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Judge Says RIAA Can't Have Hard Drive

Posted by ryuzaki0 on from the quite-a-large-beast-to-be-jumping-through-hoops dept.

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."

16 of 233 comments (clear)

  1. woo, guess a few judges have read the law by swschrad · · Score: 5, Insightful

    about time RIAA is held to the law.

    --
    if this is supposed to be a new economy, how come they still want my old fashioned money?
    1. Re:woo, guess a few judges have read the law by owlicks58 · · Score: 5, Informative

      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.

      --
      -Alex
    2. Re:woo, guess a few judges have read the law by NewYorkCountryLawyer · · Score: 4, Informative

      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.

      --
      Ray Beckerman +5 Insightful
    3. Re:woo, guess a few judges have read the law by NewYorkCountryLawyer · · Score: 4, Informative

      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.

      --
      Ray Beckerman +5 Insightful
  2. Defendant's terms by Firehed · · Score: 5, Funny

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

    --
    How are sites slashdotted when nobody reads TFAs?
  3. An Easy Win Here Would Be... by punxking · · Score: 5, Funny

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

    --
    You can have my cynical agnosticism when you pry it from my cold, dead logic.
  4. Re:Precedent - Probable Cause? by ari_j · · Score: 4, Informative

    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.

  5. Re:This sounds like a good precedent by maeka · · Score: 4, Informative

    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.

  6. Re:Money can't buy love... by ClickOnThis · · Score: 4, Funny

    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!

    --
    If it weren't for deadlines, nothing would be late.
  7. Only because it's costs them real money up front by Alcimedes · · Score: 4, Interesting

    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?

  8. They don't need to use the courts... by Anonymous Coward · · Score: 5, Interesting

    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

    1. Re:They don't need to use the courts... by artifex2004 · · Score: 4, Interesting

      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.

  9. Actual Rule by ari_j · · Score: 5, Informative

    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. :)

  10. definition of expert: by jtwronski · · Score: 5, Funny

    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.

  11. Re:This sounds like a good precedent by shmlco · · Score: 4, Insightful

    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.

    --
    Any sect, cult, or religion will legislate its creed into law if it acquires the political power to do so.
  12. Re:This sounds like a good precedent by shmlco · · Score: 4, Interesting

    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...

    --
    Any sect, cult, or religion will legislate its creed into law if it acquires the political power to do so.