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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.'"
SO, someone scans the drive, maybe comes across a few music files. They log said files and each file might have meta data information. But what about file sharing data? Does the fact that I have uTorrent ensure a copyright infringement or me a distributor? Do such programs keep logs of all the files shared or distributed? And what would be in the meta data that would also label me as the above mentioned. If any music files WERE found then if you can produce the original disk great, if not then your up the creek with out a paddle I guess. I am glad to see the RIAA not get their way on this front. Letting them choose the company would have been WAY out of line and far to great a possibility of abuse. Also glad to see a court that actually seems like it knows what it is doing.
If they're only allowed to examine music files, then what if:
You came up with your own file extension (eg. .ffm - file for music) and renamed all your mp3's to .ffm.
Then, configure Windows to open .ffm files with WMP, Mediamonkey, or whatever.
A forensics expert isn't going to have the option of booting the Windows install on the HD, and since .ffm isn't a standard music file, and they can only examine music files, you've just completely hidden all your music from investigation.
Not secure, by any means, but I can't see how they'd get any evidence without breaking the court order.
And then, you can prove they broke the court order, because everything they claim was an mp3 file was examined thinking it wasn't an mp3 file.
Interesting, no?
"City hall" in German is "Rathaus" Kinda explains a few things......
At what point does a song lose copyright? For example, lets take an artist who has not legally released any music for digital downloads only for CDs. Because an MP3 of the song sounds different than the CD version can you argue that copyright has truly been violated? Or lets say that MP3 was then transcoded with some loss of quality, at what point can it be said that it wasn't the original recording? The case is rather cut and dry with purchased music (everything sold on iTunes is the same file minus some metadata) but with ripped music, there can be significant differences. Also, with metadata what happens if you legally obtain a copy of a good cover of a song by a different band, label it as the original band, can they then get you for copyright infringment based on the fact they can sue for a low-quality MP3?
Taxation is legalized theft, no more, no less.
Any lawyer that can't come up with a production order that sticks to court ordered criteria should be sanctioned on the spot.
I agree with you. I would come down very hard on attorneys who try to game the system as the RIAA's attorneys do, were I a judge.
Ray Beckerman +5 Insightful
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?
There's no such thing as boilerplate, the way I look at it. Legal documents have consequences, and need to be drafted with reference to the situation at hand. I have actually submitted an amicus brief, and a revised amicus brief, in this very case, on the subject of the due process evaluation of the RIAA's statutory damages theory. Here and here.
Ray Beckerman +5 Insightful
A judge used the term "metadata" correctly. That is a good technical concept to grasp. We geeks and our friends like NYCL (who may also be a geek - not trying to exclude) have been bandying it about for years, but to 99% of the population it is a pretty foreign term.
Each example like this implies that the judicial is growing more familiar with technical concepts. That makes me happy. :)
Stop-Prism.org: Opt Out of Surveillance
Ya.. except that these are civil cases and so there is no court appointed lawyers.. As for judges telling you that you've got shit representation, that would require some kind of objective measure of copyright lawyer quality and seeing as no-one understands copyright law, not even the judges, that aint gunna happen.
How we know is more important than what we know.
Regarding your comments re the filings of RIAA lawyers, the oldest /. expression comes to mind - "You must be new here". The unbelievable filings of HRO, Dwyer & Collora, and their predecessors over the last few years leads to the conclusion that there are a lot more bottom feeder law firms out there than anyone in the practice of law would like to admit.
As someone who left the law profession a few years ago, I can say now that IANAL, but the inane motions/filings on behalf of the record company plaintiffs truly stagger the imagination.
As far as I can tell, the only qualification to act as a plaintiff lawyer in these cases is that the you must suck it up and write as dictated by Matt Oppemheim. So the law firm must balance their reputation and bad PR against the fees.
What do you think they were up to in trying to get access to videos? I can imagine why they might want to see playlists, but videos can't possibly bear on the RIAA's case since they don't represent video owners. Are they in cahoots with the MPAA? Fishing for something embarassing ("The defendant is obviously a scumbag: we found 'Debbie Does Dallas' on her hard drive.")?
There's no such thing as boilerplate, the way I look at it. Legal documents have consequences, and need to be drafted with reference to the situation at hand. I have actually submitted an amicus brief, and a revised amicus brief, in this very case,
Great! We can we can just cut-n-paste yours and fill it in with our own points.
Thanks for bringing a smile to my weary face. You deserved your "Funny" mod.
Ray Beckerman +5 Insightful
What do you think they were up to in trying to get access to videos? I can imagine why they might want to see playlists, but videos can't possibly bear on the RIAA's case since they don't represent video owners. Are they in cahoots with the MPAA? Fishing for something embarassing ("The defendant is obviously a scumbag: we found 'Debbie Does Dallas' on her hard drive.")?
That's an easy one:
1. Fishing (maybe they can find some music videos, maybe they can find something the MPAA can use, etc.)
2. Blackmail (in a Tennessee case they got a copy of the guy's hard drive, were allowed to rummage through it, found some legal but pornographic videos, and used them to blackmail him into a settlement).
Ray Beckerman +5 Insightful
"Are they in cahoots with the MPAA?"
Belmolis, there is at LEAST one blonde in your immediate family? And, you are having a blonde moment, right?
That top-secret ACTA treaty that Obama refuses to allow the public to see? Guess who DOES get to see it? http://www.boingboing.net/2009/03/14/partial-list-of-corp.html#previouspost
Basically, every inbred fool with a few million dollars worth of "Intellectual Property" is allowed input in this treaty, but the common man, and human rights activists seeing the same treaty would be bad for national security. Yes, all the inbreds are sleeping with each other.
"Windows is like the faint smell of piss in a subway: it's there, and there's nothing you can do about it." - Charlie Br
Ray, something else to add to your arsenal (I mentioned here elsewhere). The existence of a "shared" directory does not mean anything was or could be shared with various BitTorrent clients. Various I have used require a shared directory set, but then allow a user to either (a) not actively share it (it exists, it can be shared later, but it isnt currently being shared), or (b) set the upload rate to zero while still "sharing" it (ie: aint gonna do a thing at 0bps even though it is "shared").
Methinks in many cases, the **AA should thus not be able to rely on the existence of a shared folder (and/or it's contents) as any sort of indication of sharing. And of course, as you have probably already thought of, even if shared, it gives no indication that the files in question were in such a folder when it was being actively shared.
I'd think the most the RIAA could prove from a shared folder is that the folder exists, it has certain content in it and... hmmm... well, that's it without actual proof that the torrent client actually shared anything.
StarTrekPhase2 - The Five Year Mission Continues!
You know, I can't help wondering if if Judge Gertner is following NYCL's blog and taking notice of some of the more insightful comments there?
N.B. this user is far too lazy to write a witty and intelligent sig.
Doesn't RICO cover blackmail?
Plus all their lying in court can easily count as fraud.
That makes 2 out of 35 crimes, giving green light for RICO?
It is not nonsensical to require a plaintiff to consider possible affirmative defences a defendant may raise any more than it is to require a public prosecutor to consider constitutional and facial defences a defendant may raise at trial. It is not a coincidence that the rules with respect to these are similar and similarly numbered in the federal civil and criminal procedures.
Unfortunately in the U.S. system there is little impediment to bring a suit that does not even pass a laugh test with respect to affirmative defences, even in copyright law. Likewise, there is little deterrence against criminal prosecutions that clearly would not pass constitutional muster. A good attorney helps the adversarial system minimize cost to a defendant in these cases, but the defendant is not left whole for the most part after final judgment, and may face enormous and unsustainable costs reaching that point.
In some common law jurisdictions it is becoming common for the courts to assess all costs against a plaintiff who performed an unsatisfactory analysis with respect to affirmative defences even if the parties have an agreement with respect to costs in the case.
In general, parties who desire to be protected on costs should make adequate offers and respond to reasonable ones; parties should not be penalised on costs for not responding to clearly inadequate offers, nor should they be penalised on costs if their reasonable offers are rebuffed.
A party which causes the other parties and the court to incur costs unnecessarily should be penalised on costs, even if successful. Unnecessary costs begin with the filing of a suit wherein there is an insufficient analysis of affirmative defences. In copyright infringement cases, this means that the plaintiffs attorneys have a duty to the court and to their client to perform an adequate fair use analysis before proceeding.
Obviously some attorneys disagree with -- or are ignorant of -- this, and certianly NYCL has had some choice things to say about the attorneys for the plaintiffs in the music indurstry v the people cases with which he is au fait.