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."

Comments

Yes.

[Is0m0rph]

Yes.

For the amount they're pursuing...

[pyrr]

...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.

Backwards!

[Anonymous Coward]

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.

Re:Of course, how else can the evid. be valid?

[Cadallin]

Unless you can show that there is no trickery in your technology, it shouldn't be held admissible in a court of law. Precisely. In the true technical legal sense, such evidence is hearsay. Thus it is a priori inadmissible, unless you can demonstrate to a judge, on an item by item basis why it should be admissible. Can't do that, or you're afraid to? Too bad. It is exactly the same thing as trying to get "Expert Testimony" admitted, when you won't demonstrate what the expert's credentials are, and what relevance it has to the case. In such an event, an expert's testimony is inadmissible as well.

This argument is really just claiming that the same rigorous standards of evidence should be applied to technology as well.

Re:Similar to Drunk Driving defense...

[glavenoid]

Breathalyzer source code in criminal trials has come up on /. a few times. If you ask me, this sets a precedent that the "propriety technology" excuse can't be used to limit a defendant's right to examine all evidence against him/her. However, those were criminal cases, perhaps civil law doesn't follow the same legal precedents?

Re:This is standard civil procedure

[NewYorkCountryLawyer]

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. You're 100% correct, Paul. Now let's see what the judges in this case do. They have previously allowed the RIAA's "expert" to testify as an expert even though he admittedly satisfied NONE of the Daubert reliability standards, and even though he admitted that all of the materials upon which he was relying -- the printouts MediaSentry would like us to accept as gospel -- likewise failed to satisfy ANY of the Daubert reliability standards.

Re:What I don't get

[NewYorkCountryLawyer]

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 contr[a]diction. That's my question.

Re:Extortion

[TheRaven64]

I have no problem with this. However, I also have evidence that the board members of all of the big four record companies are guilty of murder. I'm not, however, at liberty to say who they killed, or what the evidence is (it's commercially sensitive), but I intend to bring civil prosecutions for murder against all of them and, under the same rules, expect to win.

Re:What I don't get

[layer3switch]

Atlantic vs Dangler
http://www.ilrweb.com/viewILRPDFfull.asp?filename=atlantic_dangler_071023DecisionDenyDefaultJudgmentMotion

I am not sure how useful, but hopefully this ruling may be relevant.

Re:Discovery rules in Civil vs. Criminal cases?

[gnasher719]

I was under the impression that a judge in civil cases has a lot of discretion. There is plenty of discovery orders in civil cases. While the judge may not agree to say "Let the other side see...", he may say "Show me, I want to see ...". In any case, some discovery can be filed as sealed documents. That would seem to apply here. The judge can't keep anything like that to himself, he would have to allow access to the defendant's lawyers and expert witnesses (but not to the defendant and the public). Lawyers and expert witnesses would obviously be in big trouble if anything leaked out.

On the other hand, there is now precedent that you can't hide behind "proprietary methods"; I think there was the case of a manufacturer of breathalyzer equipment that ran into this problem. Of course they can refuse to open up their "proprietary methods", but then any evidence based on these proprietary methods would be invalid. In case of the breathalyzer equipment, nobody could actually force them to open up their code, but in practice every case based on their equipment would have been dropped, and the police would never again have bought their equipment.

Re:Disclose to defence at least

[NewYorkCountryLawyer]

Yes but that was an OUTRIGHT LIE on their part, TubeSteak. Didn't you read our reply?

Re:No, they shouldn't

[Gideon Fubar]

Yes, precisely.

It seems to me that the *AA groups are confusing their own morality (and profits) with the laws of their country.. Even if it's just a linguistic liberty (equating 'sharing' or 'copying' with 'stealing'), they need to remember that the laws apply to them too, even if they're a 'legitimate business', and the people they're suing are 'criminals'.

Re:Disclose to defence at least

[rboatright]

he's not calling any of them that exactly.

A 35mm camera, and the process of taking photos is not criminal when not in the hands of a private investigator, but in the hands of someone CONDUCTING AN INVESTIGATION for pay, under contract from a company or a law firm CAN be criminal. It's not the tool, it's the use to which the tool is put.

Re:Discovery rules in Civil vs. Criminal cases?

[flyingfsck]

For the non-Americanos: Discovery is a form of Cross Examination which doesn't happen court. It typically takes place in a lawyer's office, in the presence of a Court Stenographer. This process shortens the amount of time a case has to be in court. In other countries, this may take place in a lower court, to reduce the load on a higher court.

Re:Similar to Drunk Driving defense...

[ray-auch]

the brethalyzer is an "approved" devise for measuring blood alcohol.

The RIAA isn't using an "approved" device - that is a big difference, and why they are being asked to provide details of the device.