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Court Rejects RIAA's Proposed Protective Order

Posted by kdawson on from the protective-of-whom-exactly dept.

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.'"

31 of 197 comments (clear)

  1. Whoa! by Anonymous Coward · · Score: 5, Funny

    I typed some queries for lyrics into Wolfram alpha, and now they have to fight the RIAA!!

    1. Re:Whoa! by HermMunster · · Score: 5, Insightful

      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.
    2. Re:Whoa! by TinBromide · · Score: 4, Insightful

      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?
    3. Re:Whoa! by Shadow+of+Eternity · · Score: 5, Funny

      This man speaks the truth. With the exception of evidence a civil case is literally "He did X Y Z and it hurt me!" on one side and "Didn't do X, don't know anything about Y, Z's their fault" on the other side.

      Or alternatively you could imagine two four year olds fighting but very well dressed.

      --
      A bullet may have your name on it but splash damage is addressed "To whom it may concern."
  2. An educated judiciary by actionbastard · · Score: 5, Insightful

    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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    Sig this!
    1. Re:An educated judiciary by NewYorkCountryLawyer · · Score: 5, Informative

      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.

      This judge seems to be much more on top of the legal issues than she was in the early years. For 4 years she presided over uncontested cases. Then when some lawyering finally appeared for a couple of Boston University students named as "John Doe" defendants, and briefed some of the flaws in the RIAA's cases, the judge seemed to become more vigilant. It all proves the point that we have an adversarial system; the judges usually rely on zealous, competent lawyering from both sides. When one side can't afford to get good legal representation, the judge doesn't get to see the whole picture.

      There have been a couple of judges who refused to rubber stamp the RIAA's chicanery --Judge Arterton in CT, Judge Brewster in CA, Judge Kelley in VA, Judge Otero in CA, and several judges in Austin TX come to mind -- but usually it doesn't work that way.

      --
      Ray Beckerman +5 Insightful
    2. Re:An educated judiciary by actionbastard · · Score: 4, Insightful

      When one side can't afford to get good legal representation, the judge doesn't get to see the whole picture.
      True. However, one of the primary responsibilities of any member of the bench is to see that the rights of the accused are protected, above all else. "Better to see ten guilty men go free than to see one innocent man convicted." Those that fail to do so are not upholding their responsibilities and will be either reversed on appeal, or should removed from the bench. It is entirely within the discretion of any judge to bring to the attention of the accused that they might not be properly represented and that they should seek better counsel; even if their lawyer is one appointed by the court.

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      Sig this!
    3. Re:An educated judiciary by QuantumG · · Score: 4, Interesting

      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.
    4. Re:An educated judiciary by anagama · · Score: 4, Insightful

      To be fair, you can't judge all lawyers by a metric as simple as win/lose. Some lawyers take on cases that they are almost certainly going to lose, maybe many such cases for many years, in an attempt to change the law itself or for reasons such as fairness. Such lawyers may be quite excellent, yet have a quite pitiful win/lose ratio. For example, the civil rights movement certainly involved many worthy cases destined to lose against unjust laws. The lawyers who fought those battles weren't bad lawyers simply because they lost -- they didn't have a snowball's chance of winning. It's a rare person who'll put their heart into a fight knowing they'll be savaged in the end merely because it is the right thing to do.

      Even in very well settled and not terribly controversial areas of the law, there are certain types of cases which are simply more likely to be lost. For example, criminal defense. Many excellent lawyers lose many cases in such a practice. By the same token, if a prosecutor loses many cases, you have to wonder about his/her skill.

      --
      What changed under Obama? Nothing Good
    5. Re:An educated judiciary by tebee · · Score: 4, Interesting

      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?

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      N.B. this user is far too lazy to write a witty and intelligent sig.
  3. Wow, the RIAA is bad at this by TinBromide · · Score: 5, Insightful

    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.

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    Is it sad that I am more likely to recognize you and your posts by your sig than your name or UID?
    1. Re:Wow, the RIAA is bad at this by TinBromide · · Score: 4, Funny

      PS, its sad that I was modded funny, but my post wasn't written to be funny. I guess that's just the state of things with the RIAA where a semi-lay person's translation of an asinine situation gets modded funny...

      --
      Is it sad that I am more likely to recognize you and your posts by your sig than your name or UID?
    2. Re:Wow, the RIAA is bad at this by NewYorkCountryLawyer · · Score: 5, Interesting

      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
    3. Re:Wow, the RIAA is bad at this by Zordak · · Score: 4, Insightful

      That's cool, except there's only one vote that counts when electing a federal judge. And the evidence points to him being pretty firmly in the pocket of Big Media.

      --

      Today's Sesame Street was brought to you by the number e.
    4. Re:Wow, the RIAA is bad at this by NewYorkCountryLawyer · · Score: 4, Interesting

      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).

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      Ray Beckerman +5 Insightful
  4. OK, now what... by weaponx71 · · Score: 5, Interesting

    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.

    1. Re:OK, now what... by TinBromide · · Score: 4, Informative

      Digital forensics is a touchy mistress. The best they can come up with is uTorrent or other filesharing client data, i.e. you can read in the registry or configuration files where the shared folder is. If files are in the shared folder, you can say they were being shared. Some really nice (for forensics analysts) software keeps a log of when the software was started and shut down, if the creation time of a file falls within the log, you can add up the time and say that the client distributed that file for the duration that the logs said the software was active. Its up to the plaintiff to disprove that allegation, but he said she saids very rarely end up in court the way you'd think.

      You can also find all the .torrent files and say that those files were downloaded, and uploaded as a side effect of how p2p software works. I think that the playlists and other info has nothing to do with the case at hand. If someone says they rip all of their CDs to their computer and has the hard copies (or receipts) to prove it, there is nothing the RIAA can do. However, if the remnants of file sharing data (share ratios, shared folders, seed status, etc) says that they ripped songs and then shared them, the plaintiffs may be in trouble.

      Remember, the RIAA may be saying that downloading is illegal, but they're prosecuting based on unauthorized distribution laws (uploading).

      --
      Is it sad that I am more likely to recognize you and your posts by your sig than your name or UID?
    2. Re:OK, now what... by NewYorkCountryLawyer · · Score: 4, Interesting

      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.

      --
      Ray Beckerman +5 Insightful
    3. Re:OK, now what... by happyslayer · · Score: 4, Interesting

      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.

      --
      Never confuse movement with action. --Hemingway
    4. Re:OK, now what... by ScrewMaster · · Score: 4, Insightful

      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.
    5. Re:OK, now what... by NewYorkCountryLawyer · · Score: 4, Informative

      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.

      Thing is, the RIAA's "junk science" never gets challenged. Here are the statistics for ~40,000 cases:

      1. Number of times the RIAA's "investigator" and sole witness has been deposed: 0

      2. Number of times the RIAA's expert witness has been deposed: 1.

      --
      Ray Beckerman +5 Insightful
  5. Thoughts.... by cbiltcliffe · · Score: 4, Interesting

    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......
    1. Re:Thoughts.... by TinBromide · · Score: 5, Informative

      Oldest trick in the book. Change .jpg files to .doc or .xyz and the FBI won't think to look for your CP in those extensions? Not exactly. Modern forensics software looks at the first 4 bytes of a file and can tell you what kind of file a piece of data declares itself as. If you change one or all of those bytes but some forensic software can do a data-carving and pull out multi-media data from a hard drive, revealing all of your miley cyrus mp3s.

      --
      Is it sad that I am more likely to recognize you and your posts by your sig than your name or UID?
    2. Re:Thoughts.... by T+Murphy · · Score: 4, Funny

      renamed all your mp3's to .ffm

      They violated the court order, your Honor- there is no way they could have known C:\music\Beatles\Sgt._Peppers_Lonely_Hearts_Club_Band\Lucy_in_the_Sky_With_Diamonds.ffm was a music file!

      --
      My webcomic
    3. Re:Thoughts.... by cbiltcliffe · · Score: 4, Insightful

      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......
    4. Re:Thoughts.... by sumdumass · · Score: 5, Insightful

      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.

  6. Re:At what point.... by krlynch · · Score: 4, Informative

    It's covered as a "derivative work", transcoding is clearly a derivative in this sense, and you would be screwed :-)

    17 U.S.C. Â 106) provides:

            Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies...; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies...of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending....

    It is hard to see how transcoding or quality degradation would satisfy any of the "transformation" or "fair use" exceptions.

  7. Re:That sounds reasonable... by NewYorkCountryLawyer · · Score: 5, Interesting

    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
  8. Wow! "Metadata"! by Bob9113 · · Score: 4, Interesting

    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. :)

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    Stop-Prism.org: Opt Out of Surveillance
  9. Re:That sounds reasonable... by Jah-Wren+Ryel · · Score: 5, Funny

    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.

    --
    When information is power, privacy is freedom.
  10. Re:That sounds reasonable... by NewYorkCountryLawyer · · Score: 4, Interesting

    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.

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    Ray Beckerman +5 Insightful