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Should RIAA Investigators Have To Disclose Evidence?
NewYorkCountryLawyer writes "A technology battle is raging in UMG v. Lindor, a court case in Brooklyn. The issue at hand is whether the RIAA's investigator SafeNet (the company that acquired MediaSentry) now needs to disclose its digital files, validation methodology, testing procedures, failure rates, software manuals, protocols, packet logs, source code, and other materials, so that the validity of its methods can be evaluated by the defense. SafeNet and the RIAA say no, claiming that the information is 'proprietary and confidential'. Ms. Lindor says yes, if you're going to testify in federal court the other side has a right to test your evidence. A list of what is being sought (pdf) is available online. MediaSentry has produced 'none of the above'. 'Put up or shut up' says one commentator to SafeNet."
Maybe they are as they generally have no evidence anyway...
"I may be full of crap about this game, and I may be wrong, and that's fine." -Jack Thompson
IANAL, so obviously don't take my word as legal advice, but I was under the impression that discovery rules only pertained to criminal cases, not civil cases? Any lawyerly types care to chime in on this, maybe shed a bit of light on the subject?
Thanks
Keep playing little games like this, RIAA & MPAA, and you will find yourselves facing the Supreme Court.
"The fight for freedom has only just begun." - Geert Wilders
While they certainly don't want to disclose anything, they will probably be forced to disclose it to defense, so claims can be validated and/or rebutted properly. Otherwise it's the same claim as SCO -- "I have tons of evidence you did very bad thing, but I won't show it to anyone, not even a judge"
Hyperom.com
That's one way to make sure they're all guilty....don't allow em to defend themselves....
Without disclosing the hows, it would be extortion- otherwise I could sue you for taking my content and say, well my proprietary ways say you did, so pay up!
Yeah I saw him kill her and recorded it on my camera, but im selling the footage so its...
Well I'm innocent and i have a video to show it but its...
I cant disclose what guns i had in my possession at the time of the murder as my guns are...
Theres no way something is too 'proprietary and confidential' to show a court of law!
IranAir Flight 655 never forget!
Yes.
But neither does the judge/jury have to consider the RIAA's claims that they have evidence but won't show it.
They've gotten away with a lot, but I predict that the RIAA and their goons are about to receive a major legal smackdown on these issues. Whatever you may have against lawyers and courts, it seriously pisses them off if you try to fuck with their system like this. My guess, they're forced to disclose everything pertinent, and it will be shown in court that their methods are unsound as proof of what they're after. You heard it here first!
I remember a similar argument being used a while back by people convicted of drunk driving. They argued that their defense required access to the technical information about the breath-a-lizer, including the source and testing documentation.
If I remember right the judge in the case (Florida AFAIK) ruled in favor of the defendent. If the Breath-a-lizer company didn't turn over the requested documents, the defendent was off the hook. Don't know if the case has been overturned though.
...relative to the income and and standards of living of the people they're pursuing, I feel it would be an outrage if they didn't have to provide more.
Then again, civil cases just require a preponderance of the evidence to be in favor of one party or another. If the defense does its job in establishing doubts as to the RIAA's methodology, it would probably behoove the RIAA to disclose its methodologies in great detail to back up its claims of investigative accuracy, which would then subject them to more scrutiny and attempts to find fault. Does evidence really count for much of anything if it can't be substantiated? I think that any competent judge would, in weighing the evidence presented, be compelled to largely discount the RIAA's evidence when confronted with all the times they've been documented to have been dead-wrong, if they don't demonstrate how their evidence holds water.
No, that's exactly backwards! IANAL, either, but discovery is very much a civil matter. Until recently, it's my understanding that the police didn't even have to disclose all of the evidence they found to the defense unless they planned to use it in court. In other words, if they found something that proved you weren't guilty, they didn't have to tell your lawyer.
Mind you, that's changed somewhat because people felt that was very wrong. But they still don't have the sweeping discovery powers that you can get in a civil case. In a civil case, you basically have to argue that it's equally available to the other side (e.g. public information anyone can look up without you having to do it for them), unduly burdensome (i.e. waste of time and money, unlikely to lead to usable evidence), or a protected communication (e.g. communication with your lawyer).
Because this is an issue in basically every civil case, it's even more complex than that. So talk to a lawyer if you want to understand something about it, because it's pretty screwball and rather expensive if you goof up.
How can evidence be considered valid if the source of how it is obtained is not disclosed?
If this was anything except technology, the judge would laugh them out of the court.
Policeman: "He was going 11MPH above the speed limit."
Judge: "How were you able to do that?"
Policeman: "Sorry, but that's proprietary information. If leaked, it would damage our ability to catch speeders.
This has been tested on a slightly different case. Florida police can't use breathalyzers without providing the source. Unless you can show that there is no trickery in your technology, it shouldn't be held admissible in a court of law.
Perhaps RIAA doesn't have to submit it's evidence, but if it doesn't wish to do so, it should be ruled inadmissable. Can't have it both ways.
These posts express my own personal views, not those of my employer
Hard to reveal evidence if you don't have any. And it's happened a couple times where when pressed the RIAA admitted they didn't have enough to go to trial with. No wonder they want this to be on a need-to-know basis, since they need to know before they start.
Laughter is the Spackle of the Soul.
This motion may well come up for a conference or oral argument, or further briefing, so it would be interesting to see what you folks think about why these kinds of items are (or are not) necessary to test the validity of MediaSentry's methods and procedures.
Ray Beckerman +5 Insightful
Can a US citizen just higher an "investigator" to pry into someone else's personal business in the hope of finding evidence of a crime? If so, that may be a profitable business.
"Thanks for all the money you paid to us. We've used it to buy off ISO among other things" -Microsoft
Even if their methods are sound, diclosing them can lead to better defenses in the P2P community. While I think non-commetcial filesharing should be legal, that is a different battle.
On the other habd, their methods may be completely unsound, their evidence may not actually be evidence (file sice and name, e.g. are not enough to identify the contents of a file), and their experts may just be incompetent enough to not see where they are wrong.
I think, hard as it is on them, full disclosure of their methods is needed. In the specific case also full disclosure on who handled the data is needed. If they cannot meet these standards, then they should not be allowed to introduce their evidence. The problem is that it is far too easy to lie or collect evidence illegaly otherwise.
Most ACs are not even worth the keystrokes to insult them. Be generically insulted by this and ignored otherwise.
Unless, of course it turns out that they actually HAVE become a Federal agency while nobody was looking...
Strike while the irony is hot! -- The Freethinker
Remember when it started getting around that people were beating DUI charges by requesting the source code of the machine? If that was reasonable, this is a slam-dunk. The basic right to confront your accuser is one of the most important of the rights we have. If the defendant doesn't have the right to attack the evidence presented against him, he is effectively denied due process.
It's your case, RIAA. Put up or shut up.
This is not new terrain. The evidence can be examined under restrictions so the "proprietary and confidential" information doesn't make its way out of the confines of the case. Frankly, this is just standard legal maneuvering for a case like this. The test is whether the discovery methods will be considered germaine to the validity of the RIAA's case. If so, the court will likely allow discovery of these techniques.
Read the EFF's Fair Use FAQ
I, for one, can't wait to see what the RIAA has in their "little black box." Right now, there are plenty of questions from the technical side that leave me wondering how their evidence will hold up:
1. Are they using a homegrown sniffer that might be prone to capturing bad data, or are they using proven tools, like tcpdump, ethereal/Wireshark, etc.?
2. Are they synchronizing their time against a public NTP server before they go on their fishing expeditions? Or is their machine's time (and thus their subpoena for the user of a particular IP address at a particular time) perhaps off by a couple of hours?
3. Do they actually download the file being shared, or some portion thereof? Do they analyze that file to see if it is what they think it is? Or are they still relying on file names as some sort of proof?
The answers to these questions, among many others, are fundamental to the defense's ability to mount, well, a defense. Does there exist in civil law an equivalent to the confrontation clause, the "right to face one's accuser?" In these matters, it seems as though the accuser is some software package at BayTSP or SafeNet, that nobody knows anything about. You shouldn't be able to win a judgment against another party based on screen shots and testimony from one bogus "expert."
Thanks to the War on Drugs, it's easier to buy meth than it is to buy cold medicine!
Folks,
IANAL, but I have been an expert witness in many legal proceedings in Federal courts. As a part of discovery, you *have* to give the other side your raw data and details of your methodology. Otherwise, the judge is almost certain to throw out your testimony, as the other side has no way of discovering the weak spots in your case. I was involved with one case where the judge sanctioned one of the opposing experts and it took us three tries to get a decent set of data and models out of them. This had a very negative effect on the credibility of the other side's expert, which pretty well torpedoed their case. (They won as a matter of law, but damages were negligible.) Mind you, the data and models are generally covered by a protective order to maintain confidentiality, but it's so common that the wording is almost boilerplate. SafeNet and the RIAA don't have a leg to stand on here, and I can't imagine why they're bothering to oppose this unless they're pulling an SCO -- in which case, the judge should slap them down HARD.
--Paul
* Give us the source and schematics.
* Now give us the chip design details for all the chips used in the device.
* Give us the source for the compiler used to generate the firmware.
* Now we want an expert witness stating that electrons will actually flow through these chips....
The judge goofed here and should have requested that the brethalyser makers provide a testing certificate to show that the device actually works as specced and provides a reasonable reading. That's all that matters and finer details do not matter.
Being absurd can invalidate any evidence. You could call into doubt that an eye witness can actually see, or that the court house actually exists (perhaps the witness fell asleep and it could all just be a dream). That's where the "reasonable doubt" test comes in - to smack down really stupid lines of argument.
But back to the RIAA. They should have to provide proof that their evidence is of sufficient quality to meet the courst's test of "beyond reasonable doubt".
Engineering is the art of compromise.
Isn't here a legal standard as to what procedures are acceptable in court when presenting evidence? A legal test that determines if a relatively new investigative technique is admissable as evidence if enough experts view it as reliable? How can Media Sentry present their evidentiary procedures as both propritary to prevent it's disclosure, yet admissable due to its being widely-accepted? It is, prima facie, a direct contridiction.
Shameless plug for my photos on Flickr
They don't want to disclose anything because like Darl's lawsuit, the court will find out that the whole suit is a bunch of hogwash.
Lindor: Show me the evidence!
SafeNet: I'm afraid that's proprietary and confidential.
Lindor: If you don't show me the evidence, I'll demand it in court!
SafeNet: Uh oh, hold on, I'll get it...
RIAA: Don't do it, Boys!
SafeNet: But this is just one stupid lawsuit! If we don't show the evidence our whole sch..., I mean, "business model" will be over!
Lindor: Business model? What?
RIAA: Did SafeNet just say that? No, Ms. Lindor, they didn't. Hey, look over there!
They should just try the State Secrets privilege. "The terrorists want to take our freedom... and our mp3s!"
This is going to be interesting. In this age of technology and computerization, the rules for evidence credentials are changing drastically.
The potential for abuse is there. When log files can be forged and photos doctored with ease, at what point do we lose trust in the data? Proving that a footprint matches a particular shoe is a no-brainer. However, prove to somebody that the IP address you found in the logs of your hacked server weren't actually left there intentionally as a decoy. Clever as the hacker is, he even used the IP address of another well-known hacker so that there is no question of the MO.
If video footage of a crime in-the-act is caught, should it reasonably be expected that all of the above information about the digital camcorder be provided to validate the evidence? The storage media also? .. and the computer used to view and process?
To mitigate the problem of abuse somewhat, a third-party could carry out the investigation. In this case, it seems the RIAA have done that. To what extent will they be required to prove their evidence? And to what extent will the jury even understand? Should we expect that every future case involving a computer require an expert witness in the area of electrical engineering to certify what the processor did? Obviously that's an absurd example; But where's the line? Perhaps with the jury.
I despise the RIAA and want to see the defendants have every avenue available to them for proving their innocence. But at some point it can just get absurd and it becomes a burden on the judicial system and taxpayers.
Adapt, adopt, or get out of the way!
BastardThieves(){
for( i=0, i lessthan infinity, i++ ){
generate random IP address
assign name "John Doe #i"
serve court order
}
}
Um by law don't they *have* to present or else basically STFU? Its not like you can sight unseen. a grokker
C|N>K
What a flashback! As i remember and understand, this is rather to do with separation of power between Judge and Jury. If the evidence and testimony (hearsay rule) were to be crossed examined, the jury must be provided with "facts." After all, one can argue, evidence to be sufficient in submitting in court must be disclosed before the jury.
*1796, a statute in North Carolina made it unlawful, "in delivering a charge to the petit-jury, to given an opinion whether a fact is fully or sufficiently proved," since that was "the true office and province of the jury." In the nineteenth century, a number of state statutes took away the judge's right to comment on evidence.**
*Laws N. Car. 1796, ch. 4
**L.M. Friedman's A History of American Law (published 1973, 1985, 2005)
"Don't let fools fool you. They are the clever ones."
I guess if someone were accusing me of something, and they told a judge that they had some top-secret trust-me evidence that proved my guilt, I'd have little choice but to introduce my own top-secret trust-me evidence. I'm pretty sure by the time I was done the RIAA would be implicated in the deaths of Jimmy Hoffa and JFK.
You know, I've read this piece before, but just now noticed that he claims that the TRACEROUTE that they ran from media sentry TO the ip address in question was stored on the computer that they are investigating....
which is silly on face. The computer (that they claim was Lindor's) didn't have a traceroute TO it from Media Sentry ON it...
So, clearly, the people producing these documents are -- just plain not competent.
In fact, DEFG and H all aren't on "lindor's computer"
uh.... And I'm sure that's been commented on before, but I just noticed it.
OK. You want a court to order me to pay you $MANY bucks. Fine. You say I did something that deprived you of legitimate monitary gain. Fine. You say that because I did something, that I owe you lots and lots of money. Fine.
Prove it.
Otherwise this just becomes a protection racket. "Mighty nice income stream you have there, buddy. It would be a shame of something happened to it." "Maybe you should just pay us a few thousand dollars, because, like, you never know when we might decide that downloading GPL software is really downloading our Most Holy and Precious Intellictual Property. After all, once we railroad you in a kangaroo court with 'evidence' we don't have to disclose, a few thousand dollars becomes a few hundred thousand dollars...."
If I file suit against someone, I'd better be willing to prove all elements of the loss. Else my suit should (rightfully) be thown out on it's ear, my business fined, and my attorney facing disbarment for bringing a friviolous suit.
Our courts are here to correct real injustices. They are not here to protect outmoded business models, monopoly interests, or "pie in the sky" patents.
That said, file sharing of copyrighted intellectual property whose owners do not agree to share them without fee is wrong. It's one thing for Linus et al to give away a very valuable program (the Linux Kernel), it's quite another to rip someone's music and blast it out without compensation if they did not agree to let you do so.
The real answer here is a common micropayment system (a tip jar), and to simply let RIAA and their anal retentive and grossly over exagerated 'damages' go the same way as coal oil lamps. They just aren't needed today because technology and the consumer have moved beyond their ability to provide a valued and valuable service.
Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.
Or, failing that, some kind of Bill of Rights or something, which requires that a defendant be presented with all of the evidence being used against him or her.
Why is is that in the USA only Criminal proceedings are held to reasonable standards of fairness while "civil" cases are all about which side can screw the other guy faster?
Secret Evidence
General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
Civil discovery is a truly awful experience (bare all), and _they_ started this suit. They ought to have known they would have to produce anything connected to anything possibly introduced into evidence, and anything their opponents might want that could potentially lead to evidence. H3ll yes: logs, and then answer interrogatories about why they choose to prosecute some and not others.
Of course lawyers will argue and object. They're paid to do this even for the stall when they know they won't succeed. I expect the judge to deny the objection and refuse to allow redaction. There are very simple and very set rules of procedure to follow.
... where you don't have to turn over evidence to the accused. Go RIAA!
Proprietary evidence, that's a good one!
"We cannot disclose our evidence against the defendant your honor, for you see, it is proprietary!"
1. Is the media that they wrote the logs to a read/write type such as a hard drive, or is it a write-once medium such as CD-R, WORM, or any other of a litany of one-shot write technologies. Read/write media leave open a gaping credibility hole, as the files can be easily modified at any time to say anything.
2. Can they produce the original media AND prove that it has not been modified since the records were created?
3. What verification of the date/time stamps are they using? Is it just a text or number date/time, or something more robust such as a time-based GUID? And is there a secure checksum of the entered record (such as an MD5 hash) that can be checked to show authenticity?
4. What measures are they using to ensure that their date/time stamps are reasonably accurate?
5. What physical security measures have they taken to ensure that physical and/or remote access to the media and systems used is restricted only to authorized personnel?
Of course, I can't produce evidence since it's proprietary.
A court has to look at the evidence. You cannot do something secret in court.
Excuse me, but please get off my Pennisetum Clandestinum, eh!
I find it a fantastically inspired demand, for a number of reasons.
:-).
(1) Safenet never had an independent examination done of its methods, so they have nothing to show in court right now that collaborates their assertion that what they provide has a scientific basis (IMHO, fat chance anyway from what I've seen).
(2) Being forced to demonstrate all may inspire a LOT of evaluation, and may thus negate the evidence found in a lot of other cases.
(3) The moment they're found wanting, the game is over until they cook up a new methodology. Which will face the same risks..
(4) Maybe, just maybe, there's scope for a class action against them on the basis of having sued and convicted people on the basis of questionable evidence. I don't think you can say 'manufactured' but I'm sure the term may feature somewhere.
I am OK with copyright, as long as it's used sensibly. This is straight out abuse of copyright law and the legal system so I personally have no problem with them being hung high and quartered slowly. "Because they're worth it"
Why should they have to disclose evidence, or even prove beyond any reasonable doubt that their victim is guilty?
I mean disclosing evidence would lead to national security issues and within minutes, the entire country would be over-ridden with terrorists! Why won't you think of the children??!
All **AA cases should simply be awarded a $250,000 settlement automatically. Stop wasting taxpayer's money on lengthy court cases.
Why doesn't the government simply introduce an entertainment license? For a modest $25,000 per annum ($24,998 for administration and $2 for the artists) you can buy yourself a license to be entertained, regardless of where you obtain your media from.
There you go. End of problem.
"Go f* yourself RIAA" says another commentator.
Signed,
Another commentator
I love the title of the article. Why ask a question if the answer is obvious? It is a bit trollish, and makes the title seem objective, when clearly it isn't... Bill
For MediaSentry to claim that their methods are beyond inspection has a simple solution. Throw out every case where this information is not made available in its entirety.
MediaSentry is known to have had False Positives. IP addresses and Timestamps they've submitted to ISP's for subscriber information where the ISP says there is no such matching entry in their logs. Those are the easy errors to spot. But how about the errors where instead of getting a completely invalid IP/Timestamp, they merely get a wrong one that hits an innocent person?
Bottom line: Media Sentry's methods are known to have errors. How many? How often? Why? That's what needs to be determined!
And remember that there are no quality standards in place for ISP record keeping either. Even if MediaSentry was perfect, the ISP may well not be.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
RIAA Lawyer: Nah! You wouldn't understand it anyway!
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
And how does it not leak out when the Defense's Expert Witness proceeds to quote what he's refuting in open court? I really don't see how you can actually keep this secret if it goes to trial by jury.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Except that we've seen in the one case to actually to to trial that juries are stupid, and judges are willing to be led by the nose by the RIAA in their jury instructions.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Oops! Sorry.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Excuse me, but you are operating in a Sane World where these things all come out in the wash at trial, and the wrong party gets punished. The RIAA isn't operating under those rules. Their punishment is inflicted by their ability to drag this out forever, with tens of thousands of dollars of legal fees inflicted on the Defendant, who never gets his/her day in court, or (usually) legal fees reimbursed after the RIAA then cuts and runs by a dismissal WITHOUT prejudice once it's clear they're about to lose. They've just screwed you royally because you're guilty in their eyes -- even if never under the law itself -- and gotten away with it!
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Comes down to: Even if the RIAA were to find a computer owned by someone at the address identified by the ISP as the one using that IP address, and even if the computer has KaZaA on it and all the files MediaSentry detected, you still cannot prove that Distribution in violation of the copyright holder's exclusive rights ever occurred from that computer.
That's the RIAA's true problem, and why they're not winning these cases en masse at actual trial.
And this is all before we even get into the illegality of Media Sentry's investigation without proper licenses, and the fact that their "evidence", and all "evidence" derived from is is Fruit from the Poisoned Tree.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
It's not that the RIAA hasn't proven their case. It's that THEY CAN'T prove their case!
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Evidence should be able to stand on its own.
We HAD habeus corpus in the 'States until recently.
Now though...
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