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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.'"

12 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 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.

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      Ray Beckerman +5 Insightful
  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 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.

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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.

  5. 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?
  6. 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.

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    Ray Beckerman +5 Insightful
  7. 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.

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    When information is power, privacy is freedom.
  8. 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.