Judge Says RIAA Can't Have Hard Drive

NewYorkCountryLawyer writes "A Texas judge has refused to allow the RIAA untrammelled access to the defendant's hard drive in SONY v. Arellanes. The court ruled that only a mutually agreeable, neutral computer forensics expert may examine the hard drive, at the RIAA's expense, and that the parties must agree on mutually acceptable provisions for confidentiality."

Comments

This sounds like a good precedent

[JWideman]

Could it mean an end to RIAA extortion in the near future?

Re:This sounds like a good precedent

[Anonymous Coward]

I'll stick the RIAA with something hard....

Re:This sounds like a good precedent

[maeka]

It just means that a court has ruled the plaintiff can't be the one examining the defendant's hard drive. Why it took so long for a judge to decide the one filing complaint isn't exactly a neutral party... maybe this is the first time someone has complained.

Re:This sounds like a good precedent

[silverkniveshotmail.]

Could it mean an end to RIAA extortion in the near future?

Are you that hard up for karma?

no, no, no, no. A judge saying that RIAA can't have the defendants hard drive does not mean that RIAA's crap is coming to a crashing halt.

Re:This sounds like a good precedent

[ObsessiveMathsFreak]

A judge saying that RIAA can't have the defendants hard drive does not mean that RIAA's crap is coming to a crashing halt.

It pretty much does consider the RIAA will now have to prosecute the case on the facts. A remotely full hardrive with a defrag scheduled every week is all the plausable deniability you need.

Re:This sounds like a good precedent

[Anonymous Coward]

... duck season! FIRE!

Re:This sounds like a good precedent

[shmlco]

Didn't we just have the story about the moron who wipped and defragged his drive after it was requested for examination? And judged guilty?

Want deniability? Just don't download the crap in the first place.

Re:This sounds like a good precedent

[shmlco]

And no, it's not flamebait, it's the truth. Want cheap music? Buy used CDs from the local record store or half.com for pennies on the dollar, and toss the disc into a box in the garage.

It's cheap, legal, and if you get accused just bring in the box and dump it on their desk...

Re:This sounds like a good precedent

[anagama]

Didn't we just have the story about the moron who wipped and defragged his drive after it was requested for examination? And judged guilty?

And well he should have been. That sort of destruction of evidence, if the case goes to a jury, typically leads to an instruction to presume the evidence would have been against the destroyer's case.

Anyway -- you don't deserve a flamebait at all. It is also bothersome to see all the ways people think of to try to avoid being honest (this relates to the GP talking about "plausible deniability").

Re:This sounds like a good precedent

[LindseyJ]

Flamebait? Heaven forbid someone advise against theft.

Re:This sounds like a good precedent

[scotch]

Did somebody steal something?

Re:This sounds like a good precedent

[AmberBlackCat]

It pretty much does consider the RIAA will now have to prosecute the case on the facts. A remotely full hardrive with a defrag scheduled every week is all the plausable deniability you need.

Yeah, fill it up with the horse porn.

Re:This sounds like a good precedent

[bhima]

I think what you need is an encrypted filesystem with multi level layered plausible deniablity. There are a variety of such things in existence, and I think that truecrypt will do it for windows. I use OpenBSD myself.

If you choose to use an industry standard encryption, over an exotic more powerful but slower encryption, you can also buy used hardware encryption accelerators for a pittance. This will allow you use a strong enough encryption configuration to outlast the longest of court ordered discovery processes without a day to day performance penalty. I know that there are BSD drivers for them and I assume windows drivers are available from the manufacturer. VIA corporation makes a series of processors with inbuilt encryption instructions, which given the capabilities of the CPU itself are very reasonable and OpenBSD drivers are also available. Of course if you have a standalone server which in all likelihood will be mostly idle you could just run the 'most' encryption you could tolerate. I have no idea if employing a more exotic encryption would an advantage against these people but I know it's not particularly one against the crypto crowd.

With the existence of tiny & reliable high capacity flash drives it is possible, with a little planning, to dramatically increase the likelihood that during a court ordered search & seizure it would be disconnected, overlooked, and left behind. It is also possible that such devices could be removed on a regular basis such as when you are not home. Storing an encryption key on these could be a reasonable balance between security and convenience. Storing the root binaries on one limits the options of a hacker when the key is not installed.

It also helps to have a hobby that generates volumes of digital data. The reason that I have a 3 terabyte RAID array is because not only are drives cheap but I have a 16 megapixel camera and do _a lot_ of photography; not because I have a 400 gigabyte audio and 900 gigabyte video collection.

Now I will be the first to admit that it possible to screw yourself with this setup:

      I use an OpenBSD server and a Mac for my desktop. It does little good to hide the MP3s somewhere else when iTunes keeps a detailed accounting of your collection. However after a fair amount of use it is possible to ferret out these little snafus and correct them.

      I have been unable to find a wireless connection that was both secure & convenient so I don't use it (I haven't tried very hard because I don't really need it).

      I'm sure any court would view this level of encryption and this setup as highly suspicious but outside of America I have the impression that the courts are little more fair in this regard and would not assume that not only are you a pirate but you are a terrorist as well.

      If you have a hardware failure, a Jack Daniels moment, or you just plane loose the key you will be well and truly fucked without a subpoena resistant backup plan. I have a such a plan and have tested it (courtesy of Jack Daniels).

Incidentally it is also fairly easy to trunk a pair of gigabit nics together and maintain an admirably quick connection between your workstation and your server

Re:This sounds like a good precedent

[Registered Coward v2]

Didn't we just have the story about the moron who wipped and defragged his drive after it was requested for examination? And judged guilty?

That little thing about destroying evidence and "preponderance of evidence" in civil cases no doubt came into play.

Re:This sounds like a good precedent

[Flendon]

A remotely full hardrive with a defrag scheduled every week is all the plausable deniability you need.

But how am I supposed to fill 250GB other than with downloaded movies and songs? Oh wait... Pr0n!

Re:This sounds like a good precedent

[Courageous]

Are you looking for a steganographic file system?

http://www.mcdonald.org.uk/StegFS/

At all times, it's deniable that the files exists, even deniable that there are files.

At most, an investigator could determine that you have the stegfs software, but that's all really.

C//

Re:This sounds like a good precedent

[bhima]

I have tried this briefly but found it inconvenient to use on a daily basis. The system I am using is extremely transparent and I'm fairly confident in its security.

Re:This sounds like a good precedent

[suggsjc]

Completely off topic, but man do I miss *good* cartoons.

I keep telling my wife that when we have kids I'm going to stock up on tons of Looney Toons and stuff from the good ole days (probably more for my own enjoyment than the kids) and make the kids watch that instead of the crap they have on today.

Ok, on-topic comment...RIAA sucks (that should get me modded back up)

Re:This sounds like a good precedent

[Anonymous Coward]

What if my computer was hacked and it wasn't me that downloaded illegal stuff in the first place?

Re:This sounds like a good precedent

[Anonymous Coward]

Means an end to this potential scenario:

RIAA hard drive auditor: Boss, we searched every bit on the hard drive. There are no MP3 files on the drive.

RIAA boss: No problem - plant some.

Re:This sounds like a good precedent

[MightyYar]

It is also bothersome to see all the ways people think of to try to avoid being honest

Honesty in this case gets the bad guys paid.

Re:This sounds like a good precedent

[Anonymous Coward]

I've often wondered how they could determine the HD was wiped clean. Unless he did something obvious like wiping the data with 0's using recently installed secure erase software, I fail to see how they could prove that anything was actually erased from the drive.

If I take a hard drive with illegally downloaded music or movie files on it and wipe the incriminating data with random bytes using a portable secure erase program, how could anyone prove that I erased anything?

Re:This sounds like a good precedent

[freakmn]

Didn't we just have the story about the moron who wipped and defragged his drive

Hey, whatever floats your boat. Whips, chains, defragging, black leather and PVC. With the size of hard drives today, I'm sure there's room for some of that.

Re:This sounds like a good precedent

[KDR_11k]

Whatever the intent of copyright is, it's certainly not letting people download 0day rips of new music.

Re:This sounds like a good precedent

[anagama]

Honesty in the first place keeps you from even being sued.

Re:This sounds like a good precedent

[KDR_11k]

You show proof that you were hacked.

Re:This sounds like a good precedent

[KDR_11k]

Paid for their product. You're free to buy someone else's product if you don't like the RIAA. But don't go downloading the RIAA's product illegally. That just let's them know that you want their product badly but there's a "security hole" that needs to be plugged before you start buying so investing into DRM and lawsuits seems like a more profitable option.

Re:This sounds like a good precedent

[KDR_11k]

Even in criminal cases destroying evidence is interpreted as meaning the evidence was the worst case for the destroyer. If it was any less he shouldn't have destroyed it.

Re:This sounds like a good precedent

[KDR_11k]

He formatted his drive and did a clean install of the OS, hen sent that in. It was shown that the format was after the subpoena and that's it.

Re:This sounds like a good precedent

[KDR_11k]

When you are subpoenaed to turn over a harddrive and that harddrive is encrypted you're required to hand over the means to decrypt it as well since they are considered part of the evidence. If you can't produce the key but it can be shown that you had it after the subpoena it's assumed that you intentionally hid or destroyed it and will be held against you.

Re:This sounds like a good precedent

[bhima]

Which is why I said you needed to use a encryption system with multi level layered plausible deniablity.

Just so it is clear what I meant by this is that it is possible to hide various groups of files in a single filesytem. The basic idea that it impossible to say what files exist or how many many files exist or how large in summary the files are, or even that the defendant has provided the totality of the keys denies a significant portion of the a prosecutors strategy.

  'Rubberhose' has documentation which is a good place for beginners to start but I don't think the project is still actually making progress anymore. This isn't really an issue as there are a variety of methods to achieve the same goal.

    Rubberhose also has a few statements on legal issues, I would discuss these with a lawyer before putting much weight on them. I have and the Austrian laws and my setup is expressly designed around them. I can not make statements about American laws or court systems as it possible that they are fairly different than the Austrian ones. In my opinion, and I am not a lawyer, before embarking on any encryption scheme you need to consult a lawyer competent in the laws in you jurisdiction; in my case it cost me less than the hardware I use.

    If you have any other ideas regarding flaws in my setup I'd be interested in hearing them

Re:This sounds like a good precedent

[MightyYar]

My hope is that by sharing their IP far and wide we can drive them to change their business model or drive them out of business. I'm sure not going to try to go after them toe-to-toe in congress... anyone that can convince the government that 90 years is "reasonable" is way too powerful to take on with traditional means. I'd love it if they over-DRM their content. That will leave the door open for those that don't... could even break their stupid little cartel.

Re:This sounds like a good precedent

[MightyYar]

How about this - I'll start playing fair when they do. Anyone who plays fair in an unfair fight is doomed to lose. "Honesty" is not an attribute that is widely associated with the RIAA.

Re:This sounds like a good precedent

[Anonymous Coward]

Your arguement lacks logical consistency. Perhaps you should put down the drugs and try "thinking"

Re:This sounds like a good precedent

[MightyYar]

Nice flame. Like a New Jersey politician, you accuse me of lacking logical consistancy and then resort to ad hominem attacks. Go look up "hypocrite". If my argument lacks logical consistency, then why have downloads hurt CD sales? It's already working. Try countering my argument and pointing out its logical inconstancy.

woo, guess a few judges have read the law

[swschrad]

about time RIAA is held to the law.

Re:woo, guess a few judges have read the law

[owlicks58]

This isn't a matter of legal debate, it's simply compliance with the Federal Rules of Civil Procedure. In order to compel the defendant to produce the hard drive, the plaintiff (Sony) had to show that the information contained therein is relevant (under FRCP 26(a)). In this case it certainly was, as the court stated. The defendant brought up some legitimate concerns about privacy of documents not in dispute on the hard drive, and the judge agreed that to allow a mirror of the hard drive by Sony would be overly broad. This strikes a fine compromise between the concerns of both sides.

Re:woo, guess a few judges have read the law

[NewYorkCountryLawyer]

Yes, but the RIAA says this is the very first time this has happened to them. So I wouldn't diminish its significance. I predict that this decision will be the gold standard for future hard drive analyses in the RIAA v. Consumer litigations, and that the RIAA is not at all happy with it, since the RIAA's ability to manipulate the results of the analysis is greatly diminished. These are not the kind of lawyers that are on a quest for the truth.

A similar, slightly more restrictive, decision was handed down awhile back in Atlantic v. Andersen in Oregon, but the RIAA fought it, kicking and screaming. The judge wound up letting the RIAA have the hard drive. They found nothing, but still haven't turned in their report and still haven't dropped the case either. Most likely they'll claim that Ms. Andersen, a disabled, impoverished woman who never even used file sharing in her life, switched the hard drives on them, as they're now claiming with Marie Lindor, a home health aide who has never even used a computer.

Re:woo, guess a few judges have read the law

[QuantumFTL]

about time RIAA is held to the law.

When you represent enough wealth/power, the you hold the law, not the other way around.

Re:woo, guess a few judges have read the law

[FST]

In Soviet Russia... nevermind. Too easy.

Re:woo, guess a few judges have read the law

[thePowerOfGrayskull]

Yes, but the RIAA says this is the very first time this has happened to them. So I wouldn't diminish its significance. I predict that this decision will be the gold standard for future hard drive analyses in the RIAA v. Consumer litigations, and that the RIAA is not at all happy with it, since the RIAA's ability to manipulate the results of the analysis is greatly diminished. These are not the kind of lawyers that are on a quest for the truth.

Isn't waht your implying enough to get the lawyers in question disbarred or at the very least censured? Do you really think that they've been willing to take that kind of risk on a regular basis?

Re:woo, guess a few judges have read the law

[mabhatter654]

lawyers get paid to argue their point by any means necessary within a hair's-breath of breaking the law. It's tolerated in court because the other side also has a lawyer doing the same thing... so we let them all be petty and cruel and live with it.. you never know when the other side is honest, or just a pathological lier.

Re:woo, guess a few judges have read the law

[NewYorkCountryLawyer]

I do believe that they have had communications with the hard drive experts which they have never disclosed to their adversaries, which they were required to disclose. They have an erroneous conception of (a) what communications with their experts are "privileged" and (b) what it means for a communication to be privileged. They think anything they're afraid of getting out there is privileged; the law doesn't agree with that. They think that if they think something is privileged it doesn't have to be mentioned at all; the law is that even if you think a communication is privileged, you are supposed to disclose its existence in a privilege log, and let your adversary know about it, and let the Court decide if it's privileged or not.

In UMG v. Lindor, they were supposed to disclose all documents concerning MediaSentry's investigation. They turned over some printouts MediaSentry had made, and a privilege log falsely claiming privilege for three engagement agreements between the RIAA and MediaSentry. They never turned over a single memo, email, invoice, letter, or any other form of communication between MediaSentry and the RIAA or its counsel. Do you really believe that there was no such communication? I don't.

I have seen a great deal of sharp practice and frivolous conduct by the RIAA's lawyers, and I do expect it to start catching up with them, now that a handful of litigants are starting to push back.

Re:woo, guess a few judges have read the law

[mabhatter654]

I could see some big money here being a "movie and music inspector" as well as a little precedent that could make the cases less destructive. This third party could make the court's job easier by allowing quicker access to the drive under more balanced conditions.. with an impartial third-party judges would accept the evidence more readily, and investigation would be more consistent for plaintiffs because this company would develop standards of inspection the court would sign-off on, the RIAA would be cut short asking for "everything" buy the court looking to expedite things.

Downside is that if you've got Kazza or other stuff installed and sharing you're nailed... but the third-party could probably mirror your drive and get you back running sooner rather than taking your whole kit every time.

Re:woo, guess a few judges have read the law

[UnknowingFool]

Yes, but the RIAA says this is the very first time this has happened to them. So I wouldn't diminish its significance.

Then the RIAA is very good at playing stupid or lying. In one of the cases that Sony cited Arista vs Tschichart, Sony says the defendant "accepted" their motion to inspect the hard drive when in reality the defense filed at least two objections to the motion. It's not a bold lie, but it comes close to the SCO misrepresentations that we have seen recently.

Re:woo, guess a few judges have read the law

[NewYorkCountryLawyer]

They claim it's the first time a judge didn't let them have their way on this issue.

Re:woo, guess a few judges have read the law

[cptgrudge]

Downside is that if you've got Kazza or other stuff installed and sharing you're nailed...

So go off of public P2P altogether and get on I2P, TOR, or some other anonymous network. Sure, it's slower, but it will probably be too costly from a computing standpoint for the a given adversarial organization to nail you. The more they harass people, the more people will be driven underground to these "anonymous" networks. As of right now, it isn't illegal (in most places) to participate in one of these networks and hopefully it'll stay that way. The recent action on the TOR network in Germany (admittedly by mistake) shows that some nodes may get taken, though.

So, if you absolutely need that new episode of Lost, encrypt your "gray area" data appropriately with Truecrypt (or whatever software will give you plausible deniability) and get on an anonymous network. These anonymous networks are already being used for reasons that are much more important, but the more people that use them, the better off we'll all be. Personally, I recommend I2P.

Re:woo, guess a few judges have read the law

[Short Circuit]

I manage a student-run pc clinic. Earlier this year, we had a woman call us who wanted some forensic analysis of her hard drive done. The chief of our campus police was queried, and we were told in no uncertain terms that we were not to attempt forensic work, as the moment we touched the drive, any information on it would be unusable in court.

Of course, I wanted to know more, so I found out a few things about computer forensics as it applies to hard drives. First, every single step taken with the drive has to be documented, for review and potential dispute by experts hired by whoever would want to dispute the results. Second, merely mounting the hard disk may write data to it, making it useless as evidence. And there are other issues.

If the RIAA is being allowed to present their own analysis of the hard drive in the first place, they're being held to a very high standard when it comes to documenting not only the evidence they uncover, but what tools and procedures were used, who performed them, even who was in possession of the drive before it reached the lab.

If they're providing their own forensic evidence, that evidence can be put under very close scrutiny by any lawyer with the sense (and funds) to bring in an independent expert. And if even one of the defendants has an expensive enough lawyer who pulls in an expert who finds fault with the work of the RIAA's expert, RIAA's expert's work will come under fire in all of the cases.

In short, I expect the RIAA to behave itself. They won't fudge or falsify evidence; the stakes (the outcome of virtually every one of their civil infringement cases) are too damn high.

Re:woo, guess a few judges have read the law

[NewYorkCountryLawyer]

1. It's a lot of money you're talking about. Where are disabled people, home health aides, nursing students, college students, and all sorts of working people supposed to come up with the kind of money it woould require to litigate the issues you're talking about? In the real world a lovely scientific counterexploration of the type you're referring to would be a tragedy and a disaster for the defendant. The Arellanes order, on the other hand, keeps the costs down, and puts the onus of the costs on the RIAA, where it belongs.

2. Lawyers are held to high standards, too, but I haven't seen the RIAA lawyers living up to them. They've forgotten that someday their client will dump them just as it dumped Shook Hardy & Bacon, and they will have to rejoin the legal community and be judged by their peers for what they have done.

Re:woo, guess a few judges have read the law

[Short Circuit]

I realize it's a lot of money. However, with the sheer number of lawsuits the RIAA has filed, someone has to be able to afford it. If the hired expert's results show the RIAA's expert lied, it's game over for the latter expert and any case his evidence is in.

Re:woo, guess a few judges have read the law

[NewYorkCountryLawyer]

You're not being realistic. Even a millionaire doesn't want to spend $150,000 on a $4,000 case.

Re:woo, guess a few judges have read the law

[thePowerOfGrayskull]

That's a bit disturbing to hear. Hopefully this latest development is a sign of things to come.

Re:woo, guess a few judges have read the law

[Rixel]

I still think the judgement is slightly flawed.

I think the court should be the entity billing for the procedure, then in turn bill the party responsible. This should remove any potential threats resulting from Company X pissing off Sony with a result they don't care for.

Re:woo, guess a few judges have read the law

[mabhatter654]

again, if it gets to the point they have your name and are requesting your hard drive you're kinda screwed. After all, if the court finds too much encrypted data they can compel you to produce the password , face jail for contempt of court, or enter a default judgment for trying to hide evidence... You just look more guilty!

Re:woo, guess a few judges have read the law

[cptgrudge]

Plausible Denability. With Truecrypt, you can make a hidden volume within a "fake" one on the outside. You provide the "fake" key to the outer volume. At the same time, you keep the real key for the hidden volume to yourself, and never write it down. Using the real key instead of the fake one obviously opens up the real data, but the fake key opens a volume the same apparent size, but with some other data you have put there like financial info or other sensitive stuff. There is no such thing as "too much" encrypted data, because with Truecrypt, the entire volume appears as random noise by design. The only way to tell what is really on the volume is with the real key, or successfully cracking it, which with something like a 20 character key really won't happen.

The biggest threat is probably from ignorant people involved saying, "Well, why are you doing this stuff with encryption if you have nothing to hide?", showing zero real evidence, and ending up just assuming you are guilty, rather than actually judging facts. If an ignorant judge tries to award a default judgment, I'll take my chances with a jury. I'm not advocating massive copyright infringement by any means, only that there's no reason you cannot shield yourself.

Re:woo, guess a few judges have read the law

[KDR_11k]

Generally they never try cracking, they ask you for the password. Of course the password is evidence so you're required to produce it if they can show there's something encrypted in there.

Re:woo, guess a few judges have read the law

[cptgrudge]

Uh...so you supply the hidden volume password when they ask, or even volunteer it in the interest of expediency. There's no way for someone to tell the difference.

Re:woo, guess a few judges have read the law

[mabhatter654]

but if they DO figure it out, YOUR Screwed! you go to JAIL for contempt of court trying to spare yourself a few thousand dollars of RIAA punishment. While you're in jail for contempt, they have the civil case without you! and enter an even bigger default judgment!

Re:woo, guess a few judges have read the law

[cptgrudge]

but if they DO figure it out, YOUR Screwed!

If YOU'RE too stupid to properly use encryption to keep yourself from being nailed by one of these fishing expeditions, then you probably shouldn't be downloading music off P2P.

To repeat, the only way they can "figure it out" is one of two ways:

1. You give them the real encryption key, or otherwise let them know you have a hidden volume for which they can demand the real one.

2. The RIAA's designated agent successfully cracks your encryption. With proper encryption, this will take them far longer than they are possibly able to commit. On the order of at least decades, at most beyond the estimated age of universe.

In short, if "they" figure it out, it is YOU that have fucked up.

Defendant's terms

[Firehed]

"Okay, you guys can have the music back. Just let me keep the pr0n!"

Money can't buy love...

[MachDelta]

1) Buy/Pay-off "neutral expert"
2) Resume "business" as normal
3) ???
4) Profit!

Re:Money can't buy love...

[ClickOnThis]

1) Buy/Pay-off "neutral expert"
2) Resume "business" as normal
3) ???
4) Profit!

5) Money trail is uncovered by journalist/FBI/whatever
6) ???
7) Prison!

Re:Money can't buy love...

[42Penguins]

7) Prison! You must be new here...

Re:Money can't buy love...

[Firehed]

That's money buying "love" if I've ever heard of it.

Re:Money can't buy love...

[Kamineko]

You never know, the RIAA might roll a double 6 and get the FBI/Journalist on their side by Some Nefarious Means.

Re:Money can't buy love...

[TheRaven64]

I don't know about the USA, but in the UK things get interesting when one side calls an expert witness. If the BPI (the British version of the RIAA) call an expert witness who backs up their case then there is an assumption that the witness is biased, and the defendant is allowed to bring in their own expert. Ideally, both experts will agree on the evidence and it's then up to the court to interpret the evidence. If, however, the defendant doesn't bring their own expert then very little, if any, weight is given to the prosecution's expert.

Re:Money can't buy love...

[Travoltus]

1) Buy/Pay-off "neutral expert"
2) Resume "business" as normal
3) ???
4) Profit!

5) Money trail is uncovered by journalist/FBI/whatever
6) ???
7) Prison!

8) Appeal case to the Supreme Court.
9) Judge Alito is sworn to the bench ahead of time.
10) ???
11) Conviction overturned!

Re:Money can't buy love...

[Anonymous Coward]

8) Corporation big wigs sell a middle manager down the river
9) Business as usual
10) Rinse Repeat.

Re:Money can't buy love...

[Mortirer]

"7) Prison!" You can get tons of lovin if you drop the soap.

Re:Money can't buy love...

[Geminii]

8) Buy/pay off government 9) FBI is told to drop case / journalist is 'disappeared' 10) Business as usual

Precedent - Probable Cause?

[SonicSpike]

So, does this shift things back to a higher level of probable cause now? Or is that even relevant in a civil case such as this?

Re:Precedent - Probable Cause?

[ari_j]

No, probable cause is not relevant in a civil case. However, this does strike the balance that the Federal Rules of Civil Procedure are supposed to provide between a plaintiff's ability to use discovery procedures to get access to the evidence he needs to prove his case and the defendant's interest in keeping his private information private. This is a very common-sense decision that probably has no real precedential value (because it's what most lawyers agree on anyhow), and it's good to see a judge using the rules and common sense to tell the RIAA that it is just like any other plaintiff in any other case, and just because it can bully Congress around doesn't mean that it can ignore the civil procedure rules and bully a court or civil defendant around.

If this were a criminal matter, then things would be different.

Re:Precedent - Probable Cause?

[rHBa]

IANAL so I'm probably missing something but...

Isn't there a good chance that the defendant will have removed any offending files from their hard disk by the time it gets looked at by the RIAA or the independant specialist? The general public (here in the UK anyway) are much more aware of how to securely erase data on a hard disk due to news items about identity theft from old discarded hard disks. Even if the defendant doesn't know about/how to secure erase stuff you'd have thought someone they know might have sugested it.

Re:Precedent - Probable Cause?

[honkycat]

IANAL either and I haven't really read the details here, but I would imagine that the court has instructed the defendant not to tamper with the data. If there's evidence that it's been recently wiped, that'd probably get them in more trouble with the court than they risk with the RIAA.

Re:Precedent - Probable Cause?

[mOdQuArK!]

You can get in _really_ big trouble with the court if the independent expert reports that you "scrubbed" your drive before turning it over to them. Same kind of reasoning where people get caught shredding documents or deleting emails AFTER the court has told them to hold onto that evidence. At the very least you'll get contempt-of-court punishments.

Re:Precedent - Probable Cause?

[ari_j]

Yep. There's more to securely erasing a file than erasing its contents. You have to completely erase evidence of its existence, including the hole that was left by its removal. A good computer forensics expert (and you can rest assured that the RIAA is hiring the best of the best in the private sector for this kind of thing) will be able to tell what you did.

Re:Precedent - Probable Cause?

[rHBa]

I guess it's hard to fool the experts but there's plenty of them reading this so would any of these work: 1. Give them the hard disk from another computer instead. If they ask for the whole box just give them your mums computer. 2. a.Delete offending files, b.scrub unused parts of the disk using a portable scrubbing app (so there is no trace of the app being installed), c.copy loads of files onto the blank part of the disk and delete them again, d.repeat step c as often as you can, e.defrag the disk to move stuff around a bit.

Re:Precedent - Probable Cause?

[Anonymous Coward]

>A good computer forensics expert (and you can rest assured that the RIAA is hiring
>the best of the best in the private sector for this kind of thing) will be able to tell what you did.

Not if you do it right.

Re:Precedent - Probable Cause?

[mOdQuArK!]

1. Most people don't have multiple computers that belong to themselves
    (and the expert is going to question why the computer that you were
    supposedly using seems to be set up for your mom or grandma, and
    all the email is addressed to them, etc).

    It's quite the PITA to set up a decoy computer which looks like it
    has been used by a real person (as anybody who's tried to run a
    honeypot is probably aware).

2a-e Better, but an expert will probably be able to point out the pattern
      of repeated copies & erases as evidence that you were trying to cover
      something up. And given the size of hard drives nowadays, you'd need
      a humongous amount of data to properly overwrite everything in a way
      that doesn't seem suspicious (and that amount of data is usually
      associated with the copyrighted music/videos that you are trying
      to hide :-)

IANAL, but actively committing perjury & destruction of evidence
to try and cover up a potential crime is probably going to hurt you
a LOT worse in the eyes of the judge & jury than any punishment you
might receive from the original case (although the way the
Congresspuppets seem intent on making the punishments for IP
violations so wildly out of proportion, that might not be true
anymore...).

Re:Precedent - Probable Cause?

[TheRaven64]

And given the size of hard drives nowadays, you'd need a humongous amount of data to properly overwrite everything in a way that doesn't seem suspicious

DV footage is still big; about 10GB per hour. If you dump a few home video tapes onto your disk you can quickly overwrite a lot of evidence, especially if you then play with it in a non-destructive editor.

Re:Precedent - Probable Cause?

[rHBa]

Right, that's decided it then, I'll keep using the neighbours wirless ;-)

Re:Precedent - Probable Cause?

[Lord Apathy]

That is why when they request a "mirror" of the harddrive you give them a "mirror." You go out an buy a new harddrive that matchs the one that you are going to have to cough up. After you clean off the master, then you copy each file over with the copy command. Make sure you use the archive option so it copies the correct file date and permissions.

There, they have thier mirror that they requested. There are no "holes" in the file table because there where never any incriminating files on the drive to start with. Just to make things interesting write a script that will copy and delete random files. Get the fucker good and fragmented, then defrag the son of a bitch. If you got some real balls then encrypt the fucker, use the windows encryption shit. Its weak enough to be cracked but strong enough to be annoying.

If you are really brave use strong encryption and use the password "go fuck yourself." When they order you to cough over the password you can give it to them and tell them what to do with it.

Re:Precedent - Probable Cause?

[v1]

Tampering with or destroying evidence can get you more penalties than facing the evidence in court. They make penalties for this hurt really bad so you are either very motivated to not destroy it, or if you do, you are going to get a good spanking from that since they can't prove what you really did anymore.

Re:Precedent - Probable Cause?

[Lord Apathy]

Make the fuckers prove it.

Re:Precedent - Probable Cause?

[v1]

With the logs that most computers keep, it just takes a skilled technician to find out what was there. They may not be able to salvage it, but it's not too difficult to show you deleted something. And at that point, once they have proven that you tampered with the evidence while under investigation, though they are not legally entitled to take this as surrendering your innocence, in practice it works this way.

There have been examples of people being framed for something, (poorly) and in fear of it sticking, they attempt to destroy the forged evidence. They leave behind just enough evidence of the elleged wrongdoing that the forensics people can tell there was evidence of wrongdoing but they cannot fully reconstruct it. Had they been able to examine the evidence intact, it would be easy to tell it was forged. But now, all they know is something that appeared incriminating was there and is gone now, and due to the tampering you did they can't really tell how genuine the original information was.

That makes you look all the more guilty. So, tampering with evidence can work heavily against you even if you are innocent.

Re:Precedent - Probable Cause?

[NewYorkCountryLawyer]

A dilemma for RIAA victims: most of them can't shut off the 'sharing' without deleting the software altogether. The software is designed to make it impossible or next to impossible to turn off the sharing function.

Re:Precedent - Probable Cause?

[Lord Apathy]

/me stops giving a ratts ass because it stopped being amusing....

Mutually

[nrgy]

acceptable provision #1. Parties are here by allowed to browse all folders and sub folders contained on this harddisk so long as staying clear of the "PRIVATE DOCUMENTS" folder labled "MY MUSIC". This folder contains grandma grams secret double chocolate chip recipe.

All this means...

[posterlogo]

...is that you pr0n collection is potentially safe from scrutiny. Can you just imagine if those RIAA people could tell the media how music pirating and pornaholics go hand in hand?

Re:All this means...

[beavt8r]

Haha...."hand in hand"

Anyway, I do hope this is a step in the right direction as far as getting the RIAA out of the situation they have been in. It seems in the past when the judicial system sees a case by the RIAA it's "ooh, hands off they must be right" in a sense. At least from my lil' ol' perspective.

Re:All this means...

[Esion Modnar]

...pornaholics go hand in hand?

Usually there's something else in hand. Reminds me, I'm out of hand lotion.

Re:All this means...

[QuantumFTL]

Can you just imagine if those RIAA people could tell the media how music pirating and pornaholics go hand in hand?

Why you think the net was born?

Re:All this means...

[risk one]

I think you're forgetting that a computer expert will be examining the hard disk. There'll be plenty of scrutinizing going on with that porn collection.

Re:All this means...

[Dunbal]

music pirating and pornaholics go hand in hand?

      Surely you mean hand in... uhh, nevermind.

Re:All this means...

[Lord Kano]

Then the porn industry will form the PIAA and start suing people for ripping off their big shrimps.

LK

An Easy Win Here Would Be...

[punxking]

As a a mutually agreeable, neutral computer forensics expert, my only acceptable choice is CowboyNeal.

My suggestion...

[chill]

An open-source program along the lines of "file" that can identify file types. It can scan the drive and output and matches to music files. Those are the only files they get access to at all. No documents, pictures, movies, programs or anything else.

Re:My suggestion...

[bdigit]

Or how bout the RIAA provides an MD5 or SHA1 hash of the file in question believed to be downloaded by the defendant. The run a scan on the files and look for a matching hash. Of course if they guy made the slightest of changes to the id3 tag it would come back with no files found.

Re:My suggestion...

[Anonymous Coward]

That's why you would use something like TTH, not MD5 or SHA1.

Re:My suggestion...

[arth1]

An open-source program along the lines of "file" that can identify file types. It can scan the drive and output and matches to music files. Those are the only files they get access to at all. No documents, pictures, movies, programs or anything else.

Last I checked, "file" could not identify music files. That it can identify an MP3, like the one I taped from last Tuesday's business meeting, doesn't mean that RIAA should get access to it.

Regards,
--
*Art

Re:My suggestion...

[LiquidCoooled]

Unfortunately, it doesn't cover the application logs per the specific violation, CD burning logs to see if those files have been copied to CD, movie maker application log to see if you sang along to it, your internet logs to see if you posted it to your blog or youtube, your complete email log to see if you mailed it (or its lyrics) to anyone, a telnet log, your IM conversation logs and also your full paint.exe destination folder image files incase you took a screenshot of it in action and saved it.

Re:My suggestion...

[pilgrim23]

Reasonable...Now, is this going to report every mp3 or other format music file inculding all my transcribed 1890s Edison wax cylinder recordings? I may be wrong but I do believe these might be past their copyright due date...
Does this process look for some "digital signature" for "their music" vs "My Music"? if so, may I please see this signature?

  Does it differentiate any of the legal backup rips of my CDs from "their music" and flag which is not or which is "pirate"? If there is such a way of telling the difference, please reveal same to the independent so he can place this information online in a objective and impartial forum..like well here would do. Peer review woudl be the ONLY way to determine objectivly if this is a good aproach, oh and post the music too so we can see the process in action...

If not, then this is yet another lawyer fishing expedition and there ain't nothing can be done when Weasels in Suits smell cash....

Re:My suggestion...

[Anonymous Coward]

how would they be able to prove that you downloaded these songs? couldn't they just be legit mp3s ripped from cds?

Re:My suggestion...

[chill]

No, that would be step #2.

Step #1 would require a court order to begin with. After they get the list of audio files, you then identify them: your own recordings, legal rips, out of copyright, etc. The point was they didn't have rights to access the entire drive, but had a court finding to look for certain -- infringing -- files. This weeds out 90% of the chaff up front.

The /. crowd seems to love the "all or nothing" approach -- if they can't identify the exact files, including MD5 hash of the exact download, the RIAA has no right at all. That isn't the way it works in regular law, so why should music be any different? If they can show probable cause and enough "evidence" to convince a judge for a search warrant, then there needs to be a method -- however imperfect -- for dealing with the process.

Re:My suggestion...

[cpt kangarooski]

The way that this sort of thing tends to work is that a basic search is run, and then humans go through all of the positive matches, trimming that down to just what is relevant in the specific case. A couple of rounds of human level review are normal, since you start off erring on the side of inclusiveness, but you do want to get rid of non-relevant matches in each round, and you get more precise as to what matches and what doesn't as you go through. Digital signatures will only be used in the first round, most likely. After that, human beings will actually listen to the music, identify the songs, etc.

Since one of the prima facie elements for the suit is that the plaintiff can show that he is the copyright holder, public domain works will ultimately not be counted.

Does it differentiate any of the legal backup rips of my CDs from "their music" and flag which is not or which is "pirate"?

No, nor should it. If you rip a CD, you are prima facie infringing and it is perfectly fine for the copyright holder to sue you for it, whether you own the CD or not. In order to win, you, the defendant, would have to make a successful defense of fair use. That is, it is your obligation to prove that each of those rips was fair under the circumstances it was made. You're likely to succeed, so the plaintiff will probably make it a point, during discovery, to ignore copies you ripped from CDs you owned at the time of the rip. But there's no such thing as an automatic right to rip your CDs to a computer hard drive.

Re:My suggestion...

[chill]

No, the judge's order gives them rights to access it. That part was already established, they were just arguing about HOW to get access.

I'm talking about a way to help preserve some privacy for the defendant by using a neutral tool to filter out all obviously unrelated material -- the stuff not covered by the warrant.

"File" was an example. It could be modified and a "court approved" version could be put into escrow for use when authorized.

Re:My suggestion...

[Anonymous Coward]

how would they be able to prove that you downloaded these songs? couldn't they just be legit mp3s ripped from cds?

A - If you don't have the CDs in your possession (still) you don't have any right to the mp3s.
B - The odds of a hash match between two MP3s ripped by even the same drive are slim even with the same encoder version and settings. Rip with something like EAC in secure mode, and then the odds of a match (again assuming the same drive, or at least a drive with the same read offset) become much more reasonable, but you would still need to use the same version of the same encoder with the same settings, and not have used a program such as MP3gain (or other) which mucks with the actual MP3 frames.

Re:My suggestion...

[QuantumFTL]

An open-source program ... It can scan the drive and output and matches to music files. Those are the only files they get access to at all.

Well, I take it by "music files" you mean "sound files", which could conceivably be anything. I'm sure everyone's seen "interesting" sound files online... and what about audio journals and/or voice notes? I think assuming a sound file is music is pretty ridiculous.

Better, I think, would be a program that meaningfully hashes sound files to compare with a hash database (yes, this is possible if you do proper frequency analysis etc) of copyrighted songs, and *that* is what they get.

Bonus points if this program is open source and you can use it to rat on all the piracy at a company you've been asked to leave.

Re:My suggestion...

[arootbeer]

IIRC, The RIAA's lawsuits are generally based on the RIAA's hired snoops having found an infected file on the defendant's open share. If they can provide the hash for any of these files and those files are found, that should provide the evidence they need.

Presumably if the lawsuit is genuinely based on them having FOUND one of these files on the defendant's share, they will know which one(s) was found.

Re:My suggestion...

[TheRaven64]

A - If you don't have the CDs in your possession (still) you don't have any right to the mp3s.

Not quite true. If you have given away or sold the CD, then you don't have a right to the MP3s. If, however, you have lost it, then this is another issue. Some of my CDs are in my attic, some are in my parents' attics, basements, or may have been lost when they moved house. The RIAA would have to prove, in the balance of probability, that I never bought the corresponding CDs. Since I can easily produce CDs for well over 90% of my music collection (and probably the rest if I try hard enough) I would argue that this indicates that I buy music I listen to.

The odds of a hash match between two MP3s ripped by even the same drive are slim even with the same encoder version and settings.

This one depends on your jurisdiction. In Australia there is a precedent which shows that, since hashing functions like MD5 do not give unique results, they can't be used to uniquely identify a file. Of course, there is nothing stopping the RIAA from then subpoenaing copies of the files that had collisions and allowing the court to listen to them.

Re:My suggestion...

[dbcad7]

The thing is that mp3's can be made by anybody (with the proper software) and they can be named various variations of names, and can be made with various levels of sound quality, bitrate, etc.. A direct copy of an original digital file would of course be different. I personaly don't see how recording a mixed tape and giving it to a freind is any different than converting CD's to mp3's and sharing it with a freind. The fact that is is easier on the internet is I suppose the difference. If you made tapes and tried selling them, or you made CD's with mp3's and tried selling them then I could see a problem. I also see no problems with someone regularly scrubbing their hard drive of logs and files if they are paranoid, which is their right, just as it is their right to erase their browser history and cookies etc... sure it's suspicious, but prove wrong doing externaly then. Unless the computer is seized unexpectedly, I would think a removable second drive could be used to contain the files, and since the operating system is on the main drive how would they know that watever removable drive was submited with the main drive was or wasn't being used all along ?

Re:My suggestion...

[honkycat]

Also remember that possession of a copy of something, such as an MP3, is not evidence of any crime. The RIAA has to show that you either illegally made and distributed a copy or that you obtained your copy from an illegal source. The onus is on them to demonstrate this and you have no obligation to demonstrate why your copy is legal. At least, for now...

Re:My suggestion...

[cpt kangarooski]

The thing is that mp3's can be made by anybody (with the proper software) and they can be named various variations of names, and can be made with various levels of sound quality, bitrate, etc.. A direct copy of an original digital file would of course be different.

No, a lossless rip would be different, but most people don't do them. More commonly, people rip CDs, even their own CDs, to mp3s.

I personaly don't see how recording a mixed tape and giving it to a freind is any different than converting CD's to mp3's and sharing it with a freind.

One material difference is that one is on a cassette tape, and one is not. That matters a bit. But other than that, I'd say that there's no particular difference, and that unless you can make a good fair use argument (which is unlikely), it would be illegal to do either.

The fact that is is easier on the internet is I suppose the difference. If you made tapes and tried selling them, or you made CD's with mp3's and tried selling them then I could see a problem.

No, the Internet is not really a factor, unless the facts are different than what you started out with above. And yes, if you were making money at it, things would be even worse for you.

I also see no problems with someone regularly scrubbing their hard drive of logs and files if they are paranoid, which is their right, just as it is their right to erase their browser history and cookies etc... sure it's suspicious, but prove wrong doing externaly then.

A good solution is to have a data retention policy by which you destroy all records that are of a certain age automatically. That way it's not really suspicious, it's routine. Most businesses that bother to think about possible litigation will have such policies. Of course, if a court tells you to stop because something's come up, then you have to stop doing that. Simply not keeping logs and such is also viable.

Unless the computer is seized unexpectedly, I would think a removable second drive could be used to contain the files, and since the operating system is on the main drive how would they know that watever removable drive was submited with the main drive was or wasn't being used all along ?

That's why when you're doing discovery you just request everything you can get that you might want; the other side becomes obligated to hand it over. It's generally the police that seize stuff, but they'd just take everything. Your idea isn't all that original, you see, nor is it very useful.

Good to see...

[blue l0g1c]

With the constant erosion of privacy laws, this is indeed refreshing.

I'm looking forward to the rootkit jokes. :)

RIAA defence?

[whoever57]

Here is a thought:
Always buy used drives: never new.

Then, if one has to surrender a drive for discovery, point out that deleted files could have been created and deleted by the prior owner of the drive.

Re:RIAA defence?

[elysian1]

Except the fact that if you can recover a file, you can usually recover the date of creation/deletion of the file. So, unless you're going to lie about the date you purchased the hard drive, this may not help a whole lot.

Re:RIAA defence?

[whoever57]

if you can recover a file, you can usually recover the date of creation/deletion of the file.

Can the RIAA show that the previous owner had the date correctly set on his/her computer?

Re:RIAA defence?

[Umbral Blot]

Better solution: download to an external drive, then hide that drive (give to friend) when the RIAA comes knocking.

Re:RIAA defence?

[maeka]

Here is a thought:
Always buy used drives: never new.

Then, if one has to surrender a drive for discovery, point out that deleted files could have been created and deleted by the prior owner of the drive.

While that might get you off the hook in a criminal case, this is a civil case, where the burden of proof is substantially lower, I can't imagine such a defense working unless your lawyer has the jury in the palm of their hand already. I think the odds of finding the files as described by the RIAA on a computer located by IP address are slim enough that such a defense wouldn't fly even in a jury trial.

Re:RIAA defence?

[isnoop]

That won't fly when they can prove you owned the harddrive at the time the files were timestamped.

Suggested solution: Run your system's clock at some point before you acquired the drive.
For bonus points, run the clock at a time before DMCA was enacted. Instant grandfathering!

Re:RIAA defence?

[ClickOnThis]

Always buy used drives: never new.

Be careful when you buy used drives. You may not know how they have been (mis)handled before they got to you. Also, some sellers (such as those on eBay) can be surprisingly naive about the amount of packing protection that is needed to ship a drive safely.

Then, if one has to surrender a drive for discovery, point out that deleted files could have been created and deleted by the prior owner of the drive.

IANAL, but I wouldn't depend on that defense. I think you'd still be screwed if the names of the deleted files on your drive matched those in the logs of a server you accessed.

If you're still going to try this, you'd better be sure to back-date all of the relevant dates on the files before you delete them. I'm not sure, but I think these dates can be recovered on some file systems. Better still, use one of those programs that "shreds" the free space on your drive.

There's also the conundrum of buying a drive previously owned by an anonymous stranger in order to feel more "secure" from the **AA.

Re:RIAA defence?

[Pink Tinkletini]

To the standards required by a civil case? Yes, almost certainly. And probably also beyond a judge or jury's reasonable doubt.

Re:RIAA defence?

[Infernal Device]

Then, if one has to surrender a drive for discovery, point out that deleted files could have been created and deleted by the prior owner of the drive.

So, do you think that lying to the court is an acceptable defense, then?

Man, what a total lack of personal honor.

Re:RIAA defence?

[elysian1]

All of this will be circumstantial evidence. Can they show 100% that it was the user that downloaded/deleted a file? No, but they only need to show a preponderance of the evidence, which is, statistically speaking, 51%. Can they show 51%, yes, very likely.

Re:RIAA defence?

[ScentCone]

Man, what a total lack of personal honor.

Don't forget that you're in the middle of an entire thread that's focused on the art and science of being too cheap to pay an artist a buck for a song. So, yeah.

Re:RIAA defence?

[matrix0f8h]

Exactly. There is no spoon.

Re:RIAA defence?

[Dunbal]

do you think that lying to the court is an acceptable defense, then?

      Who says he's lying? The files _could_ have belonged to the previous owner too. Maybe he had the same taste... :P

Re:RIAA defence?

[westlake]

Here is a thought. Always buy used drives: never new. Then, if one has to surrender a drive for discovery, point out that deleted files could have been created and deleted by the prior owner of the drive.

Here is another thought:

Federal judges are not known for their humerous indulgence of the Geek. You make a game of the discovery process, you get caught in a lie, you are going to find yourself in a world of hurt.

Re:RIAA defence?

[Anonymous Coward]

For bonus points, run the clock at a time before DMCA was enacted. Instant grandfathering!

Umm, no. Copyright law existed well before the DMCA. The DMCA might apply if, say, you're cracking encryption to copy Shrek to your hard drive, so changing the timestamp to a time before the DMCA might help there. But you'll need a lot of luck to convince the judge that you copied a movie three years before it was released. Also, good luck explaining how the files on your drive have timestamps from several years before the drive was manufactured.

Re:RIAA defence?

[Anonymous Coward]

but your missing the point of many of the posts here that the RIAA deems itself above the law and is intitled to whatever it so chooses. Yes stealing music is stealing music but the defense of such don't justify the means to which some of these guys(**AA) are going to pursue scare tactics and deterrents. Bad application of a good law is not different imho than good application of a bad law. both are wrong and deserve to be fettered out as such

Re:RIAA Defence?

[MacWiz]

Don't forget that you're in the middle of an entire thread that's focused on the art and science of being too cheap to pay an artist a buck for a song.

If we could pay the artist a buck a song, that would be honorable. If we could pay the artist $5 for a CD, that would be even more honorable.

But I'm not going to pay a buck a song while the artist only gets 16 cents. I'm not going to buy another major label record until the RIAA stops suing people and makes a public apology for being such assholes. I'll support the artists I like by buying tickets to their show when and if they come to town.

Re:RIAA defence?

[kthejoker]

I'm sorry, but the RIAA has been found guilty of price fixing twice in civil court. A buck a song is outrageous given the low overhead of online hosting + the fact that iTunes is making large bundles of money off music produced 10, 20, 30, and even 50 years ago. To suggest somehow $1 is the appropriate value for these songs is ridiculous.

Put plainly, market forces have not been put into play in an effective manner, primarily due to ITMS' DRM restrictions and the popularity of the iPod.

Anyone with any sort of music habit - indeed, any one who is remotely interested in listening to any music at all that you can't find on the radio dial - shouldn't have to rack up $50 *a month* to buy DefectiveByDesign, limited, controlled digital files.

Frankly put, $1 for 3 minutes of pop bliss isn't worth it. I would gladly - gladly - pay 15 cents for a permanent copy of, say, Duran Duran's Girls on Film. Maybe even 25 cents. That's tops, though. Without market forces (ie basic supply and demand curves), the RIAA is simply stagnating. They're relying primary on a paradigm shift which has moved the demand curve inwards quite a bit, but structurally they're treading water, and artists are getting turned off by that in a big way.

Re:RIAA Defence?

[Anonymous Coward]

I'll support the artists I like by buying tickets to their show when and if they come to town.

At best, you'll only be helping them defray by a few cents what they owe the label after their advance. The amount to be defrayed will somehow include costs for a label exec's rent on a penthouse for his cat while travelling and the price of the last fifty whores he screwed, then stiffed.

Re:RIAA defence?

[evilviper]

you're in the middle of an entire thread that's focused on the art and science of being too cheap to pay an artist a buck for a song.

Point me to a site where I can download a reasonbly high-quality, DRM-free song from popular artists for $1.

Re:RIAA Defence?

[deesine]

I'll support the artists I like by buying tickets to their show when and if they come to town.

Someone who haggles over $0.84 is going to buy a $50 ticket? Yea, sure you are.

Money from every product sold gets divided up: some goes to pay for materials, some for labor, some for transportation, etc. So what other products do you feel have an inequitable breakdown? Do you find a way to get those for free too, and then pay the people you feel deserve it the most, whatever amount you feel is equitable?

Funny, you seem to be protesting the song breakdown and RIAA tactics more than the artists themselves: you're breaking the law. And the end result is they don't even get that 16 cents. Well, unless you follow through on your promise to pay later in whatever way you've found is equitable. I guess all those artists whose song's you've downloaded for free now have to trust that you'll eventually pay. MacWiz economics: pay whatever amount you want, and take your sweet time doing it. Brilliant, why didn't anybody think of this before!!!

Re:RIAA Defence?

[ScentCone]

If we could pay the artist a buck a song, that would be honorable. If we could pay the artist $5 for a CD, that would be even more honorable.

Why would that be honorable? It's not what the artist, whom you seem to say you respect, has asked. The person who you want to entertain you has made the business decision to let a publisher handle the mountains of tasks unrelated to actually creating music on their behalf. Some artists do not seek out such deals, and some do. There are plenty of musicians who are happy to do business directly with you - why don't you limit your consumption of music to that created by artists that make business arrangements of which you approve? THAT would be honorable. Saying that you admire a musician and are willing to buy their music, but that you don't admire their business decisions and thus you're going rip them off to help them ... seems odd to express that sentiment and use the word "honorable" in the same sentance, don't you think?

Re:RIAA defence?

[NewYorkCountryLawyer]

I have a list of sources for non-RIAA music on my blog, which I call "Liberated Music"

Re:RIAA defence?

[Hatta]

Man, what a total lack of personal honor.

Because the RIAA is such an honorable institution.

Re:RIAA defence?

[Maxo-Texas]

Well,
We are dealing with people known for the last 50 years to be without honor so it kinda wears you down over time.
We are dealing with people who have bought laws that made formerly *legal* songs now illegal again to copy.
But mostly - yea, everyone all around lacks honor these days and are very pragmatic.
They can be very honorable to people they think are worthy of honor while completely lacking honor with people they feel don't merit such treatment.

And for the record- I think paying a buck a song is the height of stupidity. I'll encode a free, legal, and moral copy off my FM card or cable music station before I ever pay a buck a song.

There is no justifiable reason musicians or any creator of art or athelete should be making more than a few hundred grand per year. It reflects something is broken currently in our society.

Re:RIAA Defence?

[MacWiz]

Saying that you admire a musician and are willing to buy their music, but that you don't admire their business decisions and thus you're going rip them off to help them ...

That's not what I said at all. In fact, it is so not what I said that now I have to go deeper.

First of all, I've met too many rock stars to "admire" any of them. "Appreciate" or "find entertaining", maybe.

I'm not willing to buy any music of any artist that is signed to a major label. However, if I find them entertaining, I may purchase tickets to a concert to see them perform. With the current price of concert tickets, more money goes directly to the artist than if I had bought several copies of their current CD. The record label gets nothing.

I limit my purchases of music to artists which are not signed to the RIAA member labels. I'm not going to pay a buck a song at iTunes when I know the artist gets 16 cents to divide between a four- or five-piece band.

I believe if an artist doesn't want you to hear their music, those wishes should be respected. This keeps me off of p2p (not to mention the fact that I have a Mac, which has always pretty much kept me away) and I'll go so far as to change the station/channel whenever one of them appears on radio/TV.

As a result, I'm not hearing much of anything released on a major label since 2000. It's "illegal" music, doncha know? I'm not letting any of that stuff on my computer or into my ears.

I'm not ripping off anyone, but I'm ignoring a whole generation of music because it's what the artist has asked. I'm following the RIAA rules, to the letter. In fact, I've been preaching for several years that the best way to solve this entire file-sharing "problem" is to do exactly what the RIAA asks -- erase them from P2P and the Internet permanently.

It's the only honorable thing to do.

Re:RIAA Defence?

[MacWiz]

...you're breaking the law.

You are assuming an action which I have neither indicated nor engaged in, an assumption reached based on no evidence whatsoever, except for your misinterpretation of what I did say.

So what other products do you feel have an inequitable breakdown? Do you find a way to get those for free too...?

I try to avoid clothing manufactured in sweatshops, everything Microsoft creates, haven't been in a WalMart in three years, and the last CD I bought was Santana's "Supernatural". It's not about the breakdown of cost. It's not even about the price, although I did think $40 was a little too much to pay for lawn seats to see Roger Waters earlier this month (especially after it turned out that nothing even resembling Pink Floyd came with him).

It's about the fact that I don't want to finance things I don't believe in -- like suing children.

I don't even want their stuff for free. Don't use P2P, don't download RIAA music. Don't even listen to it. I encourage others to do the same. There's nothing illegal about that.

Re:RIAA defence?

[Lord Kano]

So, do you think that lying to the court is an acceptable defense, then?

There is a fine line between lying and creating doubt.

Let's take another look at what he said...

• Then, if one has to surrender a drive for discovery, point out that deleted files could have been created and deleted by the prior owner of the drive.

"Could have been" is not the same as "were". It's dishonest but it's not legally unethical.

LK

Re:RIAA defence?

[Infernal Device]

There is no justifiable reason musicians or any creator of art or athelete should be making more than a few hundred grand per year.

So why a few hundred grand? That's some arbitrary number you picked out of a hat. What you seem to be saying is that no matter how much ingenuity I display or creative talent, the most I'll ever be able to earn is some arbitrarily set amount, thereby devaluing anything I do over that amount.

Were I a great artist, I could earn my yearly 200K in one month and not produce anything for the rest of the year (which might not be so bad, really), but what happens to any income I make that exceeds my set amount? Does it get arbitrarily subsumed by the same committee to be redirected to causes or needs I don't necessarily agree with?

Say, for argument's sake, the money is redirected to schooling and let's say, for the sake of argument, I am a believer in zero-population growth. Or in not having kids, ever, for whatever reason. Somewhere in there lies a conflict of interest. My money, which I earned, and you took under some system of wealth re-distribution, is being used for a cause I do not support.

You can argue for limiting the earning capacity of any sector all you want, but I'm guessing that what you're really mad about is that you don't make as much as you feel you should, whether you deserve it or not, or that you believe we should live under some wealth-redistribution system, which has already been proven not to work (Soviet Union, anyone)?

Get over your sour grapes.

Re:RIAA Defence?

[Anonymous Coward]

I'll support the artists I like by buying tickets to their show when and if they come to town.

There's been an argument about this too. Remember that artists who sign publishing deals almost always sign for multiple albums (with no intention of doing all of them), and the publisher-- without fail --makes the performer exclusive to their label. Translation? They own the band.

This means that (1.) They go on tour when their label lets them, and more important (2.) the plublisher still collects a share of the profits on top of royalties for performing the music. That's right: Paying someone to play your own songs. Now, add that most big venues will only deal with the big 5.

I hope that wasn't too much of a buzzkill, but if you want real independant music, you're probably not going to pull it off of eMule.

this means nothing

[wired_LAIN]

So basically, the RIAA can have the information on the hard drive. All this ruling means is that the RIAA has to pay a little extra money. Its not like that will stop them from suing people...

Re:this means nothing

[blue l0g1c]

It coul mean the RIAA can have only the information relevant to their lawsuit.

I wonder if that means they have to basically play "Go Fish" now.

Sony: "Do you have any Christina Aguilera?"

Neutral guy: "Go Fish!"

Re:this means nothing

[Dunbal]

they have to basically play "Go Fish" now.

      Or play "Find the Fish" (Monty Python's The Meaning of Life)

      I wonder where that fish has gone.
      You did love it so, you looked after it like a son.
      And it went wherever I did go.
      Is it in the cupboard? (Yes)
      Wouldn't you like to know?
      It was a lovely little fish.
      And it went wherever I did go.
      Where can that fish be, it is a most illusive fish!
      And it went wherever I did go.
      Oooo Fishy fishy fishy fish.
      I fish, a fish a fish a fishy ooooh.
      Oooo Fishy fishy fishy fish
      That went wherever I did go.

      Probably the weirdest thing ever seen on film, by the way... :)

Only because it's costs them real money up front

[Alcimedes]

Up until now the RIAA has been living off of lawyers who are working off of retainers. Now that they'll have to shell out a grand or so to "inspect" someone's hard drive for stolen works it should get interesting. How eager will they be to charge 100 people if each one is going to run them $1,000 up front?

They don't need to use the courts...

[Anonymous Coward]

When a certain **AA which deals with movies sued me, they wanted access to my server and all of my computers. I gave in to the server bit, under supervision - I was innocent after all - but didn't let them touch my home machines (again, I am innocent and these requested searches were prior to going to court).

What they did instead was hack my HTTP daemon, FTP daemon or some Windows vunlerability on my one Windows machine (HTTP and FTP installs both admittedly being out of date), install some server scripts to download / edit / see my files, and eventually use those scripts to install a rootkit or trojan on the machine. If they hadn't done that last step, I may have never noticed. After looking at my web server's access logs, they were certainly poking around in places that they had no business being in. I mean, apart from poking around in the first place... but I don't think files with names like 'bank.txt' and the like are any of their business.

How do I know it was the **AA? The investigator they had who scp'd my entire /home and /var/log from my server under the guise of investigation had the same IP as in those access logs. I'm baffled at why he didn't even attempt to cloak it.

I don't see the RIAA stepping down with this court decision. If this guy primarily uses Windows, they can just do what was done to me. And if they don't find anything, they can surely plant it.

(posting AC becuase the lawsuit is still in the works) - captcha: sneakier

Re:They don't need to use the courts...

[artifex2004]

I hope you countersued. Sounds like they were contaminating evidence and also possibly stealing computer resources if they ran anything themselves. The last is probably a crime, not just a civil matter.

Re:They don't need to use the courts...

[Anonymous Coward]

Those are some very serious charges. If what you say is true, then you have direct evidence of illegal hacking activities by an agent of the **AA. Why don't you do something about it? Such evidence could be used in a RICO lawsuit for example.

Re:They don't need to use the courts...

[evanrandael]

The proper way to examine a hard disk for evidence of a crime is to image it to another hard drive without TOUCHING the data on the original hard disk. Once the original has been tampered with, it is arguable that any evidence found may have been falsified and is not admissible in court. Also, if they planted spy software on your machine, you can sue them for invasion of privacy. I am pretty sure there is a law somewhere that prohibits unsolicited internet traffic to a computer.

Usually, professionals will use a live cd or similar tool to image the hard disk to another without writing to the disk being imaged. since the live cd loads into RAM and not on the HDD, there is less chance that it will be tampered with accidentally before any data has been accessed. All searches of HDDs are done from an image of the disk and should never be done on the original. standard Sec+ stuff, its dissappointing that the **AA would not follow those guidelines. I guess they really do just hope for the ooc settlements.

If the **AA did what you said they did, they did not follow proper procedure. Then again, they don't seem to be contracting professionals in the field that would know what to do anyway.

Re:They don't need to use the courts...

[polyomninym]

Wouldn't what they did be considered Breaking and Entering? I know they had some permission, but would what they did be seen as a technicality in your favor?

Re:They don't need to use the courts...

[hxnwix]

I can hear the RIAA's defense now:

"IP addresses are not useful for determening identity!"
"Logs are easily falsifiable and can not be trusted under any circumstances!"

If what you say is true, dubious though it may be, I wish you the best of luck. May your pair of tassled loafers find their way into the nether reaches of the RIAA's rectum.

Re:They don't need to use the courts...

[Anonymous Coward]

...because the Feds wouldn't do CRAP about it if you dumped a complete case on their desk. Unless you can show a loss that amounts to a big chunk of change, forget it. I have years of experience dealing with their incompetence and it's utterly mind blowing to say the least. Something like this happens, you're on your own.

Re:They don't need to use the courts...

[teknosapien]

Wouldn't planting a worm/virus/Trojan/root kit basically be against the law? Isn't this along the lines of hacking? Last I checked people were in jail for this type of activity

Actual Rule

[ari_j]

I checked the court's order here and it looks like Rule 26(c) was invoked, oddly by the plaintiff RIAA. Apparently the defendant refused to produce her hard drive and the RIAA claimed that a mirror image of it was necessary, and that any privacy concerns could be dealt with under a Rule 26(c) protective order. Normally, a plaintiff makes a motion under Rule 26(c), so this looks a tad unusual to me but it works. The judge did not explicitly rely on Rule 26(c) in making his order, but everything about the order says it's a Rule 26(c) order.

Rule 26(c) provides that, when certain prerequisites are met, "the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... that the disclosure or discovery may be had only on specified terms and conditions ...; that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters; [or] that discovery be conducted with no one present except persons designated by the court[.]" See the text of Rule 26 for more.

Long story short - like I said, the court is just applying the rules and common sense. The RIAA is going to kick and scream about it, but there's nothing out of the ordinary about what just happened. :)

Re:Actual Rule

[rtb61]

There is still the difference between a request for documents and a hard disk drive. The RIAA still should be bound to define exactly what documents they are after and provide relevance, not the whole hard disk drive. The independent expert then should only provide those documents that fulfil those conditions as ordered by the courts.

Consider a family computer where data is stored and relates to more than one individual. When the civil case is against one individual, neither the civil court nor the RIAA has any right to access any data or software stored by another individual who uses that computer regardless of the content (it is a civil case after all). Then there is the privacy rights of minors and the court is bound the respect the rights of minors.

The RIAA wants a blank fishing expedition in order to force the dependent to pay out with out contesting in order to protect their own privacy and the privacy of their family and any other people that might have used the computer. There is also the distinction between commercial use and private use, the request for documents is in reality a commercial request and was not really intended to attack the privacy of individuals.

Surely the individual should be allowed to force the RIAA to substantiate their claims, by providing a complete set of logs of all traffic from the ISP for the full time period that provides a record of their claims (to consistently substantiate the data), as well as a complete record of the activities of the computers of the clearly biased investigators of the RIAA, to ensure that the data has not just been falsified (which obviously has been the case in the past in many very public cases).

Re:Actual Rule

[ari_j]

This is just discovery, not trial evidence. Discovery has a much broader scope than what is relevant and otherwise admissible. They don't know what's on the drive, and part of discovery is letting them discover what's on it. Also, the discovery form in use here is not "production of documents," it's "production of documents and things and entry upon land for inspection and other purposes." (FRCP 34.) The hard drive is a tangible thing ripe for inspection.

Re:Actual Rule

[rtb61]

Discovery under law, is still tied to documents, not hardware. All documents called must have relevance, and must relate to the case and the affected parties, it is not a blanket search (thats why indepedant parties are required to ensure that no documents not defined under the court order are accessed). You can not search other non afilliated parties documents, just because they happen to be there. The constitution still applies to civil courts, in fact doubly so.

Re:Actual Rule

[ari_j]

You lay out a number of independent claims here:

1. Discovery under law, is still tied to documents, not hardware.

No, it's not. Civil discovery applies to absolutely everything, starting with documents and continuing on to digging up every square inch of soil on your property.

2. All documents called must have relevance, and must relate to the case and the affected parties

All documents must pass the bar of admissibility to be admitted into evidence at trial. Discovery has a broader scope, and applies in particular to all things which can reasonably be expected to lead to admissible evidence. Guess what - a hard drive that allegedly contains pirated music can reasonably be expected to lead to admissible evidence; to wit, the pirated music.

3. indepedant parties are required to ensure that no documents not defined under the court order are accessed

The court order on its face requires an independent party analyze the drive, so this statement boils down to have no meaning whatsoever; but it's also mostly irrelevant to this side discussion.

4. You can not search other non afilliated parties documents, just because they happen to be there.

Sure, you can. You can search whatever is discoverable.

5. The constitution still applies to civil courts, in fact doubly so.

This is a fairly dubious claim. Do you have anything that backs up your belief that the Constitution applies "doubly" in civil matters? Furthermore, what part of the Constitution is implicated in the case of a hard drive being requested in civil discovery?

definition of expert:

[jtwronski]

If they ever try to nail me (not that they'd have a reason to), I'll make sure that my linux box is only examined by a well-trained MCSE with lots of experience with the ntfs and fat32 filesystems.

    In reality, I could always do a checksum of my partitions, and see what the checksum is when the drive gets back from the RIAA's expert evidence installer guy. I'd fear a real expert more that I'd fear the RIAA shill doing it.

Re:definition of expert:

[sofar]

someone mark this as funny please, it cracked me up for a minute! hahahahaha, a well-trained MSCE? ROFL!

Re:definition of expert:

[glwtta]

I think this is less about evidence installing and more about protecting your giraffe videos.

Re:definition of expert:

[Dunbal]

see what the checksum is when the drive gets back from the RIAA's expert evidence installer guy.

      Oh you think you get the drive back, do you?

Re:definition of expert:

[iNetRunner]

Funny.. Though a simple checksum wouldn't be very good. A simple log entry would through it off. A checksum per directory would be better. *If one was to nitpick about the details..*

Re:definition of expert:

[hoggoth]

> Funny.. Though a simple checksum wouldn't be very good. A simple log entry would through it off. A checksum per directory would be better. *If one was to nitpick about the details..*

A simple checksum is exactly what he needs. If a single entry in a log file has changed that means the drive was booted into or otherwise changed. It's no longer admissible in court.

They have to make a copy and work off the copy.
Even booting the drive renders it 'tainted'.

Re:definition of expert:

[JonathanR]

The first thing I'd do is to break off pin 23 from the IDE socket.

Re:definition of expert:

[iNetRunner]

Well, sure that would be proper. But checksums for all directories would reveal what was possibly changed.

Yay the legal system is working

[QuantumFTL]

Well, sort of...

Sounds like..

[Ten24]

Who does this really side with? The RIAA or the individual? Does it not give more concrete evidence against that individual if files are found by a 3rd party? You would think any files 'found' by the RIAA would not hold up well in court. What about files that were deleted long ago, how about used HDDs that have previous owners files on them? Sounds like the RIAA would have to request files from very specific dates and times to me.

Re:Sounds like..

[NewYorkCountryLawyer]

I think it doesn't side with either; it fairly balances the rights of both parties. But since the RIAA wants everything to be one-sided, and this is, instead, even-handed, I chalk it up as a win for the good guys.

Re:Sounds like..

[Anonymous Coward]

It greatly raises court expenses for the RIAA. They can no longer rely on a team of lawyer/stenograpers acting in the role of threatening letter factory and are at risk of winning each case on the merits of the evidence, just as the original notion of Justice intended.

Next time download mp3's via Proxy

[Yahma]

Anyone who browses warez or mp3 sites is just asking for an RIAA lawsuit. I don't understand why people are still being caught by the RIAA?? C'mon Folks, its been public knowledge that the RIAA has been tracking downloads for the last several years! Next time, save yourself some headache and use an Anonymous Proxy to browse for your mp3's?

Yahma

Re:Next time download mp3's via Proxy

[shmlco]

Now that's absolutely brilliant. The **AA is monitoring the web, so the solution is to trust a set of "anonymous" proxy servers run by some totally unknown group of people...

Did you think up that one all on your own, or did you have help?

Stipulations

[Debug0x2a]

Stipulation #1: They must listen to EVERY SONG IN ITS ENTIRETY to make sure its not a legal demo copy with that damned message at random points. Stipulation #2: They must preview EVERY MEDIA FILE (Including horse porn) IN ITS ENTIRETY to insure that there is no copyright infringement there such as music videos or demo images. Stipulation #3: They must reference EVERY SONG 'illegally obtained' with a list of music legally owned by all users, past and present, of the hard drive, including the manufacturers and the techies at Dell. Oh, and the company charges at least $120/hour for the service... hope they like to spend their money on guys watching horse porn.

Re:Stipulations

[cpt kangarooski]

A few points.

First, they don't have to review any file unless they want to, because the plaintiff gets to choose what it bases its case on. If they want to ignore a particular file then it only helps the defendant for them to do so. So your #2 is rather stupid. (Though from my own experiences, I would say that disguising a file adequately could work pretty easily unless the reviewer had some reason to look further, such as if disguised files became a commonly used tactic by infringers)

Second, for files they are initially interested in, I assure you, they really will review them in their entirety. I've had to do this sort of thing myself at times, and let me tell you, it is very boring. But it does brighten the day of the reviewers to come across evidence of illicit workplace romances, affairs, arguments, illegal activities (whether related to the case or not), etc. Regular ol' porn, not so interesting, actually. It's more fun to hear about things than to see them graphically. So don't worry about your #1.

Third, your #3 is again, rather stupid. If a file is found that the plaintiff is going to go to court with, the mere presence of the file is enough to go to the jury with. The defendant can argue that the file was put there by someone else. It is up to the jury to decide who they believe; that is their job. It's no different than if one side had a witness that said he saw the defendant do it, and another witness with the exact opposite story.

The reason why RIAA is complaining...

[Van Cutter Romney]

... is that they don't have any money left after paying their lawyers for all the lawsuits.

Re:Only because it's costs them real money up fron

[drinkypoo]

It won't. It will only cost them $1,000 if the person does not decide to just settle. They can still stick people with zillions of lawsuits, and just only take settlements, or court cases in which the defendant does not insist on the same treatment. Lots of people are probably happy to just hand it over :P

Re:Only because it's costs them real money up fron

[NewYorkCountryLawyer]

Now that this ruling has occurred, and has been made available publicly, most defendants who are represented by lawyers won't be handing anything over without a similar protective order.

What do you mean, specifically?

[coyote-san]

I disagree. The defendant can reasonably ask that the RIAA name, specifically, what music files the RIAA believes he has illegally downloaded. I think it's safe to assume that the RIAA would never agree to this, but that bounces it to the judge and any judge willing to hold the RIAA to the usual standards is probably unlikely to sign off on an unrestricted fishing expedition.

After all there's no harm to the RIAA in requiring it to demonstrate it has reasonable cause to proceed. If they say the defendant has 100 illegal files and the search only finds 70, that's still good enough to warrant an unrestricted search for all audio files on the disk. But if the search can't find any of those files then it's clear that the RIAA would just be on a fishing expedition and it would needlessly harm the defendant to proceed.

(ObDisclaimer: IANAL)

Re:What do you mean, specifically?

[timmarhy]

it's like the police being able to kick in your door and look for drugs because they smelt smoke.

Compare prices on Privacy Software

[rHBa]

Is the "Compare prices on Privacy Software" link included on every article with the riaa tag?

Next time download mp3's from usenet

[Anonymous Coward]

Anyone who thinks people still download illegal mp3s from web sites learned everything they know about file sharing from the 6 o'clock news (or the RIAA). I don't understand why people even bother googling "hotnewsong.mp3" before they hit torrentspy or IRC. C'mon folks, it's been several years since entering "mp3" in a search engine turned up anything but unscrupulous sites trying to boost their google rankings! Next time, try bittorrent or IRC or usenet to download music!

But what if....

[Nushio]

So a neutral party will search through the Hard Drive... Looking for pirated music... What if he finds other illegal information, such as Movies, Games, Software or even confidential information or pictures? Would those be submitted as well?

purge data

[Randall311]

Has this guy ever heard of purging data, zeroing the hard drive? How is it possible that after he got served to appear in court that this hard drive contains any useful information on it? If I was in his position those RIAA fuckers would have a hell of a hard time finding anything useful on my hard disk.

Re:purge data

[BionicPimp]

Unfortunatly someone tried this already and faced the swift hammer of justice...This is colloquially known as tampering with evidence, which i believe is a criminal offence. what you want to do is use TrueCrypt. You give them all your music in triple DES or AES encrypted format. What I think is pretty awesome is that they have fake out passwords that give the appearance of decrypting the volume, while actually hiding it!

Re:purge data

[Alchemar]

Someone tried that, the judge took it as an admission of guilt, and nailed them with everything the RIAA said they thought the guy had because there was no way to prove otherwise.

http://recordingindustryvspeople.blogspot.com/2006 /08/where-defendant-wiped-hard-drive-in.html

I think you would be better off encrypting the data, having a third party examine it, and get the mutually agreed conditions to be that they only look for music files and signs that music files have been deleted, as nothing else pertains to their case, and is an evasion of your privacy. If someone ask what that big encrypted file is, tell them you made a home movie with your girlfriend and swore a blood oath that you would never let anyone else see it, or you would have to cut off certain valued parts of your anatomy featured in said video. Maybe that would fall under some kind of stipulation about discovery not causing harm.

Re:purge data

[Todd Knarr]

Simple: once you've been served with a lawsuit, removing relevant data from the hard drive would be destruction of evidence and will earn you sanctions ranging from being cited for contempt of court up to having your actions held against you (eg. the judge rules that your removal of the files constitutes evidence that they were in fact copyright violations). This also applies before you're served if you know (or should reasonably know) you will be served. Basically, if you want to wipe out evidence you'd better do it before the RIAA contacts you.

How Are The Funds Dispersed, Once Won?

[CheeseburgerBrown]

When the Empire wins the LUCRETIVE CASH SETTLEMENTS from these actions, how do they disperse them to the artists?

Do they toss the money into a general bonus slush fund meated out in infinitessimal slicettes to each artist their various members represent? Like, does Michael Jackson get 0.0001 cents for every suit settled?

Or, conversely, do they pass the money on directly to the artists whose songs are found to have been shared? In this scenario they would audit a defendant's hard-drive, find lots of Madonna songs, and then give Madonna her share of the bounty.

If so, they should be making available these backdoor sales for the purposes of inclusion in music charts. Like the Pirate Top 10.

(I know, I know -- some folk'll cry foul and claim that that sort of thing would only encourage illegal filesharing 'cause the cool kids are doing it, but those people should take their beef up with Sweden, first.)

From this point of view the lawsuits could be seen as friendly, random audits to pay for shared songs. If the artists were compensated in direct relation to illicitly shared tracks found, it becomes a kind of sale. Totally legit -- like a kind of anti-lottery.

Then the government could tax it and we could all get on with our business.

On staff lawyers

[nurb432]

Cost the same if they are in court, or sitting twiddling their thumbs.

Burden of proof

[nurb432]

Remember that the burden of proof is much lower ( and pretty much reversed ) in a civil case.

you walk in with a empty drive, you are liable to appear guilty, AND you cant prove otherwise. You are also liable to get hit with a criminal charge of tampering if the judge is in a bad mood that day.

Okay...

[AVonGauss]

Okay, I am not a lawyer, can someone please answer me this; I read in the original and the amended filings that the RIAA is claiming that the defendant either received or distributed copyright works, but I have a few questions... 1) Which is it? Did she receive or distribute - isn't there a legal difference? 2) What is it? Maybe it's in the exhibit A mentioned in the claim that I didn't see in the PDF, but what is she accused of receiving or distributing? Yes, I know they want the hard drive so they can garner evidence, but there has to be some standard of suspicion with some level of evidence in order for the case to proceed, doesn't there? Shouldn't they have to spell it out - on this date and time we believe that this IP address was assigned to you and during that time frame you where in communication through TorrentWorld and downloaded the file entitled "MyFavoriteMusic.mp3" which we know to be a work of art that we currently hold copyright over. When do they actually have to provide the most basic of details like previously stated? Also, this is really more to the blogging sites like Slashdot and TechDirt that love to publish articles about the scummy RIAA tactics, which thank you BTW. Why are the artists getting a free ride through all of this? Sony is a publisher, but there is also an artist involved, why aren't we publishing their names as well so the public knows which artists either through inaction or direct involvement are also involved in the cases with scummy tactics?

Re:Okay...

[NewYorkCountryLawyer]

1. I commend you on reading the documents. That's impressive.

2. They accused her, in boilerplate, of downloading, distributing, and/or making available for distribution.

3. In fact all they had is a screenshot indicating that somebody using that dynamic IP address had a shared files folder, which the RIAA considers 'making available for distribution' or 'distributing'.

Re:Okay...

[AVonGauss]

Thank you for taking the time to reply, I am still confused, but I'm probably not the only one - at some point if I cry thief, it seems that I should have to state clearly what has been stolen or violated... Out of curiosity, was that a shared folder in the sense of a file sharing (like torrent) folder or a shared folder as in a Windows or SMB shared folder?

Re:Okay...

[Dunbal]

at some point if I cry thief, it seems that I should have to state clearly what has been stolen or violated...

      Why billions and billions of dollars, of course. Haven't you been paying attention? :)

Re:Okay...

[Zorque]

Actually, many artists these days think the suits are ridiculous. The only way they could be unassociated would be to drop their label, but then they'd be out of a job. And still the RIAA gets to keep the "right" to sue on their behalf. Nice, isn't it?

Re:Okay...

[NewYorkCountryLawyer]

AVonGauss wrote: "Thank you for taking the time to reply, I am still confused, but I'm probably not the only one - at some point if I cry thief, it seems that I should have to state clearly what has been stolen or violated... Out of curiosity, was that a shared folder in the sense of a file sharing (like torrent) folder or a shared folder as in a Windows or SMB shared folder?"

1. You're certainly not the only one that's confused. The reason I know that is that I'm confused, too. Were I a judge all these cases would have been bounced on day one. These guys have no evidence of anything when they start the case. And then if they can't find some evidence in their fishing expedition, they accuse the defendant of having hid the evidence. It's a joke.

2. All the cases I have seen are Kazaa, Limewire, Gnutella, or iMesh.... i.e. FastTrack clients.

Re:Okay...

[karlm]

2. All the cases I have seen are Kazaa, Limewire, Gnutella, or iMesh.... i.e. FastTrack clients.

Gnutella is a protocol. (The original Gnutella client, caled simply Gnutella, died out long ago and the protocol has evolved enough that Gnutella couldn't connect to the modern Gnutella network). Maybe you're thinking of Gtk Gnutella, which is a modern OSS Gnutella client. LimeWire supports the Gnutella and BitTorrent protocols, but not FastTrack. I'm not sure about which protocols are supported by iMesh.

Re:Okay...

[cthulhu11]

I have personally seen a case where the MPAA sent legal threats to someone who used bittorrent to obtain a TV show - one which, curiously enough, was put up for legit download a couple of years later.

Re:Okay...

[NewYorkCountryLawyer]

Thank you for the correction. I guess I don't know the difference. In any event, all the cases I've seen involve Kazaa, Gnutella, Limewire, iMesh, and/or FastTrack.

Re:Okay...

[NewYorkCountryLawyer]

We were referring to RIAA, not MPAA. MPAA investigates differently.

Re:Okay...

[cthulhu11]

oic. I personally will continue to buy used legit CD's and rip them, though.

Except...

[RareButSeriousSideEf]

There are probably references galore to those files' existence on your sys drive. Do you run a media player from your sys drive? Do you run a p2p app from your sys drive? If on MS Windows, do you browse to your media files using Windows Explorer? All of these activities will leave a history trail as evidence of a media file's existence.

It would actually be pretty difficult to run a system that used media files but accumulated no traces of them. Every app that touches media in any way would need to be run in portable mode, and those apps themselves would need to be launched in a way that didn't generate any MRU entries.

linux firewall question

[jt418-93]

so i had a though. say i have a linux firewall box that sees the world, all my windows boxes are safely behind it. if they request the computer attached to the ip, would that not be my linux box, with nothing but the firewall on it?

just a question

Re:linux firewall question

[mei_mei_mei]

I hope someone answers this who knows what they're talking about. Perhaps it would help if as well as the firewall the linux box had a coy of the same P2P app in queston, sharing nothing but public domain works. Presumably the linux box would be set not to record port allocations and other activity with other machines 'inside' its private network.

Re:linux firewall question

[Mavakoy]

Unlikely, otherwise anyone with an ADSL router would be safe.

They probably request 'all machines' connected to the IP address.

What I do

[ratboy666]

After erasing files, we want to destroy them -- at least make it very difficult and expensive to recover.

So what I do is run a cron job: dd if=/dev/random of=/WASTE; rm /WASTE

This is run until it errors, on a weekly basis. Generally, 90%+ of all clues as to data contents are going to be destroyed by this.

Going further, inodes can be easily destroyed as well: say by creating new filenames until the system fails, then erasing them.

Ratboy

Ok Smarty

[jgoemat]

How about you only download files and share files from a virtual machine that you have on an external hard drive?

Re:Ok Smarty

[RareButSeriousSideEf]

That'd be a start anyway; it would at least let you sandbox the forensic trail to some extent.

I'm trying to think of this from the angle of the forensic expert. If I were in that position & were being paid to uncover evidence of certain files/filetypes, I definitely wouldn't stop after a file search of a single PC that belonged to the defendant. In fact, the first thing I would do is ask the plaintiff's attorney to submit a discovery motion asking the defendant, under penalty of perjury, to enumerate all the computers, drives, routers, access points and storage devices in his/her possession.

Next I would probably search for several telltale things. These would include (among other things) the registry and all the configuration or ini files of all media-related software (p2p, playback, transcoding, tagging, library manager, etc.). Same for any terminal servers, terminal clients, or virtual machine managers I found. Then I'd look for any evidence of network share usage and drive mappings. Lastly, I'd look for encryption & wipe utilities.

All those bits of information would guide further investigation. What was accessed on those network shares? Where are the virtual machine images? What do I find when I try to mount & scan them? It's possible that all of this won't turn up the media files themselves, but if you lied to the court in response to the aforementioned discovery motion, these things are likely to expose that lie.

I'm not saying it's impossible to shield all evidence of what media files you possess; it's just a *lot* harder than it first appears.

So,

[jgoemat]

There's no reason to use military grade wiping? It used to be that forensic experts could use a more sensitive instrument than a hard drive read/write head to examine the platters and reconstruct data even after it had been written over. If you're just duplicating the drive and the RIAA never gets to see the original, there's no need for that. Heck, they can't even access data in bad sectors that your hard drive accounts for.

Re:So,

[evanrandael]

Thats the jist of what I understand to be standard practice in the security community for certain types of forensics with regards to computer crimes. Of coarse, evidence permitting, you can then gain further access to the actual hard drive, but not without finding probable cause. Traces of information wiping softwares, log files in hidden/system folders, etc.

The types of electronic searches you are referring to are more geared towards high risk crimes that would have some effect on a large scale, like national security. Not for looking for downloaded .mp3's. Those searches are extremely expensive and can take a VERY long time as the techniques used to run that low level of a disk scan are extremely thorough.

I don't think the **AA would spend that kind of money just to extort a very small fraction of it back after the fact. It just wouldn't happen. Leave those types of search and siezures to the government and the military for what they were intended for. Generic computer crimes such as hacking and stealing music or movies just wouldn't warrant it unless there was evidence that it was of a very large scale (duplication for profit) or other offenses (like child porn).

Has this been done before by a defendant?

[Anonymous Coward]

I keep reading about these file-sharing cases and the tactics with which the RIAA appears to be employing are outrageous. I'm sure this has already been stated before, but if one's hard drive were subpoenaed, one could theoretically hide the computer somewhere at a friend or relative's house, and when the RIAA comes, theoretically claim it is stolen..While I'm not advocating anything illegal, a determined individual theoretically could go so far as to file a false police report to document such an occurrence. Has this happened before in an RIAA case? If so, did it affect the ruling?

Music recorded off air?

[RKBA]

What if the music the court discovers was recorded from an off-air FM radio station or something like Shoutcast. Does that also constitute copyright infringement?

Re:Music recorded off air?

[Anonymous Coward]

What if the music the court discovers was recorded from an off-air FM radio station or something like Shoutcast. Does that also constitute copyright infringement?

No.

If someone proclaims the answer is yes then they better get started changing a lot of fees and regulations regarding internet radio, all of which has as its justification the inadvertent copying from streams. They can not have it both ways no matter how much they wish to.

They will most likely start talking about "digital" and "high quality" but as a parallel tivo is not unlawful even if you have hdtv (which has a far higher quality difference than the audio analog/digital stream comparison).

If the stream does not follow those laws and regulations or is not situated in the US they can take it up with the stream originator, you as a third party have nothing to do with it.

However I'm sure all this wont stop them trying at some point.

Confidentiality?

[Plutonite]

Can someone please explain how this works?

Are we talking about people refraining from telling others about his pr0n collection, or is it a deal not to look in certain places in his hard drive? Also, isn't this sort of civil behavior the default - i.e why do they have to legally agree on abstaining from defamation?

Privacy

[kahrytan]

Judge said no because of privacy concerns. The drive may contain data that RIAA should not have.

RIAA still has to remember that downloading mp3s and having mp3s on a hard drive is not illegal. RIAA needs to compare the mp3s on the drive to the cds the defendant owns and prove cds were bought after the date of download otherwise defendant did not commit a crime. Defendant has the right to listen to the music on their computer or mp3 device. And the defendant may not be smart enough to know how to rip good quality mp3s from a cd.

Leave it to /. to sensationalize . . .

[jhylkema]

The judge did NOT say that the Recording Industry Ass. of America cannot have the hard drive. In fact, he said the exact opposite: "Plaintiff's motion to compel is GRANTED." Put another way, the judge said the RIAA can have the hard drive. In fact, he ordered the defendant to give it up. He did so conditionally, i.e., review by third-party expert, etc., but to say "Court says RIAA can't have HDD" is completely inaccurate.

From seeing the average lawyer's technical skills and the average /.er's knowledge of the law, I'm quickly coming to the conclusion that the two are mutually exclusive.

Re:Leave it to /. to sensationalize . . .

[NewYorkCountryLawyer]

The judge is saying the RIAA can't have it, only a mutually agreeable neutral forensic expert can have it.

Mod parent up

[Anonymous Coward]

Finally a sensible comment about file sharing gets modded up on Slashdot.

Incorrect

[localroger]

Above, Ray Beckerman reveals that the MPAA rootkitted his machine when they were granted access and proceeded to use their backdoor to sniff around all kinds of unrelated stuff. This agreement prevents such shenanegans by denying the RIAA access to the defendant's physical hard drive or to any of the defendant's data that the neutral third party does not agree is pertinent to their case. RIAA are also on the hook for paying the neutral party for their services.

Obviously this doesn't help much if the defendant really is guilty and has a fresh copy of LimeWire and a ton of downloaded mp3's on the disk, but it's quite an improvement for those of us who are innocent, or who thought to put all that stuff on the external USB drive that's hidden in grandma's attic for the duration.

All your PC are belong to them

[localroger]

Seriously, the typical order asks for all the PC's at the residence. Of course if you're like me that would be about ten, including a couple of half-disassembled old Win3.1 and DOS boxes, and it would be very hard for them to prove that you didn't hold a particular one back. Especially if the particular drive where you put all your downloads is a USB external. Also, the ruling at hand would seem to cause them a problem because if they ask for all your PC's you could legitimately claim that the definite inconvenience to you is out of proportion to their alleged claim.

Evidence of Deletion

[localroger]

The problem is that they (reasonably, considering what they are trying to prove) don't just want your files; they want your file system so they can examine it for evidence that you once had files and deleted them. This requires examining the HD at the sector level.

Leaving us hanging ...

[Kaemaril]

From the article:

The chicanery and gamesmanship that is going on behind the scenes with the hard drive report in the UMG v. Lindor case, which my office is handling, demonstrates that it is not safe to permit the RIAA to conduct its own, behind the scenes hard drive analysis by its own so called expert.

Come on, don't leave us hanging. We want to hear more ... :)

Re:Leaving us hanging ...

[NewYorkCountryLawyer]

It's here.

Re:Leaving us hanging ...

[Kaemaril]

Huh. Well, that was kinda anticlimactic. I don't see a lawyer being a potential dick over timeframes as evidence of chicanery. I was hoping for something juicier, like - oh, I dunno, - hard drive serial numbers mysteriously changing or something :)

Re:Leaving us hanging ...

[NewYorkCountryLawyer]

I guess you're not good at reading between lines.

.. unless you sang something copyrighted..

[Anonymous Coward]

I think the sharing idea is indeed an issue (but how does that work with the iTunes idea then), but their tactics are just vile. I think we should bring back hanging for such lawyers.

And I don't mean by the neck..

Proof?

[PlasticArmyMan]

How exactly do the RIAA prove that the contents of the HD haven't been modified since they made the demand for it? Whats to say the guy didn't delete the files he was accused of downloading before the RIAA pounced? Hmm...

Simple solution

[SheeEttin]

dd if=/dev/random of=/dev/sda1

What data?

Re:Only because it's costs them real money up fron

[Monsuco]

Not only that, but the RIAA spends most of the money it gains from suing people on legal fees. If they loose a few cases and have to pah $1000 upfront to have the HDD inspected, $15000 in attorny fees, and they are ordered to pay court cost and the defendants legal fees which could cost another $20000 then they loose $36000. I am not sure what the real figures are, that is just a guess.