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: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.