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Court Rejects RIAA's Proposed Protective Order
NewYorkCountryLawyer writes "You may recall that a few weeks ago the Court rendered a detailed decision providing for safeguards in connection with the RIAA's proposed inspection of the defendant's hard drive in SONY BMG Music Entertainment v. Tenenbaum. The decision instructed the RIAA to submit a proposed protective order consistent with the Court's decision. The RIAA submitted a proposed protective order yesterday, which attracted some thoughtful commentary by readers of my blog, but today the Court rejected the RIAA's suggested order, explicitly rejecting many of the 'enhancements' included by the RIAA, including production of 'videos' and 'playlists' which might be found on the hard drive. Instead the Court entered an order the Court itself had drafted. The Court explained that 'the purpose of compelling inspection is to identify information reasonably calculated to provide evidence of any file-sharing of Plaintiffs' copyrighted music sound files conducted on the Defendant's computer. Once this data is identified by the computer forensic expert... any disclosure shall flow through the Defendant subject to his assertion of privilege and the Court's authority to compel production, just as disclosure would occur in any other pre-trial discovery setting... (1) As should have been clear from the Court's May 6, 2009 Order, although the Plaintiffs may select experts of their choosing, these individuals are not to be employees of the Plaintiffs or their counsel, but must be third-parties held to the strictest standards of confidentiality; (2) the inspection is limited to music sound files, metadata associated with music sound files, and information related to the file-sharing of music sound files — it shall not include music "playlists" or any other type of media file (e.g., video); (3) the Examining Expert shall be required to disclose both the methods employed to inspect the hard drive and any instruction or guidance received from the Plaintiffs.'"
Oldest trick in the book. Change .jpg files to .doc or .xyz and the FBI won't think to look for your CP in those extensions? Not exactly. Modern forensics software looks at the first 4 bytes of a file and can tell you what kind of file a piece of data declares itself as. If you change one or all of those bytes but some forensic software can do a data-carving and pull out multi-media data from a hard drive, revealing all of your miley cyrus mp3s.
Is it sad that I am more likely to recognize you and your posts by your sig than your name or UID?
It seems as though that the judges in these cases are becoming more educated as to the technical aspects of this case and P2P filesharing in general. This can only mean that the RIAA's tactics will be scruntized more closely by the court than ever before. This can only be a good thing for defendants in these cases. If the defense prevails, this is the start to the end of this mess for once-and-for-all. Thanks to NewYorkCountryLawyer for keeping us on top of this.
This judge seems to be much more on top of the legal issues than she was in the early years. For 4 years she presided over uncontested cases. Then when some lawyering finally appeared for a couple of Boston University students named as "John Doe" defendants, and briefed some of the flaws in the RIAA's cases, the judge seemed to become more vigilant. It all proves the point that we have an adversarial system; the judges usually rely on zealous, competent lawyering from both sides. When one side can't afford to get good legal representation, the judge doesn't get to see the whole picture.
There have been a couple of judges who refused to rubber stamp the RIAA's chicanery --Judge Arterton in CT, Judge Brewster in CA, Judge Kelley in VA, Judge Otero in CA, and several judges in Austin TX come to mind -- but usually it doesn't work that way.
Ray Beckerman +5 Insightful