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Judge Says RIAA Can't Have Hard Drive

Posted by Zonk on Fri Oct 27, 2006 06:19 PM
from the quite-a-large-beast-to-be-jumping-through-hoops dept.
Media Music Government Privacy The Courts News
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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[+] Safeguards For RIAA Hard Drive Inspection 276 comments
NewYorkCountryLawyer writes "In SONY v. Arellanes, an RIAA case in Sherman, Texas, the Court entered a protective order (PDF) that spells out the following procedure for the RIAA's examination of the defendant's hard drive: (1) RIAA imaging specialist makes mirror image of hard drive; (2) mutually acceptable computer forensics expert makes make two verified bit images, and creates an MD5 or equivalent hash code; (3) one mirror image is held in escrow by the expert, the other given to defendant's lawyer for a 'privilege review'; (4) defendant's lawyer provides plaintiffs' lawyer with a 'privilege log' (list of privileged files); (5) after privilege questions are resolved, the escrowed image — with privileged files deleted — will be turned over to RIAA lawyers, to be held for 'lawyers' eyes only.' The order differs from the earlier order (PDF) entered in the case, in that it (a) permits the RIAA's own imaging person to make the initial mirror image and (b) spells out the details of the method for safeguarding privilege and privacy."
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  • woo, guess a few judges have read the law (Score:5, Insightful)

    by swschrad (312009) on Friday October 27 2006, @06:21PM (#16617210) Homepage Journal
    about time RIAA is held to the law.

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

      by owlicks58 (560207) on Friday October 27 2006, @06:51PM (#16617544) Homepage
      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.
      • 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.

        • 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

          • 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.

  • Defendant's terms (Score:5, Funny)

    by Firehed (942385) on Friday October 27 2006, @06:23PM (#16617236) Homepage
    "Okay, you guys can have the music back. Just let me keep the pr0n!"
  • 1) Buy/Pay-off "neutral expert"
    2) Resume "business" as normal
    3) ???
    4) Profit!

    • Re:Money can't buy love... (Score:5, Funny)

      by ClickOnThis (137803) on Friday October 27 2006, @06:43PM (#16617466) Journal
      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: (Score:3, Interesting)

      by TheRaven64 (641858)
      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 i

  • Precedent - Probable Cause? (Score:3, Interesting)

    by SonicSpike (242293) on Friday October 27 2006, @06:25PM (#16617274) Homepage Journal
    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? (Score:5, Informative)

      by ari_j (90255) on Friday October 27 2006, @06:35PM (#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 (Score:5, Informative)

        by ari_j (90255) on Friday October 27 2006, @06:53PM (#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. :)

            • That is why when they request a "mirror" of the harddrive you give them a "mirror." You go out an buy a new harddrive that matchs the one that you are going to have to cough up. After you clean off the master, then you copy each file over with the copy command. Make sure you use the archive option so it copies the correct file date and permissions.

              There, they have thier mirror that they requested. There are no "holes" in the file table because there where never any incriminating files on the drive to

  • All this means... (Score:4, Funny)

    by posterlogo (943853) on Friday October 27 2006, @06:29PM (#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?
    • ...pornaholics go hand in hand?

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

    • 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?

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

    by punxking (721508) on Friday October 27 2006, @06:34PM (#16617382)
    As a a mutually agreeable, neutral computer forensics expert, my only acceptable choice is CowboyNeal.

  • My suggestion... (Score:4, Interesting)

    by chill (34294) on Friday October 27 2006, @06:43PM (#16617460) Journal
    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.
    • 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.

    • 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: (Score:3, Insightful)

        by chill (34294)
        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 downl
  • With the constant erosion of privacy laws, this is indeed refreshing.

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

  • RIAA defence? (Score:4, Interesting)

    by whoever57 (658626) on Friday October 27 2006, @06:51PM (#16617534) Journal
    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.
    • 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: (Score:3, Interesting)

      by maeka (518272)

      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 compu

      • 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

      • Re: (Score:3, Insightful)

        by ScentCone (795499)
        Man, what a total lack of personal honor.

        Don't forget that you're in the middle of an entire thread that's focused on the art and science of being too cheap to pay an artist a buck for a song. So, yeah.

        • Re:RIAA Defence? (Score:4, Insightful)

          by MacWiz (665750) <wizardNO@SPAMazoz.com> on Friday October 27 2006, @11:39PM (#16619610) Homepage Journal
          Don't forget that you're in the middle of an entire thread that's focused on the art and science of being too cheap to pay an artist a buck for a song.

          If we could pay the artist a buck a song, that would be honorable. If we could pay the artist $5 for a CD, that would be even more honorable.

          But I'm not going to pay a buck a song while the artist only gets 16 cents. I'm not going to buy another major label record until the RIAA stops suing people and makes a public apology for being such assholes. I'll support the artists I like by buying tickets to their show when and if they come to town.

        • Re: (Score:3, Interesting)

          by kthejoker (931838)
          I'm sorry, but the RIAA has been found guilty of price fixing twice in civil court. A buck a song is outrageous given the low overhead of online hosting + the fact that iTunes is making large bundles of money off music produced 10, 20, 30, and even 50 years ago. To suggest somehow $1 is the appropriate value for these songs is ridiculous.

          Put plainly, market forces have not been put into play in an effective manner, primarily due to ITMS' DRM restrictions and the popularity of the iPod.

          Anyone with any sort o

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

    by Anonymous Coward on Friday October 27 2006, @06:53PM (#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

  • definition of expert: (Score:5, Funny)

    by jtwronski (465067) on Friday October 27 2006, @06:56PM (#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.
  • 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.

  • linux firewall question (Score:3, Interesting)

    by jt418-93 (450715) on Friday October 27 2006, @10:11PM (#16619072)
    so i had a though. say i have a linux firewall box that sees the world, all my windows boxes are safely behind it. if they request the computer attached to the ip, would that not be my linux box, with nothing but the firewall on it?

    just a question
    • 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!"
    • 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 the

    • 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... (Score:4, Insightful)

          by NewYorkCountryLawyer (912032) * on Friday October 27 2006, @11:07PM (#16619428) Homepage Journal
          AVonGauss wrote: "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?"

          1. You're certainly not the only one that's confused. The reason I know that is that I'm confused, too. Were I a judge all these cases would have been bounced on day one. These guys have no evidence of anything when they start the case. And then if they can't find some evidence in their fishing expedition, they accuse the defendant of having hid the evidence. It's a joke.

          2. All the cases I have seen are Kazaa, Limewire, Gnutella, or iMesh.... i.e. FastTrack clients.

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