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Judge Says RIAA Can't Have Hard Drive

Zonk posted more than 7 years ago | from the quite-a-large-beast-to-be-jumping-through-hoops dept.

233

NewYorkCountryLawyer writes "A Texas judge has refused to allow the RIAA untrammelled access to the defendant's hard drive in SONY v. Arellanes. The court ruled that only a mutually agreeable, neutral computer forensics expert may examine the hard drive, at the RIAA's expense, and that the parties must agree on mutually acceptable provisions for confidentiality."

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This sounds like a good precedent (1, Insightful)

JWideman (1005353) | more than 7 years ago | (#16617208)

Could it mean an end to RIAA extortion in the near future?

Re:This sounds like a good precedent (2, Funny)

Anonymous Coward | more than 7 years ago | (#16617240)

I'll stick the RIAA with something hard....

Re:This sounds like a good precedent (4, Informative)

maeka (518272) | more than 7 years ago | (#16617416)

It just means that a court has ruled the plaintiff can't be the one examining the defendant's hard drive. Why it took so long for a judge to decide the one filing complaint isn't exactly a neutral party... maybe this is the first time someone has complained.

Re:This sounds like a good precedent (3, Insightful)

silverkniveshotmail. (713965) | more than 7 years ago | (#16617472)

Could it mean an end to RIAA extortion in the near future?
Are you that hard up for karma?

no, no, no, no. A judge saying that RIAA can't have the defendants hard drive does not mean that RIAA's crap is coming to a crashing halt.

Re:This sounds like a good precedent (3, Insightful)

ObsessiveMathsFreak (773371) | more than 7 years ago | (#16617606)

A judge saying that RIAA can't have the defendants hard drive does not mean that RIAA's crap is coming to a crashing halt.
It pretty much does consider the RIAA will now have to prosecute the case on the facts. A remotely full hardrive with a defrag scheduled every week is all the plausable deniability you need.

Re:This sounds like a good precedent (4, Insightful)

shmlco (594907) | more than 7 years ago | (#16618140)

Didn't we just have the story about the moron who wipped and defragged his drive after it was requested for examination? And judged guilty?

Want deniability? Just don't download the crap in the first place.

Re:This sounds like a good precedent (4, Interesting)

shmlco (594907) | more than 7 years ago | (#16618352)

And no, it's not flamebait, it's the truth. Want cheap music? Buy used CDs from the local record store or half.com for pennies on the dollar, and toss the disc into a box in the garage.

It's cheap, legal, and if you get accused just bring in the box and dump it on their desk...

Re:This sounds like a good precedent (1)

anagama (611277) | more than 7 years ago | (#16618466)

Didn't we just have the story about the moron who wipped and defragged his drive after it was requested for examination? And judged guilty?
And well he should have been. That sort of destruction of evidence, if the case goes to a jury, typically leads to an instruction to presume the evidence would have been against the destroyer's case.

Anyway -- you don't deserve a flamebait at all. It is also bothersome to see all the ways people think of to try to avoid being honest (this relates to the GP talking about "plausible deniability").

Re:This sounds like a good precedent (1, Funny)

Anonymous Coward | more than 7 years ago | (#16617750)

... duck season! FIRE!

Only because it's costs them real money up front (4, Interesting)

Alcimedes (398213) | more than 7 years ago | (#16617552)

Up until now the RIAA has been living off of lawyers who are working off of retainers. Now that they'll have to shell out a grand or so to "inspect" someone's hard drive for stolen works it should get interesting. How eager will they be to charge 100 people if each one is going to run them $1,000 up front?

Re:Only because it's costs them real money up fron (1)

drinkypoo (153816) | more than 7 years ago | (#16617924)

It won't. It will only cost them $1,000 if the person does not decide to just settle. They can still stick people with zillions of lawsuits, and just only take settlements, or court cases in which the defendant does not insist on the same treatment. Lots of people are probably happy to just hand it over :P

Re:Only because it's costs them real money up fron (2, Informative)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#16617942)

Now that this ruling has occurred, and has been made available publicly, most defendants who are represented by lawyers won't be handing anything over without a similar protective order.

woo, guess a few judges have read the law (5, Insightful)

swschrad (312009) | more than 7 years ago | (#16617210)

about time RIAA is held to the law.

Re:woo, guess a few judges have read the law (5, Informative)

owlicks58 (560207) | more than 7 years ago | (#16617544)

This isn't a matter of legal debate, it's simply compliance with the Federal Rules of Civil Procedure. In order to compel the defendant to produce the hard drive, the plaintiff (Sony) had to show that the information contained therein is relevant (under FRCP 26(a)). In this case it certainly was, as the court stated. The defendant brought up some legitimate concerns about privacy of documents not in dispute on the hard drive, and the judge agreed that to allow a mirror of the hard drive by Sony would be overly broad. This strikes a fine compromise between the concerns of both sides.

Re:woo, guess a few judges have read the law (4, Informative)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#16617700)

Yes, but the RIAA says this is the very first time this has happened to them. So I wouldn't diminish its significance. I predict that this decision will be the gold standard for future hard drive analyses in the RIAA v. Consumer litigations, and that the RIAA is not at all happy with it, since the RIAA's ability to manipulate the results of the analysis is greatly diminished. These are not the kind of lawyers that are on a quest for the truth.

A similar, slightly more restrictive, decision was handed down awhile back in Atlantic v. Andersen [riaalawsuits.us] in Oregon, but the RIAA fought it, kicking and screaming. The judge wound up letting the RIAA have the hard drive. They found nothing, but still haven't turned in their report and still haven't dropped the case either. Most likely they'll claim that Ms. Andersen, a disabled, impoverished woman who never even used file sharing in her life, switched the hard drives on them, as they're now claiming [blogspot.com] with Marie Lindor, a home health aide who has never even used a computer.

Re:woo, guess a few judges have read the law (2, Insightful)

thePowerOfGrayskull (905905) | more than 7 years ago | (#16618096)

Yes, but the RIAA says this is the very first time this has happened to them. So I wouldn't diminish its significance. I predict that this decision will be the gold standard for future hard drive analyses in the RIAA v. Consumer litigations, and that the RIAA is not at all happy with it, since the RIAA's ability to manipulate the results of the analysis is greatly diminished. These are not the kind of lawyers that are on a quest for the truth.
Isn't waht your implying enough to get the lawyers in question disbarred or at the very least censured? Do you really think that they've been willing to take that kind of risk on a regular basis?

Re:woo, guess a few judges have read the law (1)

mabhatter654 (561290) | more than 7 years ago | (#16618186)

lawyers get paid to argue their point by any means necessary within a hair's-breath of breaking the law. It's tolerated in court because the other side also has a lawyer doing the same thing... so we let them all be petty and cruel and live with it.. you never know when the other side is honest, or just a pathological lier.

Re:woo, guess a few judges have read the law (4, Informative)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#16618218)

I do believe that they have had communications with the hard drive experts which they have never disclosed to their adversaries, which they were required to disclose. They have an erroneous conception of (a) what communications with their experts are "privileged" and (b) what it means for a communication to be privileged. They think anything they're afraid of getting out there is privileged; the law doesn't agree with that. They think that if they think something is privileged it doesn't have to be mentioned at all; the law is that even if you think a communication is privileged, you are supposed to disclose its existence in a privilege log, and let your adversary know about it, and let the Court decide if it's privileged or not.

In UMG v. Lindor, they were supposed to disclose all documents concerning MediaSentry's investigation. They turned over some printouts MediaSentry had made, and a privilege log falsely claiming privilege [blogspot.com] for three engagement agreements between the RIAA and MediaSentry. They never turned over a single memo, email, invoice, letter, or any other form of communication between MediaSentry and the RIAA or its counsel. Do you really believe that there was no such communication? I don't.

I have seen a great deal of sharp practice and frivolous conduct by the RIAA's lawyers, and I do expect it to start catching up with them, now that a handful of litigants are starting to push back.

Re:woo, guess a few judges have read the law (1)

mabhatter654 (561290) | more than 7 years ago | (#16618258)

I could see some big money here being a "movie and music inspector" as well as a little precedent that could make the cases less destructive. This third party could make the court's job easier by allowing quicker access to the drive under more balanced conditions.. with an impartial third-party judges would accept the evidence more readily, and investigation would be more consistent for plaintiffs because this company would develop standards of inspection the court would sign-off on, the RIAA would be cut short asking for "everything" buy the court looking to expedite things.

Downside is that if you've got Kazza or other stuff installed and sharing you're nailed... but the third-party could probably mirror your drive and get you back running sooner rather than taking your whole kit every time.

Re:woo, guess a few judges have read the law (1)

QuantumFTL (197300) | more than 7 years ago | (#16617900)

about time RIAA is held to the law.

When you represent enough wealth/power, the you hold the law, not the other way around.

Re:woo, guess a few judges have read the law (1)

FST (766202) | more than 7 years ago | (#16617980)

In Soviet Russia... nevermind. Too easy.

Defendant's terms (5, Funny)

Firehed (942385) | more than 7 years ago | (#16617236)

"Okay, you guys can have the music back. Just let me keep the pr0n!"

Money can't buy love... (2, Insightful)

MachDelta (704883) | more than 7 years ago | (#16617272)

1) Buy/Pay-off "neutral expert"
2) Resume "business" as normal
3) ???
4) Profit!

Re:Money can't buy love... (4, Funny)

ClickOnThis (137803) | more than 7 years ago | (#16617466)

1) Buy/Pay-off "neutral expert"
2) Resume "business" as normal
3) ???
4) Profit!


5) Money trail is uncovered by journalist/FBI/whatever
6) ???
7) Prison!

Re:Money can't buy love... (2, Insightful)

42Penguins (861511) | more than 7 years ago | (#16617730)

7) Prison! You must be new here...

Re:Money can't buy love... (2, Funny)

Firehed (942385) | more than 7 years ago | (#16618006)

That's money buying "love" if I've ever heard of it.

Re:Money can't buy love... (1)

Kamineko (851857) | more than 7 years ago | (#16618278)

You never know, the RIAA might roll a double 6 and get the FBI/Journalist on their side by Some Nefarious Means.

Re:Money can't buy love... (1)

Travoltus (110240) | more than 7 years ago | (#16618554)

1) Buy/Pay-off "neutral expert"
2) Resume "business" as normal
3) ???
4) Profit!


5) Money trail is uncovered by journalist/FBI/whatever
6) ???
7) Prison!


8) Appeal case to the Supreme Court.
9) Judge Alito is sworn to the bench ahead of time.
10) ???
11) Conviction overturned!

Re:Money can't buy love... (2, Interesting)

TheRaven64 (641858) | more than 7 years ago | (#16618534)

I don't know about the USA, but in the UK things get interesting when one side calls an expert witness. If the BPI (the British version of the RIAA) call an expert witness who backs up their case then there is an assumption that the witness is biased, and the defendant is allowed to bring in their own expert. Ideally, both experts will agree on the evidence and it's then up to the court to interpret the evidence. If, however, the defendant doesn't bring their own expert then very little, if any, weight is given to the prosecution's expert.

Precedent - Probable Cause? (2, Interesting)

SonicSpike (242293) | more than 7 years ago | (#16617274)

So, does this shift things back to a higher level of probable cause now? Or is that even relevant in a civil case such as this?

Re:Precedent - Probable Cause? (4, Informative)

ari_j (90255) | more than 7 years ago | (#16617388)

No, probable cause is not relevant in a civil case. However, this does strike the balance that the Federal Rules of Civil Procedure are supposed to provide between a plaintiff's ability to use discovery procedures to get access to the evidence he needs to prove his case and the defendant's interest in keeping his private information private. This is a very common-sense decision that probably has no real precedential value (because it's what most lawyers agree on anyhow), and it's good to see a judge using the rules and common sense to tell the RIAA that it is just like any other plaintiff in any other case, and just because it can bully Congress around doesn't mean that it can ignore the civil procedure rules and bully a court or civil defendant around.

If this were a criminal matter, then things would be different.

Actual Rule (5, Informative)

ari_j (90255) | more than 7 years ago | (#16617564)

I checked the court's order here and it looks like Rule 26(c) was invoked, oddly by the plaintiff RIAA. Apparently the defendant refused to produce her hard drive and the RIAA claimed that a mirror image of it was necessary, and that any privacy concerns could be dealt with under a Rule 26(c) protective order. Normally, a plaintiff makes a motion under Rule 26(c), so this looks a tad unusual to me but it works. The judge did not explicitly rely on Rule 26(c) in making his order, but everything about the order says it's a Rule 26(c) order.

Rule 26(c) provides that, when certain prerequisites are met, "the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... that the disclosure or discovery may be had only on specified terms and conditions ...; that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters; [or] that discovery be conducted with no one present except persons designated by the court[.]" See the text of Rule 26 [cornell.edu] for more.

Long story short - like I said, the court is just applying the rules and common sense. The RIAA is going to kick and scream about it, but there's nothing out of the ordinary about what just happened. :)

Re:Precedent - Probable Cause? (1)

rHBa (976986) | more than 7 years ago | (#16617822)

IANAL so I'm probably missing something but...

Isn't there a good chance that the defendant will have removed any offending files from their hard disk by the time it gets looked at by the RIAA or the independant specialist? The general public (here in the UK anyway) are much more aware of how to securely erase data on a hard disk due to news items about identity theft from old discarded hard disks. Even if the defendant doesn't know about/how to secure erase stuff you'd have thought someone they know might have sugested it.

Re:Precedent - Probable Cause? (1)

honkycat (249849) | more than 7 years ago | (#16617874)

IANAL either and I haven't really read the details here, but I would imagine that the court has instructed the defendant not to tamper with the data. If there's evidence that it's been recently wiped, that'd probably get them in more trouble with the court than they risk with the RIAA.

Re:Precedent - Probable Cause? (1)

ari_j (90255) | more than 7 years ago | (#16617916)

Yep. There's more to securely erasing a file than erasing its contents. You have to completely erase evidence of its existence, including the hole that was left by its removal. A good computer forensics expert (and you can rest assured that the RIAA is hiring the best of the best in the private sector for this kind of thing) will be able to tell what you did.

Re:Precedent - Probable Cause? (0)

Anonymous Coward | more than 7 years ago | (#16618196)

>A good computer forensics expert (and you can rest assured that the RIAA is hiring
>the best of the best in the private sector for this kind of thing) will be able to tell what you did.

Not if you do it right.

Re:Precedent - Probable Cause? (1)

mOdQuArK! (87332) | more than 7 years ago | (#16617882)

You can get in _really_ big trouble with the court if the independent expert reports that you "scrubbed" your drive before turning it over to them. Same kind of reasoning where people get caught shredding documents or deleting emails AFTER the court has told them to hold onto that evidence. At the very least you'll get contempt-of-court punishments.

Re:Precedent - Probable Cause? (1)

rHBa (976986) | more than 7 years ago | (#16618020)

I guess it's hard to fool the experts but there's plenty of them reading this so would any of these work: 1. Give them the hard disk from another computer instead. If they ask for the whole box just give them your mums computer. 2. a.Delete offending files, b.scrub unused parts of the disk using a portable scrubbing app (so there is no trace of the app being installed), c.copy loads of files onto the blank part of the disk and delete them again, d.repeat step c as often as you can, e.defrag the disk to move stuff around a bit.

Re:Precedent - Probable Cause? (1)

mOdQuArK! (87332) | more than 7 years ago | (#16618228)

1. Most people don't have multiple computers that belong to themselves
    (and the expert is going to question why the computer that you were
    supposedly using seems to be set up for your mom or grandma, and
    all the email is addressed to them, etc).

    It's quite the PITA to set up a decoy computer which looks like it
    has been used by a real person (as anybody who's tried to run a
    honeypot is probably aware).

2a-e Better, but an expert will probably be able to point out the pattern
      of repeated copies & erases as evidence that you were trying to cover
      something up. And given the size of hard drives nowadays, you'd need
      a humongous amount of data to properly overwrite everything in a way
      that doesn't seem suspicious (and that amount of data is usually
      associated with the copyrighted music/videos that you are trying
      to hide :-)

IANAL, but actively committing perjury & destruction of evidence
to try and cover up a potential crime is probably going to hurt you
a LOT worse in the eyes of the judge & jury than any punishment you
might receive from the original case (although the way the
Congresspuppets seem intent on making the punishments for IP
violations so wildly out of proportion, that might not be true
anymore...).

Mutually (1)

nrgy (835451) | more than 7 years ago | (#16617296)

acceptable provision #1. Parties are here by allowed to browse all folders and sub folders contained on this harddisk so long as staying clear of the "PRIVATE DOCUMENTS" folder labled "MY MUSIC". This folder contains grandma grams secret double chocolate chip recipe.

All this means... (3, Funny)

posterlogo (943853) | more than 7 years ago | (#16617306)

...is that you pr0n collection is potentially safe from scrutiny. Can you just imagine if those RIAA people could tell the media how music pirating and pornaholics go hand in hand?

Re:All this means... (1)

beavt8r (919284) | more than 7 years ago | (#16617398)

Haha...."hand in hand"

Anyway, I do hope this is a step in the right direction as far as getting the RIAA out of the situation they have been in. It seems in the past when the judicial system sees a case by the RIAA it's "ooh, hands off they must be right" in a sense. At least from my lil' ol' perspective.

Re:All this means... (1)

Esion Modnar (632431) | more than 7 years ago | (#16617432)

...pornaholics go hand in hand?

Usually there's something else in hand. Reminds me, I'm out of hand lotion.

Re:All this means... (2, Funny)

QuantumFTL (197300) | more than 7 years ago | (#16617986)

Can you just imagine if those RIAA people could tell the media how music pirating and pornaholics go hand in hand?
Why you think the net was born?

Re:All this means... (2, Funny)

risk one (1013529) | more than 7 years ago | (#16618108)

I think you're forgetting that a computer expert will be examining the hard disk. There'll be plenty of scrutinizing going on with that porn collection.

An Easy Win Here Would Be... (5, Funny)

punxking (721508) | more than 7 years ago | (#16617382)

As a a mutually agreeable, neutral computer forensics expert, my only acceptable choice is CowboyNeal.

Compare prices on Privacy Software (1)

rHBa (976986) | more than 7 years ago | (#16618058)

Is the "Compare prices on Privacy Software" link included on every article with the riaa tag?

My suggestion... (3, Interesting)

chill (34294) | more than 7 years ago | (#16617460)

An open-source program along the lines of "file" that can identify file types. It can scan the drive and output and matches to music files. Those are the only files they get access to at all. No documents, pictures, movies, programs or anything else.

Re:My suggestion... (1)

bdigit (132070) | more than 7 years ago | (#16617522)

Or how bout the RIAA provides an MD5 or SHA1 hash of the file in question believed to be downloaded by the defendant. The run a scan on the files and look for a matching hash. Of course if they guy made the slightest of changes to the id3 tag it would come back with no files found.

Re:My suggestion... (0)

Anonymous Coward | more than 7 years ago | (#16617568)

That's why you would use something like TTH, not MD5 or SHA1.

Re:My suggestion... (0)

Anonymous Coward | more than 7 years ago | (#16617760)

how would they be able to prove that you downloaded these songs? couldn't they just be legit mp3s ripped from cds?

Re:My suggestion... (0)

Anonymous Coward | more than 7 years ago | (#16617892)

how would they be able to prove that you downloaded these songs? couldn't they just be legit mp3s ripped from cds?

A - If you don't have the CDs in your possession (still) you don't have any right to the mp3s.
B - The odds of a hash match between two MP3s ripped by even the same drive are slim even with the same encoder version and settings. Rip with something like EAC in secure mode, and then the odds of a match (again assuming the same drive, or at least a drive with the same read offset) become much more reasonable, but you would still need to use the same version of the same encoder with the same settings, and not have used a program such as MP3gain (or other) which mucks with the actual MP3 frames.
   

Re:My suggestion... (1)

arootbeer (808234) | more than 7 years ago | (#16618430)

IIRC, The RIAA's lawsuits are generally based on the RIAA's hired snoops having found an infected file on the defendant's open share. If they can provide the hash for any of these files and those files are found, that should provide the evidence they need.

Presumably if the lawsuit is genuinely based on them having FOUND one of these files on the defendant's share, they will know which one(s) was found.

Re:My suggestion... (1)

arth1 (260657) | more than 7 years ago | (#16617604)

An open-source program along the lines of "file" that can identify file types. It can scan the drive and output and matches to music files. Those are the only files they get access to at all. No documents, pictures, movies, programs or anything else.

Last I checked, "file" could not identify music files. That it can identify an MP3, like the one I taped from last Tuesday's business meeting, doesn't mean that RIAA should get access to it.

Regards,
--
*Art

Re:My suggestion... (1)

chill (34294) | more than 7 years ago | (#16617888)

No, the judge's order gives them rights to access it. That part was already established, they were just arguing about HOW to get access.

I'm talking about a way to help preserve some privacy for the defendant by using a neutral tool to filter out all obviously unrelated material -- the stuff not covered by the warrant.

"File" was an example. It could be modified and a "court approved" version could be put into escrow for use when authorized.

Re:My suggestion... (1)

LiquidCoooled (634315) | more than 7 years ago | (#16617620)

Unfortunately, it doesn't cover the application logs per the specific violation, CD burning logs to see if those files have been copied to CD, movie maker application log to see if you sang along to it, your internet logs to see if you posted it to your blog or youtube, your complete email log to see if you mailed it (or its lyrics) to anyone, a telnet log, your IM conversation logs and also your full paint.exe destination folder image files incase you took a screenshot of it in action and saved it.

Re:My suggestion... (1)

pilgrim23 (716938) | more than 7 years ago | (#16617658)

Reasonable...Now, is this going to report every mp3 or other format music file inculding all my transcribed 1890s Edison wax cylinder recordings? I may be wrong but I do believe these might be past their copyright due date...
Does this process look for some "digital signature" for "their music" vs "My Music"? if so, may I please see this signature?

  Does it differentiate any of the legal backup rips of my CDs from "their music" and flag which is not or which is "pirate"? If there is such a way of telling the difference, please reveal same to the independent so he can place this information online in a objective and impartial forum..like well here would do. Peer review woudl be the ONLY way to determine objectivly if this is a good aproach, oh and post the music too so we can see the process in action...

If not, then this is yet another lawyer fishing expedition and there ain't nothing can be done when Weasels in Suits smell cash....

Re:My suggestion... (2, Insightful)

chill (34294) | more than 7 years ago | (#16617828)

No, that would be step #2.

Step #1 would require a court order to begin with. After they get the list of audio files, you then identify them: your own recordings, legal rips, out of copyright, etc. The point was they didn't have rights to access the entire drive, but had a court finding to look for certain -- infringing -- files. This weeds out 90% of the chaff up front.

The /. crowd seems to love the "all or nothing" approach -- if they can't identify the exact files, including MD5 hash of the exact download, the RIAA has no right at all. That isn't the way it works in regular law, so why should music be any different? If they can show probable cause and enough "evidence" to convince a judge for a search warrant, then there needs to be a method -- however imperfect -- for dealing with the process.

Re:My suggestion... (1)

cpt kangarooski (3773) | more than 7 years ago | (#16617886)

The way that this sort of thing tends to work is that a basic search is run, and then humans go through all of the positive matches, trimming that down to just what is relevant in the specific case. A couple of rounds of human level review are normal, since you start off erring on the side of inclusiveness, but you do want to get rid of non-relevant matches in each round, and you get more precise as to what matches and what doesn't as you go through. Digital signatures will only be used in the first round, most likely. After that, human beings will actually listen to the music, identify the songs, etc.

Since one of the prima facie elements for the suit is that the plaintiff can show that he is the copyright holder, public domain works will ultimately not be counted.

Does it differentiate any of the legal backup rips of my CDs from "their music" and flag which is not or which is "pirate"?

No, nor should it. If you rip a CD, you are prima facie infringing and it is perfectly fine for the copyright holder to sue you for it, whether you own the CD or not. In order to win, you, the defendant, would have to make a successful defense of fair use. That is, it is your obligation to prove that each of those rips was fair under the circumstances it was made. You're likely to succeed, so the plaintiff will probably make it a point, during discovery, to ignore copies you ripped from CDs you owned at the time of the rip. But there's no such thing as an automatic right to rip your CDs to a computer hard drive.

Re:My suggestion... (1)

QuantumFTL (197300) | more than 7 years ago | (#16617960)

An open-source program ... It can scan the drive and output and matches to music files. Those are the only files they get access to at all.


Well, I take it by "music files" you mean "sound files", which could conceivably be anything. I'm sure everyone's seen "interesting" sound files online... and what about audio journals and/or voice notes? I think assuming a sound file is music is pretty ridiculous.

Better, I think, would be a program that meaningfully hashes sound files to compare with a hash database (yes, this is possible if you do proper frequency analysis etc) of copyrighted songs, and *that* is what they get.

Bonus points if this program is open source and you can use it to rat on all the piracy at a company you've been asked to leave.

Good to see... (2, Insightful)

blue l0g1c (1007517) | more than 7 years ago | (#16617524)

With the constant erosion of privacy laws, this is indeed refreshing.

I'm looking forward to the rootkit jokes. :)

RIAA defence? (3, Interesting)

whoever57 (658626) | more than 7 years ago | (#16617534)

Here is a thought:
Always buy used drives: never new.

Then, if one has to surrender a drive for discovery, point out that deleted files could have been created and deleted by the prior owner of the drive.

Re:RIAA defence? (1)

elysian1 (533581) | more than 7 years ago | (#16617632)

Except the fact that if you can recover a file, you can usually recover the date of creation/deletion of the file. So, unless you're going to lie about the date you purchased the hard drive, this may not help a whole lot.

Re:RIAA defence? (3, Insightful)

whoever57 (658626) | more than 7 years ago | (#16617724)

if you can recover a file, you can usually recover the date of creation/deletion of the file.
Can the RIAA show that the previous owner had the date correctly set on his/her computer?

Re:RIAA defence? (1)

Pink Tinkletini (978889) | more than 7 years ago | (#16618046)

To the standards required by a civil case? Yes, almost certainly. And probably also beyond a judge or jury's reasonable doubt.

Re:RIAA defence? (1)

elysian1 (533581) | more than 7 years ago | (#16618568)

All of this will be circumstantial evidence. Can they show 100% that it was the user that downloaded/deleted a file? No, but they only need to show a preponderance of the evidence, which is, statistically speaking, 51%. Can they show 51%, yes, very likely.

Re:RIAA defence? (1)

Umbral Blot (737704) | more than 7 years ago | (#16617774)

Better solution: download to an external drive, then hide that drive (give to friend) when the RIAA comes knocking.

Except... (2, Informative)

RareButSeriousSideEf (968810) | more than 7 years ago | (#16618564)

There are probably references galore to those files' existence on your sys drive. Do you run a media player from your sys drive? Do you run a p2p app from your sys drive? If on MS Windows, do you browse to your media files using Windows Explorer? All of these activities will leave a history trail as evidence of a media file's existence.

It would actually be pretty difficult to run a system that used media files but accumulated no traces of them. Every app that touches media in any way would need to be run in portable mode, and those apps themselves would need to be launched in a way that didn't generate any MRU entries.

Re:RIAA defence? (2, Interesting)

maeka (518272) | more than 7 years ago | (#16617776)

Here is a thought:
Always buy used drives: never new.

Then, if one has to surrender a drive for discovery, point out that deleted files could have been created and deleted by the prior owner of the drive.

While that might get you off the hook in a criminal case, this is a civil case, where the burden of proof is substantially lower, I can't imagine such a defense working unless your lawyer has the jury in the palm of their hand already. I think the odds of finding the files as described by the RIAA on a computer located by IP address are slim enough that such a defense wouldn't fly even in a jury trial.

Re:RIAA defence? (1)

isnoop (239143) | more than 7 years ago | (#16617904)

That won't fly when they can prove you owned the harddrive at the time the files were timestamped.

Suggested solution: Run your system's clock at some point before you acquired the drive.
For bonus points, run the clock at a time before DMCA was enacted. Instant grandfathering!

Re:RIAA defence? (1)

ClickOnThis (137803) | more than 7 years ago | (#16617920)

Always buy used drives: never new.

Be careful when you buy used drives. You may not know how they have been (mis)handled before they got to you. Also, some sellers (such as those on eBay) can be surprisingly naive about the amount of packing protection that is needed to ship a drive safely.

Then, if one has to surrender a drive for discovery, point out that deleted files could have been created and deleted by the prior owner of the drive.

IANAL, but I wouldn't depend on that defense. I think you'd still be screwed if the names of the deleted files on your drive matched those in the logs of a server you accessed.

If you're still going to try this, you'd better be sure to back-date all of the relevant dates on the files before you delete them. I'm not sure, but I think these dates can be recovered on some file systems. Better still, use one of those programs that "shreds" the free space on your drive.

There's also the conundrum of buying a drive previously owned by an anonymous stranger in order to feel more "secure" from the **AA.

Re:RIAA defence? (1)

Infernal Device (865066) | more than 7 years ago | (#16618412)

Then, if one has to surrender a drive for discovery, point out that deleted files could have been created and deleted by the prior owner of the drive.

So, do you think that lying to the court is an acceptable defense, then?

Man, what a total lack of personal honor.

this means nothing (0, Redundant)

wired_LAIN (974675) | more than 7 years ago | (#16617550)

So basically, the RIAA can have the information on the hard drive. All this ruling means is that the RIAA has to pay a little extra money. Its not like that will stop them from suing people...

Re:this means nothing (3, Funny)

blue l0g1c (1007517) | more than 7 years ago | (#16617622)

It coul mean the RIAA can have only the information relevant to their lawsuit.

I wonder if that means they have to basically play "Go Fish" now.

Sony: "Do you have any Christina Aguilera?"

Neutral guy: "Go Fish!"

What do you mean, specifically? (1)

coyote-san (38515) | more than 7 years ago | (#16617956)

I disagree. The defendant can reasonably ask that the RIAA name, specifically, what music files the RIAA believes he has illegally downloaded. I think it's safe to assume that the RIAA would never agree to this, but that bounces it to the judge and any judge willing to hold the RIAA to the usual standards is probably unlikely to sign off on an unrestricted fishing expedition.

After all there's no harm to the RIAA in requiring it to demonstrate it has reasonable cause to proceed. If they say the defendant has 100 illegal files and the search only finds 70, that's still good enough to warrant an unrestricted search for all audio files on the disk. But if the search can't find any of those files then it's clear that the RIAA would just be on a fishing expedition and it would needlessly harm the defendant to proceed.

(ObDisclaimer: IANAL)

They don't need to use the courts... (5, Interesting)

Anonymous Coward | more than 7 years ago | (#16617560)

When a certain **AA which deals with movies sued me, they wanted access to my server and all of my computers. I gave in to the server bit, under supervision - I was innocent after all - but didn't let them touch my home machines (again, I am innocent and these requested searches were prior to going to court).

What they did instead was hack my HTTP daemon, FTP daemon or some Windows vunlerability on my one Windows machine (HTTP and FTP installs both admittedly being out of date), install some server scripts to download / edit / see my files, and eventually use those scripts to install a rootkit or trojan on the machine. If they hadn't done that last step, I may have never noticed. After looking at my web server's access logs, they were certainly poking around in places that they had no business being in. I mean, apart from poking around in the first place... but I don't think files with names like 'bank.txt' and the like are any of their business.

How do I know it was the **AA? The investigator they had who scp'd my entire /home and /var/log from my server under the guise of investigation had the same IP as in those access logs. I'm baffled at why he didn't even attempt to cloak it.

I don't see the RIAA stepping down with this court decision. If this guy primarily uses Windows, they can just do what was done to me. And if they don't find anything, they can surely plant it.

(posting AC becuase the lawsuit is still in the works) - captcha: sneakier

Re:They don't need to use the courts... (4, Interesting)

artifex2004 (766107) | more than 7 years ago | (#16617954)

I hope you countersued. Sounds like they were contaminating evidence and also possibly stealing computer resources if they ran anything themselves. The last is probably a crime, not just a civil matter.

Re:They don't need to use the courts... (0)

Anonymous Coward | more than 7 years ago | (#16618146)

Those are some very serious charges. If what you say is true, then you have direct evidence of illegal hacking activities by an agent of the **AA. Why don't you do something about it? Such evidence could be used in a RICO lawsuit for example.

definition of expert: (5, Funny)

jtwronski (465067) | more than 7 years ago | (#16617584)

If they ever try to nail me (not that they'd have a reason to), I'll make sure that my linux box is only examined by a well-trained MCSE with lots of experience with the ntfs and fat32 filesystems.

    In reality, I could always do a checksum of my partitions, and see what the checksum is when the drive gets back from the RIAA's expert evidence installer guy. I'd fear a real expert more that I'd fear the RIAA shill doing it.

Re:definition of expert: (1)

sofar (317980) | more than 7 years ago | (#16617722)


someone mark this as funny please, it cracked me up for a minute! hahahahaha, a well-trained MSCE? ROFL!

Re:definition of expert: (1)

glwtta (532858) | more than 7 years ago | (#16618378)

I think this is less about evidence installing and more about protecting your giraffe videos.

Yay the legal system is working (0)

QuantumFTL (197300) | more than 7 years ago | (#16617588)

Well, sort of...

Sounds like.. (2, Interesting)

Ten24 (974324) | more than 7 years ago | (#16617602)

Who does this really side with? The RIAA or the individual? Does it not give more concrete evidence against that individual if files are found by a 3rd party? You would think any files 'found' by the RIAA would not hold up well in court. What about files that were deleted long ago, how about used HDDs that have previous owners files on them? Sounds like the RIAA would have to request files from very specific dates and times to me.

Re:Sounds like.. (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#16617740)

I think it doesn't side with either; it fairly balances the rights of both parties. But since the RIAA wants everything to be one-sided, and this is, instead, even-handed, I chalk it up as a win for the good guys.

Next time download mp3's via Proxy (1)

Yahma (1004476) | more than 7 years ago | (#16617634)

Anyone who browses warez or mp3 sites is just asking for an RIAA lawsuit. I don't understand why people are still being caught by the RIAA?? C'mon Folks, its been public knowledge that the RIAA has been tracking downloads for the last several years! Next time, save yourself some headache and use an Anonymous Proxy [proxystorm.com] to browse for your mp3's?


Yahma

Next time download mp3's from usenet (0)

Anonymous Coward | more than 7 years ago | (#16618092)

Anyone who thinks people still download illegal mp3s from web sites learned everything they know about file sharing from the 6 o'clock news (or the RIAA). I don't understand why people even bother googling "hotnewsong.mp3" before they hit torrentspy or IRC. C'mon folks, it's been several years since entering "mp3" in a search engine turned up anything but unscrupulous sites trying to boost their google rankings! Next time, try bittorrent or IRC or usenet to download music!

Re:Next time download mp3's via Proxy (1)

shmlco (594907) | more than 7 years ago | (#16618324)

Now that's absolutely brilliant. The **AA is monitoring the web, so the solution is to trust a set of "anonymous" proxy servers run by some totally unknown group of people...

Did you think up that one all on your own, or did you have help?

Stipulations (2, Funny)

Debug0x2a (1015001) | more than 7 years ago | (#16617642)

Stipulation #1: They must listen to EVERY SONG IN ITS ENTIRETY to make sure its not a legal demo copy with that damned message at random points. Stipulation #2: They must preview EVERY MEDIA FILE (Including horse porn) IN ITS ENTIRETY to insure that there is no copyright infringement there such as music videos or demo images. Stipulation #3: They must reference EVERY SONG 'illegally obtained' with a list of music legally owned by all users, past and present, of the hard drive, including the manufacturers and the techies at Dell. Oh, and the company charges at least $120/hour for the service... hope they like to spend their money on guys watching horse porn.

Re:Stipulations (2, Insightful)

cpt kangarooski (3773) | more than 7 years ago | (#16618048)

A few points.

First, they don't have to review any file unless they want to, because the plaintiff gets to choose what it bases its case on. If they want to ignore a particular file then it only helps the defendant for them to do so. So your #2 is rather stupid. (Though from my own experiences, I would say that disguising a file adequately could work pretty easily unless the reviewer had some reason to look further, such as if disguised files became a commonly used tactic by infringers)

Second, for files they are initially interested in, I assure you, they really will review them in their entirety. I've had to do this sort of thing myself at times, and let me tell you, it is very boring. But it does brighten the day of the reviewers to come across evidence of illicit workplace romances, affairs, arguments, illegal activities (whether related to the case or not), etc. Regular ol' porn, not so interesting, actually. It's more fun to hear about things than to see them graphically. So don't worry about your #1.

Third, your #3 is again, rather stupid. If a file is found that the plaintiff is going to go to court with, the mere presence of the file is enough to go to the jury with. The defendant can argue that the file was put there by someone else. It is up to the jury to decide who they believe; that is their job. It's no different than if one side had a witness that said he saw the defendant do it, and another witness with the exact opposite story.

The reason why RIAA is complaining... (1)

Van Cutter Romney (973766) | more than 7 years ago | (#16617696)

... is that they don't have any money left after paying their lawyers for all the lawsuits.

On staff lawyers (1)

nurb432 (527695) | more than 7 years ago | (#16618178)

Cost the same if they are in court, or sitting twiddling their thumbs.

But what if.... (1)

Nushio (951488) | more than 7 years ago | (#16618116)

So a neutral party will search through the Hard Drive... Looking for pirated music... What if he finds other illegal information, such as Movies, Games, Software or even confidential information or pictures? Would those be submitted as well?

purge data (1)

Randall311 (866824) | more than 7 years ago | (#16618124)

Has this guy ever heard of purging data, zeroing the hard drive? How is it possible that after he got served to appear in court that this hard drive contains any useful information on it? If I was in his position those RIAA fuckers would have a hell of a hard time finding anything useful on my hard disk.

Burden of proof (1)

nurb432 (527695) | more than 7 years ago | (#16618204)

Remember that the burden of proof is much lower ( and pretty much reversed ) in a civil case.

you walk in with a empty drive, you are liable to appear guilty, AND you cant prove otherwise. You are also liable to get hit with a criminal charge of tampering if the judge is in a bad mood that day.

Re:purge data (1)

BionicPimp (562378) | more than 7 years ago | (#16618266)

Unfortunatly someone tried this already and faced the swift hammer of justice... [neowin.net] This is colloquially known as tampering with evidence, which i believe is a criminal offence. what you want to do is use TrueCrypt [truecrypt.org] . You give them all your music in triple DES or AES encrypted format. What I think is pretty awesome is that they have fake out passwords that give the appearance of decrypting the volume, while actually hiding it!

How Are The Funds Dispersed, Once Won? (2, Interesting)

CheeseburgerBrown (553703) | more than 7 years ago | (#16618126)

When the Empire wins the LUCRETIVE CASH SETTLEMENTS from these actions, how do they disperse them to the artists?

Do they toss the money into a general bonus slush fund meated out in infinitessimal slicettes to each artist their various members represent? Like, does Michael Jackson get 0.0001 cents for every suit settled?

Or, conversely, do they pass the money on directly to the artists whose songs are found to have been shared? In this scenario they would audit a defendant's hard-drive, find lots of Madonna songs, and then give Madonna her share of the bounty.

If so, they should be making available these backdoor sales for the purposes of inclusion in music charts. Like the Pirate Top 10.

(I know, I know -- some folk'll cry foul and claim that that sort of thing would only encourage illegal filesharing 'cause the cool kids are doing it, but those people should take their beef up with Sweden, first.)

From this point of view the lawsuits could be seen as friendly, random audits to pay for shared songs. If the artists were compensated in direct relation to illicitly shared tracks found, it becomes a kind of sale. Totally legit -- like a kind of anti-lottery.

Then the government could tax it and we could all get on with our business.

Okay... (1)

AVonGauss (1001486) | more than 7 years ago | (#16618236)

Okay, I am not a lawyer, can someone please answer me this; I read in the original and the amended filings that the RIAA is claiming that the defendant either received or distributed copyright works, but I have a few questions... 1) Which is it? Did she receive or distribute - isn't there a legal difference? 2) What is it? Maybe it's in the exhibit A mentioned in the claim that I didn't see in the PDF, but what is she accused of receiving or distributing? Yes, I know they want the hard drive so they can garner evidence, but there has to be some standard of suspicion with some level of evidence in order for the case to proceed, doesn't there? Shouldn't they have to spell it out - on this date and time we believe that this IP address was assigned to you and during that time frame you where in communication through TorrentWorld and downloaded the file entitled "MyFavoriteMusic.mp3" which we know to be a work of art that we currently hold copyright over. When do they actually have to provide the most basic of details like previously stated? Also, this is really more to the blogging sites like Slashdot and TechDirt that love to publish articles about the scummy RIAA tactics, which thank you BTW. Why are the artists getting a free ride through all of this? Sony is a publisher, but there is also an artist involved, why aren't we publishing their names as well so the public knows which artists either through inaction or direct involvement are also involved in the cases with scummy tactics?

Re:Okay... (2, Interesting)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#16618280)


1. I commend you on reading the documents. That's impressive.

2. They accused her, in boilerplate, of downloading, distributing, and/or making available for distribution.

3. In fact all they had is a screenshot indicating that somebody using that dynamic IP address had a shared files folder, which the RIAA considers 'making available for distribution' or 'distributing'.

Re:Okay... (1)

AVonGauss (1001486) | more than 7 years ago | (#16618394)

Thank you for taking the time to reply, I am still confused, but I'm probably not the only one - at some point if I cry thief, it seems that I should have to state clearly what has been stolen or violated... Out of curiosity, was that a shared folder in the sense of a file sharing (like torrent) folder or a shared folder as in a Windows or SMB shared folder?

Re:Okay... (1)

Dunbal (464142) | more than 7 years ago | (#16618558)

at some point if I cry thief, it seems that I should have to state clearly what has been stolen or violated...

      Why billions and billions of dollars, of course. Haven't you been paying attention? :)
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