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.'"

Comments

OK, now what...

[weaponx71]

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.

Re:OK, now what...

[NewYorkCountryLawyer]

When you load it into RAM, you have made a copy for purposes of copyright law.

That is simply not true. See, e.g. the Cartoon Networks which held that copies in RAM and buffered for 1.2 seconds were not in RAM for a long enough period to be considered "copies" under the Copyright Act. I personally think that copies which exist only in RAM should not be considered copies at all, but we would need the Supreme Court to reach that question to know for sure.

Re:OK, now what...

[happyslayer]

Here, here. As someone else who works with digital forensics, I agree--it's a "touchy mistress" that has been abused all to hell in the RIAA cases. As a casual observer to the whole *IAA thing, it looks as if they were pushing sloppy, shoddy work on the court as an airtight case...and it's catching up with them.

Since the standard practices of digital forensics are fairly common, accepted, and (to techies) obvious, you would think that they would take the time to do the job right, push through those cases that cemented their reputation as solid litigators; their reputations would have preceded them, and they could have had a few big-time early successes to browbeat future defendants.

Instead, my horseback opinion is that they decided to go for quantity over quality. Judges and defendants rolled over under a wave of "techie-stuff", because it sounded good. But Media Sentry (or whatever they are calling themselves now, or whomever the RIAA is using), kept getting caught doing short-cut work, and the plaintiffs kept running with it (probably knowing it was crap.

Now, everyone is getting comfortable with terms like "forensic copying," "hashes", "ip addresses", and "p2p software." And those previous cases are looking weaker and weaker.

Sorry for the rant; as someone who works in the evidence field (and takes pride in doing it right--not fast or biased), I applaud NewYorkCountryLawyer's work on this, and I'm glad a lot of bad courtroom maneuvering is getting exposed.

Thoughts....

[cbiltcliffe]

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?

Re:Wow, the RIAA is bad at this

[NewYorkCountryLawyer]

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.

Re:That sounds reasonable...

[NewYorkCountryLawyer]

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.

Wow! "Metadata"!

[Bob9113]

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. :)

Re:An educated judiciary

[QuantumG]

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.

Re:Wow, the RIAA is bad at this

[rozthepimp]

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.

Re:Wow, the RIAA is bad at this

[belmolis]

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.")?

Re:That sounds reasonable...

[NewYorkCountryLawyer]

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.

Re:Wow, the RIAA is bad at this

[NewYorkCountryLawyer]

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).

Re:That sounds reasonable...

[RobertM1968]

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.

Re:An educated judiciary

[tebee]

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?