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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.
Sig this!
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 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?
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......
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.
Today's Sesame Street was brought to you by the number e.
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.
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.
Pirate Party UK