Slashdot Mirror
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
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!
But neither does the judge/jury have to consider the RIAA's claims that they have evidence but won't show it.
How far does judicial credulousness stretch these days?
"Be light, stinging, insolent and melancholy"
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.
...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.
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.
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
That makes no sense. It's another set of lawyers, working for RIAA, who are doing the "fucking with their system". So please don't try to claim that it's lawyers being offended who will right this matter. It's lawyers being paid lots of money to contort copyright and free speech, and often lawyers become legislators accepting lobbying support, who've created this legal morass out of what was once a much simpler set of copyright guidelines.
If you're looking for prior examples, try the current U.S. Administration.
"We have the smoking gun on Iraq, but we can't show you until after we go to war."
"We have the evidence to prove these guys are terrorists but we can't show it to you. disregard the canadian."
"We aren't doing anything wrong. Pay no attention to the man behind the curtain."
If you can read this, I forgot to post anonymously.
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...
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
And didn't DMCA suddenly make a criminal offence out of something that should have been a civil court matter. The stick has two ends. Criminalising something while bringing the perspective of jail, penalties, etc also brings a different standard of proof in most legal systems.
Baker's Law: Misery no longer loves company. Nowadays it insists on it
http://www.sigsegv.cx/
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!
Ray Beckerman +5 Insightful
BastardThieves(){
for( i=0, i lessthan infinity, i++ ){
generate random IP address
assign name "John Doe #i"
serve court order
}
}
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?
No, but they'd reasonably ask to see the actual footage... not the result of a face recognition system and a copy of the suspect's driver's license. And if photography were only a decade or three old, and had been known to photograph the wrong person?
I suspect that the demands are probably more than they need, and I suspect they don't expect to get all they're asking for, but I don't think it's unreasonable to demand more details than you would of a videotape.
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.
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.
"Don't let fools fool you. They are the clever ones."
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.
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.
That's not what's going on here. It's more along the lines of "This person accused me of something bad, so let me start with determining the credibility of their evidence, the chain of custody for that evidence, and the error rate for the methods they used to collect said evidence"
Comparing this to the "slutty girl" defense is inaccurate. The defense is challenging the methods that MediaSentry used to collect the evidence. Although it would be interesting to know how many of the subpoenas issued to ISPs have been responded to with "That IP address was not assigned to a subscriber at time in question" as it would directly relate to the error rate of MediaSentry's methods.
It's not paranoia when they really are out to get you.
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.
Excuse me, but please get off my Pennisetum Clandestinum, eh!
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."