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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.'"
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.
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Any lawyer that can't come up with a production order that sticks to court ordered criteria should be sanctioned on the spot. I.E. you have a list of things that your order MUST satisfy, yet you think that there quite a bit of flex in it. Its like getting a shopping list with milk, eggs, butter, bread and coming home with cheese, quiche, marjoram (not margarine) and chips. How daft must the RIAA lawyers be to do this? In my experience as a COMPUTER FORENSICS EXPERT I have never seen attorneys flaunt a court order and attempt to come up with new criteria. I guess I'm in the wrong circuits.
Is it sad that I am more likely to recognize you and your posts by your sig than your name or UID?
The plaintiff has always had the burden of proof. It must show by a preponderance of evidence. This is a solid decision and it shows the RIAA that they should have to work for their supp.
You can lead a man with reason but you can't make him think.
Not really. I can take the same CD and have an infinite amount of MD5 hashes due to the file format (for example a 96KBS MP3 will be different than a 256Kbs MP3, a 96KBS OGG will be different too, etc). But as another poster said, most forensics software looks at the header and can quickly determine the file.
Taxation is legalized theft, no more, no less.
Not precisely. Preponderance of evidence is forced upon the recieving party. I've been involved with cases where preponderance of evidence against the plaintiff got cost shifting, though most of the time its the plaintiff saying "Yeah Huh!" and the defendant replies with the ever so eloquent "Nuh Uh!".
Yes, that's how court cases go, there's a bunch of briefs, responses, and arguments that ammount to "Yeah huh!" "Nuh uh!" "But he started it!", and so on. They get more wordy than that, but that's all it boils down to.
Is it sad that I am more likely to recognize you and your posts by your sig than your name or UID?
Your general point, that a variety of techniques that would qualify as obfuscation or even steganography, could be used to evade this search is perfectly valid.
However, I don't think that "they can only examine music files" means what your post suggests. A file is just a collection of bits. To know what it is, or what it isn't, you have to examine at least part of it, there is no alternative. You can look at the file suffix, you can look at the magic numbers, you can look for distinctive attributes of a given file format, you can draw other inferences(Hmm, I see a "Black Sabbath" directory, with a "Paranoid" directory inside it and, inside that, 8 ".doc" files that have well formed ID3v2 tags... What a coincidence...).
Any file that doesn't appear to be music related would be inadmissible as evidence, and the forensics guy would be, arguably, guilty of misconduct if he poked any further than necessary to determine that a file isn't music; but it wouldn't stop him from checking each one. I'd be analogous to a court order to look for ransom notes you had written: Letters to your grandmother would be out of bounds; but that wouldn't mean that you could make anything inadmissible just by writing her address on the envelope.
Just out of curiosity,Ray, if one were so inclined, how could an individual (or group) file an amicus brief with a court? Is there a boilerplate example to reference?
IANAL, but it goes something like this: first, you hire a lawyer...
But in this case, the forensics expert isn't allowed to look at anything but music files.
So looking at this four byte header for every file on the computer is obviously looking at more than music files.
This isn't the FBI we're talking about. Sure, if they're looking for terrists, they'll look at everything on your drive, and damn whatever the court says.
But this is the RIAA's chosen forensic expert, who's been given strict orders to not look at anything other than music files.
If they can't tell if it's a music file without examining the file, then they're screwed.
"City hall" in German is "Rathaus" Kinda explains a few things......
Simply changing the ID3 info for the file will change the hash.
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It never bodes well. I remember when Microsoft was giving the EU court hell behaving as if it were a US court where they can appeal everything ad infinitum and eventually end up with whatever they want AND an official apology to boot.
But here it's the plaintiff and the court butting heads. I'm not a lawyer... definitely not. But I have got to say, that when you give the people who are making a decision either for or against you a difficult time, it can't be terribly wise... it just can't be. Even the lay-people know the courts systems aren't completely fair. What manner of arrogant do you have to be to behave in this way?
Not really. The forensic expert wouldn't technically be looking at anything the software doesn't pin as a music file.
The software can anonymously (can't think of the word I want but this is close enough) scan through each file and only log or flag the ones labeled as music then after a more thorough check, report only what is music files as to what the case is about. The forensic expert will by the very nature of the game need to look at files other then what is ordered in order to make his report. What he can't do is list any files not in the order nor disclose any information about them.
Imagine if I told you to pick me out of a crowd. You would have to look at other people to find me. Not even if you used facial recognition software, you would still have to look at other people to find me. It's the same in the forensic world, however, you wouldn't be allowed to identify or report the identity of anyone else in the crowd if the judge made a similar order to your searching just for me. The order won't defeat the technical aspects of the search, just limit the disclosure and discovery of anything not outlined in the order.
It's not the forensic expert looking at the files. It's an automated tool. Carried to its extreme, the same logic would say the tool can't look at the filename. The tool has to look at all the files. The person only gets to look at the ones that are music files.
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I personally think that copies which exist only in RAM should not be considered copies at all
And that's the truth. I mean, if you want to carry this to the point of logical absurdity (something the RIAA does on a regular basis) the wires leading from a phonograph's cartridge through the amplifier to the speakers are transiently storing a portion of the copyrighted signal.
The higher the technology, the sharper that two-edged sword.
I'm well aware of section 117. It was a direct response to the holding that a copy in RAM is a copy of the program. But I disagree that it applies to an MP3 file. The canons of statutory construction would require you to give the term "program" its ordinary meaning in most cases. So if you're in court arguing the "spirit of the law" (or in other words, begging the court to exercise its equitable powers), you've pretty much already lost the case. And the law is full of "fuzzy lines" where we are required to (and do) classify things. I think MP3s fall firmly on the "data" side of the line, even if it's sometimes fuzzy. And finally, even if you somehow manage to convince a judge that section 117 applies to an MP3, it expressly only applies to the "owner of a copy." If you downloaded an MP3 illegally (which is what the GP was talking about), you are not the owner of that copy. So section 117 does not apply to you.
Today's Sesame Street was brought to you by the number e.
Their program scans for anything with an mp3 extension. It finds this. Hey look, it's not music. Look how that would turn out.
The fact that we typically view pdfs and mp3s as data vs programs is really, at the technical level, pretty arbitrary. Its not hard to imagine that we could build a machine that ran either as "programs".
Don't forget that some files almost always considered as data -- PostScript files -- literally are programs. They cannot be viewed or printed without being executed.
There are, of course, many other examples.
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If you were to take the fraction of a second of audio "stored" in the wire between the stylus and the amp, and the amp to the speakers only, would it be recognisable as a portion of the copyrighted work?
Would the 1.2s of audio stored in RAM be recognisable?
This question also would cause issues for any company which used anti-skip technology in a portable CD player (play from cache), up to 10 seconds of audio in a lot of cases. That would be MORE than recognisable.
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Someone plugs in their iPod to your system, you play their music off it, the iPod goes away with the music still on.
No copyright infringement.
Entry in a playlist.