RIAA Can't Have Defendant's Son's Desktop 283
NewYorkCountryLawyer writes "The RIAA's attempt to get Ms. Lindor's son's desktop computer in UMG v. Lindor has been rejected by the Magistrate Judge. The judge said that the RIAA 'offered little more than speculation to support their request for an inspection of Mr. Raymond's desktop computer, based on ... his family relationship to the defendant, the proximity of his house to the defendant's house, and his determined defense of his mother in this case. That is not enough. On the record before me, plaintiffs have provided scant basis to authorize an inspection of Mr. Raymond's desktop computer.' Decision by Magistrate Judge Robert M. Levy. (pdf)"
Bad Week for the RIAA (Score:5, Insightful)
Yeah!!!
Now back to our normal post. The RIAA is like a bacteria that has multiplied to infect many hosts. However, like a simple bacteria that replicates perfect copies of itself, the RIAA lawsuits are all exact clones. What this means is that, if you can kill one of them, you can kill all of them. Reading the postings just this week on Ray's blog will tell you that the many enemies (a.k.a. innocent defendants who are fighting back) of the RIAA are coordinating and refining their tactics in search of the magic bullet that will kill this plague once and for all. And from the looks of things, they're getting mighty close.
Not really, because... (Score:5, Insightful)
Not allowing baseless evidence gathering is the same as not allowing baseless search. But casting a very wide net and calling everyone a thief, and then when asked to produce evidence, claiming that you'd have it if you could go searching for it - this is just simply not the way the American justice system works, for better or worse.
Re:not supporting the RIAA (Score:3, Insightful)
Which actually could be bad for RIAA.
But we want it to be bad for them through the full picture.
Right?
Re:not supporting the RIAA (Score:5, Insightful)
Re:not supporting the RIAA (Score:5, Insightful)
She "may have" had access to your computer. That doesn't mean that she did. Even if she did, that doesn't mean that she used it to commit the alleged offense.
It sounds to me like you just don't get it.
If your mother is accused of a crime, why in the hell should they be able to search your property, at a different house, without probable cause?
If the police can't do it for a murder case, why should the RIAA be able to do it for a civil suit?
LK
Re:not supporting the RIAA (Score:5, Insightful)
Re:not supporting the RIAA (Score:5, Insightful)
You're not making sense here. First off, you have to mean if the person they're suing has access and may have used his PC for copyright infringement, should his PC not be investigated? That's the first correction. They've already checked the PC in the house itself, and come up dry. It does not contain the hard drive with any of the infringing files or programs on it.
Secondly, they're not suing the son. So he is not the person they're suing, and they should have no right to anything on his PC just because he's a son who lives 4 miles away and, like any good son should, visits his mother.
Thirdly, if you have your own computer at home, it doesn't make much sense that you'd pack up your computer, drive miles to your Mother's house, and commit copyright infringement there, before packing up your computer once more and driving back home again to use your computer for everything else you normally use it for. Even if you have a notebook computer, do you drive somewhere else to do all your filesharing? That's too much of a reach for even this judge to accept, hence they're not allowed to just look at a non-party's computer hard drive because of a casual relationship between a mother and her son. There is no evidence that the son's computer has ever been in his Mother's house.
It would be like the RIAA saying that, we tracked filesharing to the IP address of your best friend who lives a few miles from you. But because we couldn't find the evidence on his computer, and we know you're friends who often got together at his house, and because you have a computer too, we want to give your computer a digital anal examination as well, hoping we'll find something to incriminate you with. And it's not even like said best friend told the RIAA to get his own butt out of the sling that, "Hey, my best friend always came over with his computer and we downloaded music on it." He would have told them nothing of the sort.
Now do you get it?
Forgive my ignorance... (Score:5, Insightful)
Re:Now, what am I supposed to believe? (Score:5, Insightful)
Congratulations (Score:3, Insightful)
RIAA doesn't trust the police to do it right? (Score:2, Insightful)
I'm having trouble right at the moment trying to define the difference in a way that makes sense in these cases.
Re:Who cares? (Score:3, Insightful)
I don't know how ideology applies to this unless you believe that unrestricted fishing expeditions without any real probably cause make good law. If you believe that, then is is a major blow to your ideology, because the judge just said no, I'm not going to allow you to examine computer unless you can directly link that computer to the alleged violation of intellectual property law.
> It's a mundane legal decision in one of their many cases. Why, exactly, is this newsworthy?
Its not mundane at all. Its a major blow to the RIAA's current policies and it sets up a much larger blow that I suspect we'll see ordered shortly. The RIAA had it easy when they were bullying college students into handing them their savings in order to avoid a costly litigation. All too often these students hadn't done anything wrong. Now that people are fighting back, decisions like this will start to cost the RIAA something, and that may cause them to rethink their strategy.
Re:Who cares? (Score:1, Insightful)
Where the **AA is involved, schadenfreude is a perfectly good reason.
Soo...some ideas (Score:5, Insightful)
In discussions with a real lawyer about all this, my lawyer friend and I came upon the solution...
Should you get The Letter, which has no legal value whatsoever, put a bullet through the drive, do a Jeff Merkey and bash it against a rock, melt it in a Sentry heat treating oven at 2250F (FUN!!). "We're sorry, but the drive no longer exists"
Should you get The Subpoena, it's too late and you're hosed. Bend over and take it or mount a real defense, because if you destroy the drive, it's spoilation of evidence and the court really frowns on that. That's what hosed Jeff Merkey when Novell subpoenaed him.
Timing is everything.
Re:Not really, because... (Score:3, Insightful)
Is looks more like there is a basic system in place that pretends to be fair, but exceptions are so easily made that groups of people a treated in an unfair way.
Re:not supporting the RIAA (Score:4, Insightful)
Sounds like a reasonable judge. Taking the defendant's computer would deprive them of it for a long period of time, whereas taking a copy of it's data only deprives them of it for a short time.
However upon further analysis, it appears that HD had no traces of any filesharing software or the copyrighted songs that the plaintiff claimed were being shared. So the plaintiff went back to the judge saying, "Well, the defendant's son had access to her house, maybe it was his personal computer that the culprit." I suspect that the MediaSentry methods of identifying infringers are error prone and that is the most likely cause of the discrepancy.
Or something as simple as a typo on the part of the plaintiff.
What the judge has ruled is that besides just speculation, the plaintiffs have offered no compelling evidence to search the computer of the defendant's son who has his own machine in his house and does not live with his mother.
To the judge it may look as though the plaintiff is on a "fishing trip".
Although the decision doesn't mention it, the defendant's son claimed that his files are protected by attorney client privilege (as he is a lawyer and uses his computer for work).
Plenty of people may have confidential material on their computers. A lawyer has the advantage that he or she can phrase this in language a judge is likely to understand.
Re:not supporting the RIAA (Score:3, Insightful)
If you applied the RIAA's "logic" that would probably include computers belonging to any relatives of Viacom employees. "Hand over your PC your third cousin, who you never knew existed, married the second cousin of someone who once did some agency work for Viacom!"
Re:Completely Offtopic (Score:3, Insightful)
While many people agree with you that April Fool's day on Slashdot is indeed way over the top, it's still no reason for insulting random strangers that did you no harm.
Re:not supporting the RIAA (Score:4, Insightful)
Lots of people don't think that far.
Your money are used to sue you or your friends. (Score:5, Insightful)
If you stop paying them they will fold with less collateral damage, and music will be free sooner.
Re:not supporting the RIAA (Score:3, Insightful)
I think you are infringing on the RIAA's copyright. Expect them to take your PC soon.
Get it? It takes more than someone's "say so" to go into someone's private property and rummage through their things. The RIAA has to actually show some sort of proof that you've wronged them, not just "oh, we say you did it". Unfortunately (for them) they don't have enough proof to convince the judge. So why should they get the hard drive? First things first - establish that copyright infringement happened by some other means.
Re:Artists funding this action (Score:3, Insightful)
you understand sarcasm? (Score:2, Insightful)
Re:Who cares? (Score:4, Insightful)
Their policy is to sue people who have paid for an internet access account that they think is linked to a p2p shared files folder.
They know, and don't care, that this will result in many innocent people being sued.
Then if they figure out the defendant didn't do it, they try to use their pending lawsuit against an innocent person as an investigative platform with which to look for others, all the while terrorizing the innocent defendant.
That is exactly what happened here. (The defendant here, in fact, has never even used a computer, believe it or not.).
A ruling like this is important.
The case should have been thrown out a long time ago, but every little bit helps.
Re:not supporting the RIAA (Score:2, Insightful)
Your snobbishness is ridiculous.
There are plenty of legitimate experts in all sorts of fields who do not happen to be engineers.
Vint Cerf is not an engineer. Richard Stallman is not an engineer. Eric S. Raymond is not an engineer.
I have a PhD in chemistry and many years of experience doing research. I think I'm an expert in my field, but I'm not an engineer.
Now, this "expert" might be a fraud, but the fact that they aren't an engineer doesn't mean they are a fraud. Depending on where you live, calling yourself an "engineer" when you're not is illegal. Calling yourself a "software engineer" might not be. In some places, only calling yourself a "professional engineer" when you're not is illegal.
Re:not supporting the RIAA (Score:2, Insightful)
Re:not supporting the RIAA (Score:2, Insightful)
The same people riding that airplane that was designed by a "professional engineer" are relying on software as well.
The safety and security of a structure or a piece of code is not contingent upon the credentials of an individual,
but how well the individual did his job in formulating his work and testing the results.
Software Engineers may not have an equivalent PE exam at this time, but there are organizations (ACM is one) trying to establish the
accountability among the community that the PE exam is supposed to provide.
Do not judge others based on a set of standards that do not even apply to them. I'm quite certain that civil and mechanical engineers do not send out their first set of blueprints as the finished product. I would gather that they test their design to ensure it meets the required standards. This is also the case for software engineers.
In addition, everything that is designed by civil and mechanical engineers do not require the same measures of safety. The same holds true with software. Some applications are more critical than others.
Just remember, there are morons in every profession.
Fundamental problem (Score:3, Insightful)
So the mother is the holder of the Internet account and denies any knowledge. Some folks come along and pretty much say that there is no evidence on that computer. If the holder of the Internet account has no further responsibility, then there is clearly no point to trying any legal action whatsoever - anyone could have used the "account resources" and provide a quite adequate defense.
Obviously what the RIAA would like to have is what any sane individual would want - the account holder is responsible for activity using the account. This is especially true since the true user of the account is invisible.
If only the "end user" (anonymous and unknowable) is liable, then there is no point to any prosecution involving the Internet. I can always claim that it was a son or daughter or a neighbor and they cannot prove otherwise.
Now, this business of going after other potential user's computers to prove that the activity took place on the account would seem pointless. They (obviously) have proof that the account was used. That should be all that is needed to prove - the account holder is responsible. This would seem to be going down the road of the account holder not being responsible. Then it is clearly just a fishing expedition and there is no legal basis for holding anyone at all accountable.
Re:Not really, because... (Score:3, Insightful)
I'm happy to see judges standing up to the RIAA strong-arm tactics.
Re:not supporting the RIAA (Score:3, Insightful)
A PE license is actually a trademark, and if you claim to be a PE [wikipedia.org] when you in fact have not been granted the said license you can be fined for trademark infringement as well charged for other civil and criminal offenses (just like being a fake doctor).
I work for a large multidisciplinary engineering firm and when we do any programming related to say traffic lights, the whole "engineering" design gets stamped by an Professional Engineer(s) that may be an civil engineer or an electrical engineer depending on the situation.
It appears that the rigor of liability associated with the more "conventional" engineering practices have not caught up to the computer sciences\engineering field, yet. But this will change in the future. For the time being, the title "software engineer", unlike "Structural Engineer (SE)" is as relevant as the title "car wash attendant".
Re:To follow up even further... (Score:3, Insightful)
Sort of directed at Mr. Beckerman: I think these details are the clearest indication of the expert's limitations. You've already limited the scope of his 'expertise', and the complete lack of any documentation of the MediaSentry process, coupled with this expert's inability to prove that the wireless router in question didn't actually exist should force the MediaSentry process out into the open, or hopefully to be proven inadequate as an evidence-gathering tool.
That being said, there is a danger here that was brought up earlier: the idea that an account holder is not actually liable for their own account. That's a bad idea. I know the Internet is filled with anonymity and uncertainty, but making an Internet connection an ability to blame-shift your illicit online activities to 'some cracker' is a bad trend. Best is to start making ISPs more responsible for the security of their network. Funnily enough, despite the rampant abuse my server receives on a daily basis, none of it comes from Canadian or European networks; only American and Asian ones. Food for thought.
Re:Who cares? (Score:2, Insightful)
I do have one question about this case. Why is she paying for an internet access account if she has never used a computer? That does not make sense to me.