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Court Rejects RIAA's Proposed Protective Order

kdawson posted more than 5 years ago | from the protective-of-whom-exactly dept.

The Courts 197

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.'"

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Whoa! (5, Funny)

Anonymous Coward | more than 5 years ago | (#28020555)

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

Re:Whoa! (0)

Anonymous Coward | more than 5 years ago | (#28020779)

Weird coincidence. I just wrote a song about my emotional experiences with Wolfram Alpha, and now the RIAA owns Wolfram Alpha!

Re:Whoa! (5, Insightful)

HermMunster (972336) | more than 5 years ago | (#28020789)

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.

Re:Whoa! (4, Insightful)

TinBromide (921574) | more than 5 years ago | (#28020819)

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.

Re:Whoa! (5, Funny)

Shadow of Eternity (795165) | more than 5 years ago | (#28021265)

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.

first (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#28020565)

hahaha, finally!

Re:first (-1, Troll)

Anonymous Coward | more than 5 years ago | (#28020619)

Failed again, cock gobbler.

Re:first (0, Offtopic)

actionbastard (1206160) | more than 5 years ago | (#28020651)

+5 Funny.

An educated judiciary (5, Insightful)

actionbastard (1206160) | more than 5 years ago | (#28020633)

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.

Re:An educated judiciary (1)

arbiter1 (1204146) | more than 5 years ago | (#28020665)

over last year or so, judges have started to be more educated on these case and not being blinded by the riaa's weak ass crap

Re:An educated judiciary (5, Informative)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#28020869)

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.

Re:An educated judiciary (4, Insightful)

actionbastard (1206160) | more than 5 years ago | (#28021019)

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.

Re:An educated judiciary (4, Interesting)

QuantumG (50515) | more than 5 years ago | (#28021049)

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:An educated judiciary (2, Funny)

martin-boundary (547041) | more than 5 years ago | (#28021813)

That would be like saying you can't assess the quality of a basketball player unless you understand exactly how he does his thing. You don't really need to understand copyright law before you can make a quality assessment.

Here's a simple suggestion if you want to compare lawyers: keep a set of win/lose statistics for all copyright cases, for each lawyer in this specialty.

Here's a simple suggestion if you want to ensure "fairness": Let both sides choose their lawyers, then have the judge flip a coin and swap the lawyers and clients pairings if the result is heads. That way, each side gets the best lawyers on average.

Re:An educated judiciary (4, Insightful)

anagama (611277) | more than 5 years ago | (#28022045)

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.

Re:An educated judiciary (0)

Anonymous Coward | more than 5 years ago | (#28021261)

Insightful, my ass. That's a criminal trial, moron. These are civil cases.

Wow, the RIAA is bad at this (5, Insightful)

TinBromide (921574) | more than 5 years ago | (#28020659)

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.

Re:Wow, the RIAA is bad at this (4, Funny)

TinBromide (921574) | more than 5 years ago | (#28020839)

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...

Re:Wow, the RIAA is bad at this (5, Interesting)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#28020883)

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:Wow, the RIAA is bad at this (3, Funny)

morgan_greywolf (835522) | more than 5 years ago | (#28020949)

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.

Is this your unofficial campaign announcement for federal circuit judge, Ray? I'd vote for you!

Re:Wow, the RIAA is bad at this (4, Insightful)

Zordak (123132) | more than 5 years ago | (#28021215)

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.

Re:Wow, the RIAA is bad at this (1)

Zordak (123132) | more than 5 years ago | (#28021237)

I guess while I'm being smug, I should be precise. Only one person gets to choose the judge, but the Senators still have to confirm him. But I'd like to see the nominee that this president can't get past this Senate.

Re:Wow, the RIAA is bad at this (3, Interesting)

belmolis (702863) | more than 5 years ago | (#28021385)

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:Wow, the RIAA is bad at this (4, Interesting)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#28021547)

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:Wow, the RIAA is bad at this (1)

Barny (103770) | more than 5 years ago | (#28021965)

Your likely right with the videos, and as for play-lists, I am guessing it makes finding deleted data a lot easier if you know the track name that will be neatly in the ID tag within the start of the file.

Means the person can be "done" not only for what they have on their computer, but what they had on their computer as well.

I am guessing it would be a pretty big thing to someone if, questionable, content were found on their drive, and they were told that it had been found, and would be entered into public court documents, might make a person real eager to settle a case.

My opinion of them just reached a whole new order of low, knowing that they have done such a thing, and of the legal system for letting that happen ;(

Re:Wow, the RIAA is bad at this (0)

Anonymous Coward | more than 5 years ago | (#28021689)

What do you think they were up to in trying to get access to videos?

Videos usually contain sound.

Re:Wow, the RIAA is bad at this (2, Interesting)

Runaway1956 (1322357) | more than 5 years ago | (#28022337)

"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 [boingboing.net]

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.

Re:Wow, the RIAA is bad at this (3, Interesting)

rozthepimp (638319) | more than 5 years ago | (#28021283)

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.

OK, now what... (5, Interesting)

weaponx71 (524109) | more than 5 years ago | (#28020693)

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... (4, Informative)

TinBromide (921574) | more than 5 years ago | (#28020757)

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).

Re:OK, now what... (2, Informative)

sumdumass (711423) | more than 5 years ago | (#28021183)

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

There is nothing in the copyright laws to date making downloading illegal. It all pertains to unauthorized copying and distribution outside of fair use (fair dealings in other countries).

This is something that has extremely irritated me about the **ia's for a long time. Now when you download something, you might be causing something to be copied but technically speaking, it's the distributor's system making the copy on demand.

Re:OK, now what... (1)

Zordak (123132) | more than 5 years ago | (#28021263)

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

Re:OK, now what... (4, Interesting)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#28021347)

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 [blogspot.com] 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... (4, Insightful)

ScrewMaster (602015) | more than 5 years ago | (#28021423)

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.

Re:OK, now what... (1)

Matrix2110 (190829) | more than 5 years ago | (#28022039)

..the wires leading from a phonograph's cartridge through the amplifier to the speakers are transiently storing a portion of the copyrighted signal.

Gonna be a bummer pulling the date/time logs out of that one!

Re:OK, now what... (1)

atraintocry (1183485) | more than 5 years ago | (#28022287)

Stop giving them ideas.

Re:OK, now what... (2, Interesting)

QuantumG (50515) | more than 5 years ago | (#28021651)

Yeah, there's earlier precedent that "copying into RAM" isn't making a copy for copyright purposes.. the DMCA even tries to make it explicit by saying that copies made in the normal running of a program are not copying for copyright purposes.. but this doesn't stop every fucking lawyer from trying to pull this shit every time they want to stop people from running programs in ways their client doesn't like. The recent abomination of Blizzard vs Glider is a prime example. The amble precedent and the explicit codification in law of "intermediate copies" being innocuous didn't stop the judge in that case ruling in favor of Blizzard. Watching copyright court cases and watching Texas Hold'em Poker is a similar experience, both a boring as hell until the end and all the commentators are no better than random guessers..

Re:OK, now what... (1)

Barny (103770) | more than 5 years ago | (#28021913)

Maybe it is time for "copy" to be amended to "persistent copy", and of course have persistent defined as specific circumstances (easy one would be "on power loss retains data" but a specific length of time, perhaps a percentage of the duration, would do in a pinch).

Re:OK, now what... (3, Informative)

RWarrior(fobw) (448405) | more than 5 years ago | (#28021983)

> > 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.

There is now a circuit split [wikipedia.org] on the issue. See M.A.I. Systems Corp. v Peak Electronics, [wikipedia.org] 991 F.2d 511 (9th Cir. 1993), where the appeals court held that a copy of software loaded into RAM does qualify as a copy under copyright law. While not related to music specifically, a good researcher might turn this case up and make your life miserable. The changes to the Copyright Act that overturned this decision provided an exemption for repair shops, but did not invalidate this interpretation of "copy."

As a side note, Peak Electronics was unable to appeal this to the Supreme Court because they ran out of money. I was on the staff at an electronics servicer's trade association [nesda.com] at the time.

Re:OK, now what... (2, Interesting)

vux984 (928602) | more than 5 years ago | (#28021439)

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

Check section 117 of the copyright act. It explicitly sanctions copies made to and from memory etc that are created 'as an essential step in the utilization'. So no, if you buy a copy of a program, you are sanctioned BY LAW to install it to the hard drive and run it in ram without needing express license from the rights holder. And its not a case of 'fair use' either, its a provision enshrined in the copyright act.

That said, section 117 specifically applies to 'computer programs'. But honestly 'computer program' is a pretty blurry target. After all, suppose I argue that an MP3 isn't a computer program because it must be 'played back' by another piece of software. But then, that is true of a python script or a .net application too.

And conversely the internal structure of an mp3 file is a series of mp3 headers and data blocks, this is analogous to a series of commands and the data they are to be acted on... which is pretty much what a computer program is.

The fact that we typically view pdfs and mp3s as data vs programs is really, at the technical level, pretty arbitrary. Its not hard to imagine that we could build a machine that ran either as "programs".

And I suspect that even without the "mp3s are programs too" argument, that MOST (not all, but most) people including legislators, judges, and juries, would all agree that the spirit of section 117 should apply to all digital media, not just 'computer programs' (whatever exactly that might be limited to).

After all, a modern CPU should be expected to make copies of the media in Level1, 2, 3 cache, and main memory, as well as some of it maybe ending up in swap, or on the disc during sleep/hibernate, or possibly DMA transferring it to buffers on the audio chipset to... and it does all this copying even if you play the song back directly from the CD. (And this series of copies might well occur if you play the disc on your bluray player or car audio deck instead of your PC too.)

And worse, in the process it transforms it from MP3 to WAV, and then applies some algorithm to turn the stereo into 6 channels for your 5.1 speaker setup... in other words it creates an unlicensed derivative work too... oh the horror. :)

In any case, I think we don't have to worry overly much about this.

Re:OK, now what... (2, Insightful)

Zordak (123132) | more than 5 years ago | (#28021561)

I'm well aware of section 117. It was a direct response to the holding that a copy in RAM is a copy of the program. But I disagree that it applies to an MP3 file. The canons of statutory construction would require you to give the term "program" its ordinary meaning in most cases. So if you're in court arguing the "spirit of the law" (or in other words, begging the court to exercise its equitable powers), you've pretty much already lost the case. And the law is full of "fuzzy lines" where we are required to (and do) classify things. I think MP3s fall firmly on the "data" side of the line, even if it's sometimes fuzzy. And finally, even if you somehow manage to convince a judge that section 117 applies to an MP3, it expressly only applies to the "owner of a copy." If you downloaded an MP3 illegally (which is what the GP was talking about), you are not the owner of that copy. So section 117 does not apply to you.

Re:OK, now what... (4, Interesting)

happyslayer (750738) | more than 5 years ago | (#28021391)

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.

Re:OK, now what... (4, Informative)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#28021513)

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.

Re:OK, now what... (1)

ScrewMaster (602015) | more than 5 years ago | (#28021867)

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.

Now, I find that remarkable. To be honest, at face value it doesn't speak well for the quality of representation those defendants had.

Re:OK, now what... (1)

RobertM1968 (951074) | more than 5 years ago | (#28022359)

Yes, but that still means nothing. I have a BitTorrent client (used for legal means to help seed Star Trek New Voyages episodes) that "shares" folders with outbound speeds from full connection speed to incremental values down to zero.

Thus, I can have my "shared" torrent folder, and have the outbound speed set to zero or something with a near equal sharing consequence.

A shared folder really means nothing. I could "share" my "shared" folder all day long at 0k outbound. What would I be guilty of sharing?

Something to consider...

That sounds reasonable... (1)

Sooner Boomer (96864) | more than 5 years ago | (#28020699)

Not having actually read any of Ray's excellent references he cites, the proceedure he outlines sounds reasonable. Just because a person stands accused in court (civil or criminal) does not mean they are automaticly guilty or that they should lose the protection of the law. In fact IMNSHO, they should receive greater protections. 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?

Re:That sounds reasonable... (2, Insightful)

Tanktalus (794810) | more than 5 years ago | (#28020871)

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?

IANAL, but it goes something like this: first, you hire a lawyer...

Re:That sounds reasonable... (1)

Sooner Boomer (96864) | more than 5 years ago | (#28021635)

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?

IANAL, but it goes something like this: first, you hire a lawyer...

But that's the whole point. I'm an engineer. I know more about computers than the judge does. I want to give reasonable, logical direction in a technical subject to the judge. Yes, there is probably some bias to my point of view, but it's up to the judge to determine the amount, and whether or not to believe my information. Since IANAL, I don't know whether the information in an amicus brief is evidence. I'm certainly not going to lie!

Re:That sounds reasonable... (1)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#28021703)

No, an amicus brief would not usually be the place to put in evidence of that nature, but there have been amicus briefs which discussed factual issues, such as social and economic conditions in society, and things of that nature, which were called "Brandeis briefs", named after late Sup. Ct. Justice Brandeis from his days as an appellate lawyer.

Re:That sounds reasonable... (5, Interesting)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#28020931)

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 [blogspot.com] and here [blogspot.com] .

Re:That sounds reasonable... (5, Funny)

Jah-Wren Ryel (80510) | more than 5 years ago | (#28021227)

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.

Re:That sounds reasonable... (4, Interesting)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#28021493)

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:That sounds reasonable... (0)

Anonymous Coward | more than 5 years ago | (#28022071)

Great! We can we can just cut-n-paste yours and fill it in with our own points.

No, then you'd be infringing on his copyright. :-)

In other news (0)

Anonymous Coward | more than 5 years ago | (#28020707)

people have started storing their music as ".mov" files for saft er quality.

Thoughts.... (4, Interesting)

cbiltcliffe (186293) | more than 5 years ago | (#28020719)

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:Thoughts.... (0)

Anonymous Coward | more than 5 years ago | (#28020775)

the md5 HASH will still be the same, regardless of the extension.

Re:Thoughts.... (2, Insightful)

Darkness404 (1287218) | more than 5 years ago | (#28020811)

Not really. I can take the same CD and have an infinite amount of MD5 hashes due to the file format (for example a 96KBS MP3 will be different than a 256Kbs MP3, a 96KBS OGG will be different too, etc). But as another poster said, most forensics software looks at the header and can quickly determine the file.

Re:Thoughts.... (2, Insightful)

actionbastard (1206160) | more than 5 years ago | (#28021041)

Simply changing the ID3 info for the file will change the hash.

Re:Thoughts.... (1)

drinkypoo (153816) | more than 5 years ago | (#28021329)

It would be trivial enough and in fact make more sense to checksum the mp3 data sans id tag.

Re:Thoughts.... (5, Informative)

TinBromide (921574) | more than 5 years ago | (#28020781)

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.

Re:Thoughts.... (0)

Anonymous Coward | more than 5 years ago | (#28020947)

Modern Operating Systems look at the first 4 bytes of a file and can tell you what kind of file a piece of data declares itself as.

Fixed that for you.

Re:Thoughts.... (0, Flamebait)

Gothmolly (148874) | more than 5 years ago | (#28021011)

"some forensic software" = the 'file' command

How are you other than -1, Retarded ?

Re:Thoughts.... (4, Insightful)

cbiltcliffe (186293) | more than 5 years ago | (#28021027)

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.

Re:Thoughts.... (5, Insightful)

sumdumass (711423) | more than 5 years ago | (#28021267)

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.

Re:Thoughts.... (1)

stonewallred (1465497) | more than 5 years ago | (#28022351)

Truecrypt all your music files, and then what? If the guy can't read the data, how is he going to know what it is.

Re:Thoughts.... (3, Insightful)

Zordak (123132) | more than 5 years ago | (#28021301)

It's not the forensic expert looking at the files. It's an automated tool. Carried to its extreme, the same logic would say the tool can't look at the filename. The tool has to look at all the files. The person only gets to look at the ones that are music files.

Re:Thoughts.... (1)

Captian Spazzz (1506193) | more than 5 years ago | (#28021595)

Am I the only one who knows what a hidden encrypted partition in TrueCrypt is?!

Re:Thoughts.... (2, Interesting)

CountOfJesusChristo (1523057) | more than 5 years ago | (#28020807)

I just tried this on Ubuntu, and the file was still recognized (mime-type definitions include more than file extensions in Linux, such as file headers, etc). So if they're booting into a Linux live session, this would presumably fail as an evasive technique.

Re:Thoughts.... (1)

CountOfJesusChristo (1523057) | more than 5 years ago | (#28020917)

As a followup, here is the mime-type definition for mp3 found (on Ubuntu) in /usr/share/mime/packages/freedesktop.org.xml, with some language aliases omitted.

<mime-type type="audio/mpeg">
<comment>MP3 audio</comment>
<alias type="audio/x-mp3"/>
<alias type="audio/x-mpeg"/>
<alias type="audio/mp3"/>
<magic priority="50">
<match value="0xfffb" type="big32" offset="0"/>
<match value="ID3" type="string" offset="0"/>
</magic>
<glob pattern="*.mp3"/>
<glob pattern="*.mpga"/>
</mime-type>

So in addition to using file extensions, it also seems to be looking for a header value and a string containingn "ID3" at specific locations. Now if you wanted to write your own mp3 decoder (or modify a FOSS one) that would work properly with these values absent...they'll just find it some other way. Probably better to get something liek TrueCrypt, provided you can not be compelled to reveal the passwords.

Re:Thoughts.... (1)

cbiltcliffe (186293) | more than 5 years ago | (#28021043)

But using Linux would violate the court order, because it would examine every file on the machine, rather than just music files.

Re:Thoughts.... (2, Interesting)

nextekcarl (1402899) | more than 5 years ago | (#28021121)

Would it really? I mean, even a simple search for *.mp3 would technically look at every single file, it just responds with the ones that have that extension. So greping through the first 4 bytes over every file isn't really that different. Yes, you have to open the file, rather than just looking at the inode (or equivalent) but I doubt a judge would see it differently if an "expert" said this was the only way (though I suppose the defendant's expert witness could argue differently. I doubt the judge would really understand the difference as most people haven't the foggest as to what the diff is.

Re:Thoughts.... (1)

Alarindris (1253418) | more than 5 years ago | (#28021353)

)

You dropped this.

Re:Thoughts.... (1)

nextekcarl (1402899) | more than 5 years ago | (#28021679)

I was wondering where that went!

Re:Thoughts.... (1)

shentino (1139071) | more than 5 years ago | (#28021059)

Shuddap...don't give them IDEAS man!

Re:Thoughts.... (1, Informative)

Anonymous Coward | more than 5 years ago | (#28020815)

Silly old fashioned Windows. Use file [wikipedia.org] to get the file type and don't be silly about such things as file extensions.

Re:Thoughts.... (1)

cbiltcliffe (186293) | more than 5 years ago | (#28021053)

But the file command examines the file.
If it's a music file, they're fine.
If it turns out it's not a music file, they've violated the court order.

Re:Thoughts.... (2, Insightful)

eosp (885380) | more than 5 years ago | (#28021775)

echo > ~/this-is-an-illegal-music-file.mp3

Their program scans for anything with an mp3 extension. It finds this. Hey look, it's not music. Look how that would turn out.

Re:Thoughts.... (2, Insightful)

fuzzyfuzzyfungus (1223518) | more than 5 years ago | (#28020829)

Your general point, that a variety of techniques that would qualify as obfuscation or even steganography, could be used to evade this search is perfectly valid.

However, I don't think that "they can only examine music files" means what your post suggests. A file is just a collection of bits. To know what it is, or what it isn't, you have to examine at least part of it, there is no alternative. You can look at the file suffix, you can look at the magic numbers, you can look for distinctive attributes of a given file format, you can draw other inferences(Hmm, I see a "Black Sabbath" directory, with a "Paranoid" directory inside it and, inside that, 8 ".doc" files that have well formed ID3v2 tags... What a coincidence...).

Any file that doesn't appear to be music related would be inadmissible as evidence, and the forensics guy would be, arguably, guilty of misconduct if he poked any further than necessary to determine that a file isn't music; but it wouldn't stop him from checking each one. I'd be analogous to a court order to look for ransom notes you had written: Letters to your grandmother would be out of bounds; but that wouldn't mean that you could make anything inadmissible just by writing her address on the envelope.

Re:Thoughts.... (4, Funny)

T Murphy (1054674) | more than 5 years ago | (#28020879)

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!

Re:Thoughts.... (1)

cbiltcliffe (186293) | more than 5 years ago | (#28021063)

No, but C:\Data\Customer\BTL\SP\LSWD.ffm sure as hell doesn't look like it.

Re:Thoughts.... (2, Interesting)

Repton (60818) | more than 5 years ago | (#28021191)

So, you're going to give your music files obfuscated names and locations? You'd better not import them into WMP or iTunes or any other media player with a database, otherwise the investigators will just look there to find out where the files are. Better clear your "recently played" lists from your media player, too, and take any shortcuts off your desktop.

...I mean, WTF? How much value do you put on your time and frustration? Just buy the bloody stuff already!

Re:Thoughts.... (1)

moderatorrater (1095745) | more than 5 years ago | (#28021677)

Not to be pedantic, but the judge just quashed the RIAA's attempt to be able to look at playlists.

Re:Thoughts.... (0)

Anonymous Coward | more than 5 years ago | (#28022361)

Just buy the bloody stuff already!

What legal protection is afforded by the purchase of a $1 song? Do I need to save my receipt for 54 years? 154 years? Forever?

Re:Thoughts.... (1)

jonwil (467024) | more than 5 years ago | (#28020901)

If the expert is only allowed to look for music files, store your music as video clips with empty/blank video streams.
Such files would even play on iPhones and iPods touch/video/classic/nano
Should be easy to rig up a patch to FFMPEG that can convert a MP3 file into an AVI or MPEG container with MPEG layer 3 audio and an empty video stream in whichever codec will produce the smallest filesize (and is supported on your player/portable device of choice). Should even be possible to have it done without re-compressing the MP3 (so no loss of quality)

Since the files would have .mpg or .avi extension and would have MPEG/AVI signatures, even if the expert ran a signature check to look for MP3 audio files stored with another name by searching for the signature that specifies it as a MP3 file (I don't know if the court rules would allow this or not), they still wouldnt find any audio files.

Re:Thoughts.... (1)

cbiltcliffe (186293) | more than 5 years ago | (#28021085)

Until the MPAA comes looking..... :)

Re:Thoughts.... (1)

beav007 (746004) | more than 5 years ago | (#28021091)

Unfortunately, you'd probably lose ID3 information, but other than that, not a bad idea.

Re:Thoughts.... (1)

blueg3 (192743) | more than 5 years ago | (#28021551)

Booting the Windows install on the hard drive may well be within their bounds, and it's certainly within technical limitations.

Anyway, it's enormously unlikely that using an automated tool to examine all files' data to determine if they are music or not would qualify as "looking at" non-music files.

Re:Thoughts.... (0)

Anonymous Coward | more than 5 years ago | (#28021583)

Dear cbitcliffe

Thank you for your testimony, it will be useful to the RIAA when they appeal the court's order, as it shows exactly why a thorough forensic examination is necessary. Your expertise is appreciated.

Re:Thoughts.... (0)

Anonymous Coward | more than 5 years ago | (#28022079)

blah .. what the hell software are these "experts" using?

find / -type f -exec file {} \; | grep Audio .. and you'll find most of whatever you're looking for. Yes, there are tools that will do block/byte level analysis beyond the first 4 bytes. And, yes you can use encrypted file systems (much easier in *IX). BUT, bottom line is you shouldn't NEED to rename or encrypt anything. We should not be subjected to such fishing expeditions in the first place. Adhere to the laws as we all know they were intended to be interpreted and leave the academic arguments over semantics to classrooms.

We all know this is bullshit. We shouldn't need to enact new laws or add new clauses for how it _became_ bullshit, that is irrelevant. It is STILL BULLSHIT.

At what point.... (1, Interesting)

Darkness404 (1287218) | more than 5 years ago | (#28020769)

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?

Re:At what point.... (4, Informative)

krlynch (158571) | more than 5 years ago | (#28020835)

It's covered as a "derivative work" [wikipedia.org] , 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.

Re:At what point.... (1)

Darkness404 (1287218) | more than 5 years ago | (#28020881)

But it still makes no sense. Its like buying a book, smudging the ink, making a copy of that, etc, until it is virtually unreadable. For example, lets say the phrase "I ate a cookie" is under copyright. I doubt that saying "I ate a cook" would be infringing on the phrase. Similarly "I ate" wouldn't be infringing on the phrase. Lets take this another step further and say I have a program that randomly picks A noun, past tense verb, a or an and another noun. And lets say it comes up with the phrase. Is that infringing it too? You see, its quite hard to randomly make an entire song, but when lawsuits are reached because of simple elements that could be randomly generated via aid of a computer, the lack of a solid MD5 sum or way of checking the real file, can lead to accidental infringement to the point where it makes no sense to prosecute based off impossible evidence. Essentially theres no way to prove, without a doubt that Brittney_spears.mp3 is really the newest Brittney Spears song. Sure, there may be hints, but in today's digital age it lacks solid evidence that can pass without reasonable doubt.

Re:At what point.... (1)

Ren Hoak (1217024) | more than 5 years ago | (#28020959)

If a jury listens to the original, and then listens to what you're pondering might no longer be the same, and concludes they're the same... time to open your wallet?

Re:At what point.... (1)

Dun Malg (230075) | more than 5 years ago | (#28021245)

Going by memory, but I recall reading something from an early music copyright case that was something along the lines of "if 15 percent of the notes match" it's infringing...

I can't seem to find any on google of it though...

Re:At what point.... (0)

Anonymous Coward | more than 5 years ago | (#28022121)

So an evasive technique might be to record yourself singing the songs without any of the original recordings and just name the files the same as the copyrighted files.

English? (1)

Hatta (162192) | more than 5 years ago | (#28020957)

What's all that mean in English?

Wow! "Metadata"! (4, Interesting)

Bob9113 (14996) | more than 5 years ago | (#28020965)

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:Wow! "Metadata"! (1)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#28020973)

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. :)

Let us hope that that is the case.

When the court and plaintiff clash... (2, Insightful)

erroneus (253617) | more than 5 years ago | (#28021077)

It never bodes well. I remember when Microsoft was giving the EU court hell behaving as if it were a US court where they can appeal everything ad infinitum and eventually end up with whatever they want AND an official apology to boot.

But here it's the plaintiff and the court butting heads. I'm not a lawyer... definitely not. But I have got to say, that when you give the people who are making a decision either for or against you a difficult time, it can't be terribly wise... it just can't be. Even the lay-people know the courts systems aren't completely fair. What manner of arrogant do you have to be to behave in this way?

Re:When the court and plaintiff clash... (2, Funny)

gordguide (307383) | more than 5 years ago | (#28022125)

" ... Even the lay-people know the courts systems aren't completely fair. What manner of arrogant do you have to be to behave in this way? ..."

Why, that would be "RIAArogant.

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