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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."
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....
I also, ANAL, but if I recall correctly, it's a state to state matter. In some states, even in criminal cases, the defense doesn't allow for discovery - they only have to share exculpatory evidence. But the prosecutor gets to decide what is exculpatory. It's called "trial by ambush".
http://www.coderoshi.com/
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?
Nope, the amount of discovery in civil cases often dwarfs that of even the largest, most complex criminal cases, and the rules are similar. You can refuse to produce documents on certain bases, including that it involves proprietary information or business secrets, but you have to convince the judge of this, which can be tough. A lot of times the parties will enter into confidentiality agreements, where only the lawyers (and possibly expert witnesses) will gain access to the produced information, not the clients. I think it would be tough to convince the judge that a confidentiality agreement wouldn't protect them.
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.
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
Yup - at work we have lots of systems that are subject to various government regulations, and which contain data that could become evidence in a lawsuit.
We take all kinds of care to document everything about these systems and their reliability, and we have retention schedules for everything and we follow them. While in a court case we might attempt to limit the scope of discovery we ultimately would be prepared to defend our data. Otherwise a computer log isn't evidence any more than a piece of paper typed up on a typewriter 10 minutes before the trial.
Looking at the laundry list, I saw one or two items that might have been a little broad, but most of this stuff is directly limited to the scope of the issues at hand and the reliability of the evidence. If there were 25 precedents that this particular software was bulletproof the plaintiffs might get the scope of discovery narrowed down a little further (maybe just to demonstrate that the software is the software that is considered reliable), but as things currently stand I'd be surprised if the judge didn't order the plaintiff to produce the supporting evidence or have their documentation ruled inadmissible (which would pretty-much gut their case).
IANAL though...
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!
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.
No, but you can perhaps believe that you would give a presentation on preliminary results and describe much about your methods, but leave out information necessary to replicate it.
Of course, you couldn't publish a paper without that information, but that's the way the scientific community works.
While I hardly give the RIAA the benefit of the doubt, I've learned that there's a wide spectrum between "no information" and "full disclosure".
NewYorkCountryLawyer, can I engage you in some speculation?
Why would a judge let them get away with ignoring Daubert?
Is it the judge's intention to let the record company proceed with a weak case which is likely to be appealed? And then let a higher court set a precedent that rips the bottom out of all the RIAA cases?
I thought Judges preferred to avoid being corrected on appeal?
Work for a small ISP, we get about 140-160 of these notices a week. On average, about 10 per week cant be attributed to a customer reliably. This MAY be an error at their end or it MAY be an error at our end (user logs going missing happen from time to time due to errors in our system)