak (123132)
              I'm well aware of section 117. It was a direct response to the holding that a copy in RAM is a copy of the program. But I disagree that it applies to an MP3 file. The canons of statutory construction would require you to give the term "program" its ordinary meaning in most cases. So if you're in court arguing the "spirit of the law" (or in other words, begging the court to exercise its equitable powers), you've pretty much already lost the case. And the law is full of "fuzzy lines" where we are requir
              • by vux984 (928602)

                The canons of statutory construction would require you to give the term "program" its ordinary meaning in most cases.

                Per the copyright act itself:

                A "computer program" is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

                Its not exactly like you have to contort to squeeze MP3's into that definition. You only need to realize that an mp3 LITERALLY is a set of instructions to to be used indirectly (by an mp3 decoder or "interpreter") in

            • Re:OK, now what... (Score:4, Insightful)

              by PeterBrett (780946) on Wednesday May 20, 2009 @03:17AM (#28022529) Homepage

              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.

              • 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.

                What? Most PostScript files that are generated nowadays, especially those created by a printer driver, are so trivial that they can be converted into PDF mechanically, without ever executing the PostScript code.

      • Re:OK, now what... (Score:5, Interesting)

        by happyslayer (750738) <david@isisltd.com> on Tuesday May 19, 2009 @11:24PM (#28021391)

        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:5, Informative)

          by NewYorkCountryLawyer (912032) * <rayNO@SPAMbeckermanlegal.com> on Tuesday May 19, 2009 @11:43PM (#28021513) Homepage Journal

          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.

          • 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.

            Now, I find that remarkable. To be honest, at face value it doesn't speak well for the quality of representation those defendants had.

          • Re: (Score:3, Funny)

            by RobertM1968 (951074)

            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.

            The day the RIAA and their minions burn in hell: priceless

      • Yes, but that still means nothing. I have a BitTorrent client (used for legal means to help seed Star Trek New Voyages episodes) that "shares" folders with outbound speeds from full connection speed to incremental values down to zero.

        Thus, I can have my "shared" torrent folder, and have the outbound speed set to zero or something with a near equal sharing consequence.

        A shared folder really means nothing. I could "share" my "shared" folder all day long at 0k outbound. What would I be guilty of sharing?

        Som

  • Not having actually read any of Ray's excellent references he cites, the proceedure he outlines sounds reasonable. Just because a person stands accused in court (civil or criminal) does not mean they are automaticly guilty or that they should lose the protection of the law. In fact IMNSHO, they should receive greater protections. 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?
    • Re: (Score:3, Insightful)

      by Tanktalus (794810)

      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...

      • 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...

        But that's the whole point. I'm an engineer. I know more about computers than the judge does. I want to give reasonable, logical direction in a technical subject to the judge. Yes, there is probably some bias to my point of view, but it's up to the judge to determine the amount, and whether or not to believe my information. Since IANAL, I

        • No, an amicus brief would not usually be the place to put in evidence of that nature, but there have been amicus briefs which discussed factual issues, such as social and economic conditions in society, and things of that nature, which were called "Brandeis briefs", named after late Sup. Ct. Justice Brandeis from his days as an appellate lawyer.
    • 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].

      • by Jah-Wren Ryel (80510) on Tuesday May 19, 2009 @11:03PM (#28021227)

        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.

      • by RobertM1968 (951074) on Wednesday May 20, 2009 @02:44AM (#28022397) Homepage Journal

        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.

  • Thoughts.... (Score:5, Interesting)

    by cbiltcliffe (186293) on Tuesday May 19, 2009 @09:41PM (#28020719) Homepage Journal

    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?

    • Re:Thoughts.... (Score:5, Informative)

      by TinBromide (921574) on Tuesday May 19, 2009 @09:51PM (#28020781)
      Oldest trick in the book. Change .jpg files to .doc or .xyz and the FBI won't think to look for your CP in those extensions? Not exactly. Modern forensics software looks at the first 4 bytes of a file and can tell you what kind of file a piece of data declares itself as. If you change one or all of those bytes but some forensic software can do a data-carving and pull out multi-media data from a hard drive, revealing all of your miley cyrus mp3s.
      • Re:Thoughts.... (Score:5, Insightful)

        by cbiltcliffe (186293) on Tuesday May 19, 2009 @10:32PM (#28021027) Homepage Journal

        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:5, Insightful)

          by sumdumass (711423) on Tuesday May 19, 2009 @11:08PM (#28021267) Journal

          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)

          by Zordak (123132) on Tuesday May 19, 2009 @11:12PM (#28021301) Homepage Journal
          It's not the forensic expert looking at the files. It's an automated tool. Carried to its extreme, the same logic would say the tool can't look at the filename. The tool has to look at all the files. The person only gets to look at the ones that are music files.
      • by rdnetto (955205)

        Or even better, just store it on an encrypted partition or use an esoteric lossless codec. Maybe .ape or .tta, but probably not .flac

    • Re: (Score:2, Interesting)

      I just tried this on Ubuntu, and the file was still recognized (mime-type definitions include more than file extensions in Linux, such as file headers, etc). So if they're booting into a Linux live session, this would presumably fail as an evasive technique.
      • by shentino (1139071)

        Shuddap...don't give them IDEAS man!

    • Re: (Score:3, Insightful)

      Your general point, that a variety of techniques that would qualify as obfuscation or even steganography, could be used to evade this search is perfectly valid.

      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
    • by T Murphy (1054674) on Tuesday May 19, 2009 @10:09PM (#28020879) Journal

      renamed all your mp3's to .ffm

      They violated the court order, your Honor- there is no way they could have known C:\music\Beatles\Sgt._Peppers_Lonely_Hearts_Club_Band\Lucy_in_the_Sky_With_Diamonds.ffm was a music file!

      • No, but C:\Data\Customer\BTL\SP\LSWD.ffm sure as hell doesn't look like it.

        • Re: (Score:3, Interesting)

          by Repton (60818)

          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!

          • Not to be pedantic, but the judge just quashed the RIAA's attempt to be able to look at playlists.
          • .. WTF? How much value do you put on your time and frustration? Just buy the bloody stuff already!

            Already have.

            This is a major point, how many times do I have to pay for a format transfer? How long do I have to keep my 33LP records to prove I own the music?

            At what point does the iconic music from childhood pass into the public domain? (classic rock)

            In my lifetime working with media I thought the turning point in my life in the media industry was when a geek friend of mine introduced me to mp3's.

            I literally could not believe you could compress so much information into a small file and generate a faithf

    • by jonwil (467024)

      If the expert is only allowed to look for music files, store your music as video clips with empty/blank video streams.
      Such files would even play on iPhones and iPods touch/video/classic/nano
      Should be easy to rig up a patch to FFMPEG that can convert a MP3 file into an AVI or MPEG container with MPEG layer 3 audio and an empty video stream in whichever codec will produce the smallest filesize (and is supported on your player/portable device of choice). Should even be possible to have it done without re-compr

    • by blueg3 (192743)

      Booting the Windows install on the hard drive may well be within their bounds, and it's certainly within technical limitations.

      Anyway, it's enormously unlikely that using an automated tool to examine all files' data to determine if they are music or not would qualify as "looking at" non-music files.

    • by harl (84412)

      You're relying on a major assumption, that they can only search based on extension.

      What is they are using a program that scans each file to see if it's a music file? If the third party expert is doing it and only turns over verified music files to the RIAA then how does it violate the order?

  • At what point.... (Score:2, Interesting)

    by Darkness404 (1287218)
    At what point does a song lose copyright? For example, lets take an artist who has not legally released any music for digital downloads only for CDs. Because an MP3 of the song sounds different than the CD version can you argue that copyright has truly been violated? Or lets say that MP3 was then transcoded with some loss of quality, at what point can it be said that it wasn't the original recording? The case is rather cut and dry with purchased music (everything sold on iTunes is the same file minus some m
    • Re:At what point.... (Score:5, Informative)

      by krlynch (158571) on Tuesday May 19, 2009 @10:00PM (#28020835) Homepage

      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.

      • But it still makes no sense. Its like buying a book, smudging the ink, making a copy of that, etc, until it is virtually unreadable. For example, lets say the phrase "I ate a cookie" is under copyright. I doubt that saying "I ate a cook" would be infringing on the phrase. Similarly "I ate" wouldn't be infringing on the phrase. Lets take this another step further and say I have a program that randomly picks A noun, past tense verb, a or an and another noun. And lets say it comes up with the phrase. Is that i
  • What's all that mean in English?

    • A translation into Lay Man:

      RIAA: Yo, we'z want to search for other shizzle ma homies can use to shaft dis fool!Fo' sho'.

      Court: DENIED!*Bitchslap*

      All clear now?
  • Wow! "Metadata"! (Score:5, Interesting)

    by Bob9113 (14996) on Tuesday May 19, 2009 @10:23PM (#28020965) Homepage

    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. :)

    • 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. :)

      Let us hope that that is the case.

    • 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. :)

      To quote WOW players: WOOT!

  • by erroneus (253617) on Tuesday May 19, 2009 @10:39PM (#28021077) Homepage

    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: (Score:3, Funny)

      by gordguide (307383)

      " ... 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? ..."

      Why, that would be "RIAArogant.

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