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.'"
Whoa! (Score:5, Funny)
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: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:Whoa! (Score:5, Funny)
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.
An educated judiciary (Score:5, Insightful)
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: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: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.
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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
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:An educated judiciary (Score:4, Interesting)
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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.
Wow, the RIAA is bad at this (Score:5, Insightful)
Re:Wow, the RIAA is bad at this (Score:5, Funny)
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.
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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!
Re:Wow, the RIAA is bad at this (Score:5, Insightful)
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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: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).
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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
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.
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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
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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
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"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
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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)
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).
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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
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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: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.
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..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!
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Stop giving them ideas.
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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)
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
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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.
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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)
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)
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
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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
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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)
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.
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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)
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)
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.
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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.
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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
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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
That sounds reasonable... (Score:2)
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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...
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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
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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].
Re:That sounds reasonable... (Score:5, Funny)
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.
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: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.
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?
Re:Thoughts.... (Score:5, Informative)
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: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, 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:Thoughts.... (Score:4, Insightful)
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Or even better, just store it on an encrypted partition or use an esoteric lossless codec. Maybe .ape or .tta, but probably not .flac
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Shuddap...don't give them IDEAS man!
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But using Linux would violate the court order, because it would examine every file on the machine, rather than just music files.
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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 r
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You dropped this.
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I was wondering where that went!
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They could always do an off-the-record search, get the right inodes (or whatever, depending on fs) and then do another pass under strict enough conditions to allow it to be evidence, but with the knowledge of where to look.
Maybe someone with more knowledge will say this isn't allowed but I was under the impression that it's not that the forensics expert isn't really banned from scanning the drive using a particular tool, it's just that the evidence has to meet certain strict requirements.
Sort of like doing
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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
Re:Thoughts.... (Score:5, Funny)
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!
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No, but C:\Data\Customer\BTL\SP\LSWD.ffm sure as hell doesn't look like it.
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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!
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.. 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
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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
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Until the MPAA comes looking..... :)
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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.
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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?
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It would be trivial enough and in fact make more sense to checksum the mp3 data sans id tag.
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But the file command examines the file.
If it's a music file, they're fine.
If it turns out it's not a music file, they've violated the court order.
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Their program scans for anything with an mp3 extension. It finds this. Hey look, it's not music. Look how that would turn out.
At what point.... (Score:2, Interesting)
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.
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I can't seem to find any on google of it though...
English? (Score:2)
What's all that mean in English?
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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)
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. :)
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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.
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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!
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?
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" ... 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.