Judge Lets RIAA Subpoena Defendant's Employer

NewYorkCountryLawyer writes "A judge has ruled that the RIAA can subpoena the defendant's employer in a case pending in Manhattan federal court, Atlantic v. Shutovsky. The judge's order (pdf) contained eight separate rulings deciding 19 pages of discovery disputes (pdf), resolving virtually all of them in favor of the RIAA. Other decisions made include: 'The plaintiffs were permitted to take depositions of Mr. Shutovsky's wife and his brother. Plaintiffs were required to produce all non-privileged documents or materials relating to any investigation and any sound files on their computer, and to produce a privilege log as to any claimed to be privileged. Defendant was required to provide the name and address of each person who used his computer during the three years prior to commencement of the lawsuit.'"

Comments

Out of control

[SuSEboy]

3 years eh? Good luck with that.

Re:Out of control

[Anonymous McCartneyf]

Let's just hope there weren't any botnets using this computer.
If there were no botnets, then that order should be possible to fill, assuming there were no attempts at plausible deniability. That still leaves everything else awful, I know, inc. how the RIAA got its case in the first place; but still, if there were no botnets, then it should be possible to narrow down who downloaded the RIAA's sting files.
If there was a botnet on the computer, however, someone innocent will get cooked by this order. How's a layperson to know if there is?

Re:Out of control

[Anonymous Freak]

Let's see, three years of my main laptop would include myself, my wife, my kids, my parents, my grandparents, my sister, my father-in-law, my sister-in-law and her family, a dozen or so friends (I can't be certain which ones,) and, oh, about 100 clients whose names I don't remember. (I often demonstrate things to clients on my laptop, and they do sometimes "use" my computer for a minute or two.)

My son's desktop computer would mean 'ratting out' a dozen or so of HIS friends. (10-13 years old at time of use, if you're covering 3 years worth of usage.)

For a corporation, producing a detailed 3 year log of who used a computer may be a feasable asking, but not for a personal computer.

Re:Out of control

[Anonymous Coward]

3 years eh? Good luck with that.

Overreaching fucking sons of bitches!

This judge must have no more than a single-digit IQ.

Too bad we can't get this roaring bastard to allow discovery on our revered commander-in-thief.

Re:Out of control

[TimTucker]

Assuming that said company doesn't happen to have a tendency to reformat whenever a PC has a problem or gets transferred to someone else.

Do your own damned work.

[SanityInAnarchy]

What evidence (if any) does the RIAA have on this person?

(None? Yeah, I thought so. Wouldn't exactly be uncommon.)

But really, it just strikes me as bizarre the amount of work they're requiring the defendant to do -- they are basically asking the defendant to investigate themself.

Ordinarily, of course, I wouldn't be worried. I'd simply turn in a bunch of sound files and say I don't remember where I ripped them from, or where the physical CD went. Because under ordinary US law, it would then be the burden of the plaintiff to prove that those particular files did not belong to me. But this isn't ordinary US law, this is bought-and-paid-for RIAA law.

Re:Do your own damned work.

[Anonymous Coward]

It's not a matter of evidence. The burden is on the defendent, since it is copyright law.

Re:Do your own damned work.

[cpt kangarooski]

I don't often say this, but LOL.

A statute on how the Copyright Office determines statutory royalty rates (e.g. how much per song internet radio stations have to pay the copyright holders, in order to play them) is as irrelevant to a downloading case as the price of tea in China. Copyright Royalty Judges are just ALJs, not Article III judges. You clearly have no idea whatsoever what you're talking about, and no idea of how to find out. You probably just googled the Copyright Act for anything related to production.

What you actually want to look at for this case, are Federal Rules of Civil Procedure, which set forth the rules for discovery. You can find them here.

I'll give you this, however: that was the stupidest thing I've seen on /. all week.

Re:Do your own damned work.

[NewYorkCountryLawyer]

Last I checked, the RIAA has never ever gone after downloaders, only people sharing songs. For that purpose it doesn't matter much where the songs came from, since you certainly didn't buy the right to distribute them. Since it's a civil case and it means "preponderance of evidence", you need something that'll negate their weak evidence. Options: a) It's not the song you claim it to be (most P2P networks have hash checks though) b) It's not the correct IP address (the ISP must have made a mistake) c) It's not any of my computers (open WiFi, guest using my network) d) I wasn't in control of the computer, a trojan must have done it e) I wasn't in control of the computer, my friends/family/guests must have done it f) I wasn't aware I was sharing copyrighted works (but that only limits the liability) Their evidence leaks all ways, but they are trying to patch it up in all directions. Evidence?

Did you say evidence?

They don't have any evidence.

Re:Do your own damned work.

[NewYorkCountryLawyer]

I'll give you this, however: that was the stupidest thing I've seen on /. all week. Which, the misguided reference to the royalty judges, or the decision in Atlantic v. Shutovsky.

Re:Do your own damned work.

[cpt kangarooski]

Ok, since you're the lawyer can you show me a link where it says that the burden of proof rests with the defendant?

Well, let's start with that. Laypeople generally don't understand certain procedural aspects of the legal system. A lot of people will say 'burden of proof,' sometimes even lawyers (although then it's a sort of lazy, highly contextual shorthand), but technically there's no such thing.

There is a burden of persuasion, there are evidentiary burdens, and there is a standard of proof. They're all different things, though significantly interconnected. The burden of persuasion is the burden of a party to prove its claims. For example, when we say that people are considered innocent until proven guilty, it merely means that the prosecution has to convince a jury of guilt, nothing more. Evidentiary burdens are used for proving that specific facts are as a party claims; for example, in a copyright suit, the plaintiff begins with the burden of having to show that he is the copyright holder (or otherwise has a right to sue in the first place). If that burden is satisfied, then the burden may shift to the defendant who can try to rebut it with proof to the contrary; if he succeeds, the burden shifts again, and so on. And the standard of proof is the standard which must be met in order for a burden to be met. In a typical civil case, it'll be a preponderance of the evidence (i.e. more likely than not, even if only by the slightest amount). In a criminal case, it'll be beyond a reasonable doubt, which is a much higher standard.

But in any event, while we are talking about the discovery portion of a case, where the two sides are engaged in gathering the evidence that they need, I really don't see your point. On TV you have things like surprise evidence or witnesses, gathered and presented at the last moment for dramatic tension. This is unrealistic. In fact, by the time a trial actually begins, both sides will routinely know exactly what evidence will be presented, what testimony will be given, and have a pretty good idea of the ultimate outcome. This is part of the reason why most cases don't get to trial; it's more common for one side to know it'll win and the other to know it'll lose, and for them to want to come to some agreement without wasting time and money drawing it out. The discovery rules are meant to facilitate this; in a proper trial, there are no surprises.

So we have things like Rule 26(a), which requires each party to voluntarily give a lot of information to the other side without having to be asked about it, 26(b), which allows any party to get all probative non-privileged evidence, or even non-admissible evidence which will lead to admissible evidence. If the other side has a good reason, they can object to it and the whole thing gets hashed out by the judge, as we see here. But generally the US is extremely plaintiff-friendly and has extremely broad discovery, compared to much of the rest of the world.

I think the technical term is reading, I mean the law is all written down right? That is the idea behind self representation isn't it?

There's a reason why pro se litigants are so heavily discouraged. Yes, it's all written down. But then, you might as well try to learn how to use a spreadsheet program by diligently reading through the source code. It takes about three years of hard work for people to become lawyers, and that's with the benefit of people teaching them. And even then, a smart baby lawyer is going to find someone more experienced to work with so that he can learn the important practical aspects of the law which are generally ignored in school, in favor of the higher level concepts. And one of the first things you get taught is how to do proper research, often using tools which are specialized and not available to everyone. (For example, Google is crap for legal research, really. Westlaw and Lexis have it beat, both in terms of what's in their database, and the power and flexibility of the search queries. Of course, you have to pay to u

Re:Do your own damned work.

[10bellies]

With BitTorrent, you cannot download without sharing. So that distinction is swiftly becoming irrelevant.

1 - Launch torrent client of choice.

2 - Set upload to 0kbps.

3 - Load .torrent file into torrent client.

4 - Download data while sharing/uploading nothing.

Simple really.

Granted, some private trackers don't allow you to do this, but most (if not all) public trackers do.

And yes, I'm aware that if everyone did this, no one would be able to download anything...most people don't though.

This just correctly demonstrates...

[tgatliff]

The raping of your legal system, and a complete lack of the political world of caring. In no way would the founding fathers see this for anything other than what is it.... A classic shakedown to get cash for a large company... In this country we have to come to terms that Intellectual Property is not something you can force people to pay you whatever you want. There must be balance...

Re:This just correctly demonstrates...

[PopeRatzo]

Are you authority-loving, pro-corporate, free-market types getting this? Is the depth to which our system has sunk showing up on your shallow radar yet? You think it's OK for this industry organization to use this type of life-ruining intimidation tactic in order to protect their profits?

At what point do you decide that people are more important than quarterly stock prices? And before you pull out that old chestnut about what's good for GM being good for America, remember that not one of these corporations any longer has the least bit of allegiance to the USA. And before you tell me that all Americans now have a stake in the stock market the way Larry Kudlow does every week, bear in mind that the percentage of Americans who have retirement benefits from their jobs is shrinking and the number of people who once had employer-funded retirement accounts and who no longer have them because their employers have canceled them is growing. Oh, yeah, don't lose sight of the fact that the labor unions who got us those retirement benefits in the first place have been systematically destroyed by those grinning goons in nicely-pressed suits that are currently running our economy.

Throw in the millions (yes, that's millions) of people who have purchased or refinanced homes in the past 6 years who are now in danger of losing those homes to foreclosure and you get a picture of an economy that is a lot less robust than our peerless leaders are claiming.

The behavior of the RIAA and their lackeys in government is just one of the sickening signs of system that's become deeply threatening to anyone who's not rich or connected.

And trust me, those of you who think you're invulnerable because you're making $42k per year doing network support with health and 401K on top!!1! -- Starbucks is littered with technically skilled 30-somethings that once thought like you. And they don't show up in the unemployment statistics because, after all, they have a job.

Re:This just correctly demonstrates...

[Jah-Wren Ryel]

Are you authority-loving, pro-corporate, free-market types getting this? There is nothing even remotely "free-market" about this situation - copyright is a government granted monopoly and this court ruling is, by virtue of being a court ruling, government interference.

Re:RIAA

[nacturation]

They only are having success in the police states of america that means that they will soon parish. Are you sure you don't mean a church state? Perish the thought!

Sigh, so different from Germany

[renoX]

Poor americans, when you compare what was the German more sensible reaction
http://yro.slashdot.org/article.pl?sid=07/08/02/16 47221 and this one..

Re:Bad news for IT techs

[pfleming]

What's even worse is that they are asking for "By September 4, 2007, defendant is directed to produce all hard drives or data storage units, whether removable or not, which are in his possession and control, including but not limited to all hard drives or data storage units of any computer that through which he had internet access on or about August 17,2005."
So how many hard drives is that? I know that sometimes in a given day I may access the internet from two or three different computer systems/networks. I also have boxes full of hard drives sitting on the shelf. How the hell can they ask for so much that they might shut down entire businesses? There didn't even seem to be a time limit. I say stop buying stuff (and downloading/using it) from companies/groups/vampires that treat their customers like criminals.

Interrogatory #7 sounds intentionally misleading

[henni16]

Nice response of the plaintiff in the "joined letter" on page 10 where they are asked to provide details of the investigative methods used to obtain the IP address and screenshots.
They talk about lots of things in detail that aren't really relevant and than basically skip over what was really asked:

They provide lots of details on how to use Kazaa (go to a website, download the program, click this button, then that button, select entry from list X, yadda yadda) to "connect with like-minded infringers" and lots of whining about how "them be exponentially stealing perfect copies of teh precioussss".

Followed by:
"We logged on to Kazaa and then did stuff like making screenshots like everybody could do.
  And we saw him do bad things, oh yes we did.
  Or go and ask Media Sentry to get additional non-answers because that's all top secret business stuff you wouldn't understand anyway."

Re:Bad news for IT techs

[vuffi_raa]

I rip these HD's for a living- not RIAA related mostly b2b and class action- I have to tell you it is EXPENSIVE- I don't understand how prosecution can justify the millions that it costs- esp. since the defendant needs to produce the data but litigant needs to pay for anything that it is going to analyze and submit- if say for some reason I was submitted a subpeona like this just the labor cost of declaring the privileged data from employer's hard drives that are accessed via the internet- this would be the entire company network - we are talking something in the realm of a 200-500 million dollar cost for the prosecution to produce the data- that is from my company (which is the lowest cost vendor as we have a great deal of internally developed automation) from another place you would probably have the costs shoot up to upwards of a billion dollars for the litigation cost- not to mention that when I access the internet through public access servers via wi-fi you would need to subpeopna those servers as well correct? it gets bigger and bigger- how could you possibly justify this economically?

dear germans on slashdot:

[circletimessquare]

american music connoisseur here, looking for a good proxy server... let the obvious solution to this retarded american legal bullshit commence

dear riaa: the internet was originally designed to route around damage in the event of a nuclear war.
you may consider your legal efforts to be nothing more than damage, to be routed around

feel free to sue somebody about this. because that's obviously the solution to your problems. fucking retards

Re:dear germans on slashdot:

[henni16]

Funny, I was thinking about finding a proxy outside of Germany. You might want to reconsider: Data_retention_in_the_European_Union:

"Germany, for example, has indicated that it seeks to make retained data admissible in certain civil copyright cases" Oh, and then there currently is a VERY big buzz about making it legal for law enforcement to secretly break into suspects' computers and install a special "federal trojan horse". There are reports of people being contacted with job offers regarding the modification of network traffic to poison downloads on-the-fly. Political argument is: "There's a security gap! All will die if the government isn't allowed to search through HDs without anyone knowing about it and if it isn't able to capture passwords. Terrorists might be using encryption!!1! "

An outrage

[cyphercell]

This is a horrific application of legal theory, in fact it flies in the face of US court proceedings. It's called "burden of proof" and without it you are guilty until proven innocent, literally you are tasked with proving yourself innocent.

It's a sad day indeed when a privately owned entity can practice McCarthyism and nobody notices. Welcome to the United Corporations of America, an experimental perversion of capitalism, totalitarianism, and military dictatorship.

Free speech is all we have left.

Re:An outrage

[timon]

Free speech is all we have left.

Only as long as it only occurs in designated free speech zones.

Botnets?

[infonography]

So how does one prove that the computer in question had been/was infected? Unless they kept detailed logs at the ISP then only an analysis of the traffic would be proof.

I would guess the ISP would balk at that due to;

1. The unlikelihood they had these on file. (if they did they would see a mass exodus of customers on GP)

2. The in-house costs of doing this analysis likely outside of the skill sets of the usual NOC staffers. Meaning Who is going to pay for said work? (See reason 1)

3. The Lawyers for the ISP refusing and standing on the grounds that they as a Common Carrier are not required to keep/give this sort of info without a search warrant in a CRIMINAL case. (by the way who are they we should shine some light on them)

But other claims could be made, like claiming that the wireless Linksys router the had didn't have any security or was provably crackable. [read as walk in the park]

Re:this is legalised highway robbery...

[NewYorkCountryLawyer]

"Stand and deliver, your money or your life..." They could drag just about anybody into "court" for this and get them to account for every media file on their computer... nobody who's had a computer for any period of time would be innocent here... everybody does it... anyone who says they don't is a liar... what we need are switched on jurors to do their duty and return not guilty verdicts... Only one problem with that. These cowards always back down just before the jury trial. There aren't any jury trials. They run up the legal bills as much as they can, and then run away with their tail between their legs.

You have to be kidding me.

[papabear1134]

Ok, so I looked into some of what was written in the discovery document. Couldn't get past the first few pages.

First thing that jumped out at me.

Page 2, para 1 (defendant)
"He has offered to provide copies of his passport to demonstrate conclusively his absence fromt he U.S. during the times when song files were allegedly downloaded, but that is apparently not sufficient for the plantiffs."
--
Page 3, para 2 (plantiff)
"Defendant has produced certain pages of his passport to Plantiffs, but those pages are inconclusive as to the Defendant's travel abroad."

Ok, so since when is a copy of your passport (with dated stamps of countries you entered) NOT conclusive you traveled there at that time?

Next.

Page 2, para 2 (defendant)
"...I delivered his computer to Mr. Guida on June 7th for creation of a mirror drive. The computer has been returned, and I am informed that the mirror drive has been done. I have just received their expert's forensic report."

So... guessing Nothing was found, otherwise the plantiff wouldn't keep pushing so hard to get some evidence.

Last thing that caught my attention before I gave up reading it.

Page 3, para 3
"Specifically, the computer produced by Defendant does not contain any evidence of Verizon software necessary to connect to the internet via the Verizon network..."

Are these people serious? I mean, they believe you HAVE to install your ISP's bloated crapware to connect to the internet... Never once in my life have I ever installed the ISP's software, you DON'T have to, and better you don't. When I read that I gave up on reading more. Half of the lawyers, judges, and people in government (more along the lines of 90% of them..) need to be shot. They are way behind the times, pushing through judgements and laws without understanding what it is they are dealing with.

This is the number one problem with this country currently, Outdated laws, and law makers.