Should RIAA Investigators Have To Disclose Evidence? 216
NewYorkCountryLawyer writes "A technology battle is raging in UMG v. Lindor, a court case in Brooklyn. The issue at hand is whether the RIAA's investigator SafeNet (the company that acquired MediaSentry) now needs to disclose its digital files, validation methodology, testing procedures, failure rates, software manuals, protocols, packet logs, source code, and other materials, so that the validity of its methods can be evaluated by the defense. SafeNet and the RIAA say no, claiming that the information is 'proprietary and confidential'. Ms. Lindor says yes, if you're going to testify in federal court the other side has a right to test your evidence. A list of what is being sought (pdf) is available online. MediaSentry has produced 'none of the above'. 'Put up or shut up' says one commentator to SafeNet."
Disclose Evidence? (Score:5, Insightful)
Same song, Different tune (Score:-1, Insightful)
Proprietary techniques/technologies do NOT belong in the legal system because they are completely immune to scrutiny. They are unconstitutional IMHO, not being able to face your accuser etc.
Extortion (Score:5, Insightful)
'proprietary and confidential' (Score:5, Insightful)
Well I'm innocent and i have a video to show it but its...
I cant disclose what guns i had in my possession at the time of the murder as my guns are...
Theres no way something is too 'proprietary and confidential' to show a court of law!
Re:Disclose Evidence? (Score:4, Insightful)
No, they shouldn't (Score:5, Insightful)
Re:Discovery rules in Civil vs. Criminal cases? (Score:5, Insightful)
How far does judicial credulousness stretch these days?
Re:Great! (Score:5, Insightful)
Of course, how else can the evid. be valid? (Score:5, Insightful)
If this was anything except technology, the judge would laugh them out of the court.
Policeman: "He was going 11MPH above the speed limit."
Judge: "How were you able to do that?"
Policeman: "Sorry, but that's proprietary information. If leaked, it would damage our ability to catch speeders.
This has been tested on a slightly different case. Florida police can't use breathalyzers without providing the source [news.com]. Unless you can show that there is no trickery in your technology, it shouldn't be held admissible in a court of law.
division by zero error (Score:4, Insightful)
Re:Smackdown (Score:3, Insightful)
Re:Discovery rules in Civil vs. Criminal cases? (Score:5, Insightful)
"We have the smoking gun on Iraq, but we can't show you until after we go to war."
"We have the evidence to prove these guys are terrorists but we can't show it to you. disregard the canadian."
"We aren't doing anything wrong. Pay no attention to the man behind the curtain."
Re:What do you think? (Score:3, Insightful)
Just like the Breathalyzer cases (Score:5, Insightful)
Remember when it started getting around that people were beating DUI charges by requesting the source code of the machine? If that was reasonable, this is a slam-dunk. The basic right to confront your accuser is one of the most important of the rights we have. If the defendant doesn't have the right to attack the evidence presented against him, he is effectively denied due process.
It's your case, RIAA. Put up or shut up.
Discovery of this type happens all the time (Score:5, Insightful)
This is not new terrain. The evidence can be examined under restrictions so the "proprietary and confidential" information doesn't make its way out of the confines of the case. Frankly, this is just standard legal maneuvering for a case like this. The test is whether the discovery methods will be considered germaine to the validity of the RIAA's case. If so, the court will likely allow discovery of these techniques.
Re:What do you think? (Score:4, Insightful)
This is standard civil procedure (Score:5, Insightful)
IANAL, but I have been an expert witness in many legal proceedings in Federal courts. As a part of discovery, you *have* to give the other side your raw data and details of your methodology. Otherwise, the judge is almost certain to throw out your testimony, as the other side has no way of discovering the weak spots in your case. I was involved with one case where the judge sanctioned one of the opposing experts and it took us three tries to get a decent set of data and models out of them. This had a very negative effect on the credibility of the other side's expert, which pretty well torpedoed their case. (They won as a matter of law, but damages were negligible.) Mind you, the data and models are generally covered by a protective order to maintain confidentiality, but it's so common that the wording is almost boilerplate. SafeNet and the RIAA don't have a leg to stand on here, and I can't imagine why they're bothering to oppose this unless they're pulling an SCO -- in which case, the judge should slap them down HARD.
--Paul
Re:What do you think? (Score:5, Insightful)
We don't have any prior examples of this specific niche technology at work. There's no baseline of acceptable "industry standard" out there - every bit of information about these products is held so closely to the chest of these businesses that we just do not know where the hell this data comes from and, more specifically, we don't know how this data is corroborated with ISPs to find these people who are supposedly committing the infringements. Plus, we have no idea of what the failure rate of this entire process has been. On top of all of that, there is no independent analysis of this method.
If the RIAA litigation team was an inventor, this whole ordeal would be nothing short of them running around screaming about how they've invented perpetual motion, and then not letting anyone independently verify that the machine works.
Re:What do you think? (Score:3, Insightful)
It is hard to imagine someone coming to federal court, asking the Court to accept its methods, and refusing to allow the Court to know what its methods are.
The only people I have ever met who have that much stupidity and that much arrogance are the RIAA's lawyers.
Re:Discovery rules in Civil vs. Criminal cases? (Score:5, Insightful)
Re:Please, keep digging your grave. :) (Score:-1, Insightful)
Re:New Era of digital proof (Score:5, Insightful)
No, but they'd reasonably ask to see the actual footage... not the result of a face recognition system and a copy of the suspect's driver's license. And if photography were only a decade or three old, and had been known to photograph the wrong person?
I suspect that the demands are probably more than they need, and I suspect they don't expect to get all they're asking for, but I don't think it's unreasonable to demand more details than you would of a videotape.
Re:Please, keep digging your grave. :) (Score:2, Insightful)
You want to prove I did something, then PROVE it. (Score:3, Insightful)
Prove it.
Otherwise this just becomes a protection racket. "Mighty nice income stream you have there, buddy. It would be a shame of something happened to it." "Maybe you should just pay us a few thousand dollars, because, like, you never know when we might decide that downloading GPL software is really downloading our Most Holy and Precious Intellictual Property. After all, once we railroad you in a kangaroo court with 'evidence' we don't have to disclose, a few thousand dollars becomes a few hundred thousand dollars...."
If I file suit against someone, I'd better be willing to prove all elements of the loss. Else my suit should (rightfully) be thown out on it's ear, my business fined, and my attorney facing disbarment for bringing a friviolous suit.
Our courts are here to correct real injustices. They are not here to protect outmoded business models, monopoly interests, or "pie in the sky" patents.
That said, file sharing of copyrighted intellectual property whose owners do not agree to share them without fee is wrong. It's one thing for Linus et al to give away a very valuable program (the Linux Kernel), it's quite another to rip someone's music and blast it out without compensation if they did not agree to let you do so.
The real answer here is a common micropayment system (a tip jar), and to simply let RIAA and their anal retentive and grossly over exagerated 'damages' go the same way as coal oil lamps. They just aren't needed today because technology and the consumer have moved beyond their ability to provide a valued and valuable service.
Re:Please, keep digging your grave. :) (Score:5, Insightful)
Please, people, don't get any of your legal education from TV. I work with TV writers. They are definitely not scholars in any sense of the word. They will create plot devices that brazenly ignore the law of the land, the laws of human behavior, and/or the laws of physics if it'll move the story forward.
Re:What do you think? (Score:1, Insightful)
7. This is absolutely critical. Most ISPs assign IP number through DHCP. The numbers are only leased for a short time. If the end-user's computer doesn't renew the lease (perhaps because it is shut off or the connection dropped) the number will be freed up and reassigned to someone else. The time (and timezone) at which the activity was recorded could impact who the IP number was supposed to be assigned to.
It is also critical that the system be synchronized regularly. Some systems will log when the clock is synchronized and record the amount of the adjustment. It's also important to note what the clock was synchronized with. Our nation's official time keeper is the U.S. Naval Observatory [navy.mil]. They run an NTP [wikipedia.org] server at tick.usno.navy.mil.
9. These are presumably the logs Dr. Jacobson analyzed to conclude no wireless adapter was used, so they should exist. The IP headers will tell you if loose source routing was used (one form of IP spoofing). There should be timestamps on the recorded packets which will tell you latency between MediaSentry and Ms. Lindor. If the latency is less than the speed of light (about 20ms from New York to California) then you know something fishy is going on. It will also give you an idea of what the transfer rate was. If it exceeds the service Ms. Lindor had subscribed to, you again know something is going on. Kazaa likely also includes a wealth of information in its layer of the protocol stack.
The logs may indicate many failed attempts to download files. If the infringer's machine was not able to respond to most download requests it would put an upper bound on damages.
You can set up your own test to prove that Dr. Jacobson's claim about wireless is bogus. Your own test would produce packets very similar to those from the logs.
11. Most software has bugs. Software that isn't exposed to the general public isn't tested as well and consequently has more bugs. It is virtually guaranteed any custom software MediaSentry developed has bugs in it. You need to determine if there were any bugs that would impact the claims MediaSentry is making.
13. If MediaSentry downloaded documents suggesting the machine belonged to someone else it would certainly be pertinent to the defense. Many a public figure has learned the hard way that Word documents record the user who created them. MP3 files contain IDT tags that can include arbitrary information (the actual information depends on the software that created the file). If the documents contain a name and that person uses the same DHCP server as Ms. Lindor it would be a huge red flag that the other person had a lease on the infringing IP number when the documents were downloaded.
16. 11 files in three seconds?? The logs from paragraph 9 would be interesting here.
27. As mentioned earlier the clocks are critical. If MediaSentry and Verizon were out of sync the IP number and all the evidence associated with it are meaningless as evidence.
Re:Discovery rules in Civil vs. Criminal cases? (Score:5, Insightful)
That's not what's going on here. It's more along the lines of "This person accused me of something bad, so let me start with determining the credibility of their evidence, the chain of custody for that evidence, and the error rate for the methods they used to collect said evidence"
Comparing this to the "slutty girl" defense is inaccurate. The defense is challenging the methods that MediaSentry used to collect the evidence. Although it would be interesting to know how many of the subpoenas issued to ISPs have been responded to with "That IP address was not assigned to a subscriber at time in question" as it would directly relate to the error rate of MediaSentry's methods.
Re:This is standard civil procedure (Score:4, Insightful)
Re:What do you think? (Score:2, Insightful)
To quote the judge:
Re:Absolutely (Score:3, Insightful)
Sooner or later, they're going to wind up suing the kid of a congressman. I can't wait.
Re:Disclose Evidence? (Score:5, Insightful)
RIAA Lawyer: We have proof, Your Honor!
Judge: Great! Can I see it?
RIAA Lawyer: Nah!
Judge: That doesn't sound too lawyerly.
RIAA Lawyer: Well, I could call it "proprietary and confidential!"
Judge: Uhm, okay then.
Re:This is standard civil procedure-INSANE WORLD (Score:3, Insightful)
Excuse me, but you are operating in a Sane World where these things all come out in the wash at trial, and the wrong party gets punished. The RIAA isn't operating under those rules. Their punishment is inflicted by their ability to drag this out forever, with tens of thousands of dollars of legal fees inflicted on the Defendant, who never gets his/her day in court, or (usually) legal fees reimbursed after the RIAA then cuts and runs by a dismissal WITHOUT prejudice once it's clear they're about to lose. They've just screwed you royally because you're guilty in their eyes -- even if never under the law itself -- and gotten away with it!