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."
Please, keep digging your grave. :) (Score:4, Interesting)
Disclose to defence at least (Score:5, Interesting)
Great! (Score:4, Interesting)
Re:Discovery rules in Civil vs. Criminal cases? (Score:2, Interesting)
Re:Discovery rules in Civil vs. Criminal cases? (Score:5, Interesting)
Nope, the amount of discovery in civil cases often dwarfs that of even the largest, most complex criminal cases, and the rules are similar. You can refuse to produce documents on certain bases, including that it involves proprietary information or business secrets, but you have to convince the judge of this, which can be tough. A lot of times the parties will enter into confidentiality agreements, where only the lawyers (and possibly expert witnesses) will gain access to the produced information, not the clients. I think it would be tough to convince the judge that a confidentiality agreement wouldn't protect them.
Similar to Drunk Driving defense... (Score:5, Interesting)
If I remember right the judge in the case (Florida AFAIK) ruled in favor of the defendent. If the Breath-a-lizer company didn't turn over the requested documents, the defendent was off the hook. Don't know if the case has been overturned though.
What do you think? (Score:5, Interesting)
Re:Similar to Drunk Driving defense... (Score:5, Interesting)
In any event, proprietary software shouldn't be when people's lives are on the line. That includes losing judgments on the order of a quarter million dollars (as happened in a recent RIAA case.)
Re:Discovery rules in Civil vs. Criminal cases? (Score:5, Interesting)
We take all kinds of care to document everything about these systems and their reliability, and we have retention schedules for everything and we follow them. While in a court case we might attempt to limit the scope of discovery we ultimately would be prepared to defend our data. Otherwise a computer log isn't evidence any more than a piece of paper typed up on a typewriter 10 minutes before the trial.
Looking at the laundry list, I saw one or two items that might have been a little broad, but most of this stuff is directly limited to the scope of the issues at hand and the reliability of the evidence. If there were 25 precedents that this particular software was bulletproof the plaintiffs might get the scope of discovery narrowed down a little further (maybe just to demonstrate that the software is the software that is considered reliable), but as things currently stand I'd be surprised if the judge didn't order the plaintiff to produce the supporting evidence or have their documentation ruled inadmissible (which would pretty-much gut their case).
IANAL though...
Absolutely (Score:4, Interesting)
1. Are they using a homegrown sniffer that might be prone to capturing bad data, or are they using proven tools, like tcpdump, ethereal/Wireshark, etc.?
2. Are they synchronizing their time against a public NTP server before they go on their fishing expeditions? Or is their machine's time (and thus their subpoena for the user of a particular IP address at a particular time) perhaps off by a couple of hours?
3. Do they actually download the file being shared, or some portion thereof? Do they analyze that file to see if it is what they think it is? Or are they still relying on file names as some sort of proof?
The answers to these questions, among many others, are fundamental to the defense's ability to mount, well, a defense. Does there exist in civil law an equivalent to the confrontation clause, the "right to face one's accuser?" In these matters, it seems as though the accuser is some software package at BayTSP or SafeNet, that nobody knows anything about. You shouldn't be able to win a judgment against another party based on screen shots and testimony from one bogus "expert."
Re:Similar to Drunk Driving defense... (Score:4, Interesting)
His response what that it would be very unlikely to be granted. His reasoning (without being able to consult the actual laws) was that he heblives that the brethalyzer is an "approved" devise for measuring blood alcohol. This was set by the lawmakers, and it is his job to enforce the laws, which clearly say that this is an approved device.
If you have a problem with this, take it up with the law makers.
I found this to be quite interesting, thought I'd pas it along.
Re:What do you think? (Score:4, Interesting)
Re:What do you think? (Score:5, Interesting)
It turns out that between the time when the alleged sharing occured, and when I got the letter, the company had changed names 3 times (or there were a large number of dummy companies that had contracted eachother out or something, it is really hard to tell the difference in these situations). When I finally tracked down a phone number for the building that these guys were supposedly working in, I called it. A machine picked up (customized with the name of the company and everything), but no one was in and the voicemailboxes on every extension were full.
Just take a look at the Media Defender leaks. These companies are often engaged in illegal activity, from fraud to extortion. They are not an industry that you want to trust to give you accurate information. These people have nothing to gain by making their scanners have more accurate results, they just want to see more results, so of course you should be able to assess their techniques (especially their source code) to make sure everything is in order.
Re:Absolutely (Score:4, Interesting)
Based upon their history, the ability of their chosen victim to financially support a defence against their criminal actions, apart from the odd glitch, seems to be the main factor in deciding who they will attempt to extort a payment from.
I wonder if they also searched for infected PCs as that is a viable defence for the owner of the PC, but they failed to advise those people that their PC was infected, technically making the investigators an accessory after the fact, a criminal offence.
obvious rebuttal (Score:4, Interesting)
Re:Similar to Drunk Driving defense... (Score:3, Interesting)
More specifically, in the Discovery period, the adversarial lawyer can demand evidence that has a "semblance of relevance", just in case it might be relevant. If it's not really relevant the judge would rule it so in voir dire before a jury heard it. Of course, the Discovery may be more limited in the US, I don't know anything about that. Your friend the judge, talking about breathalysers, might change his mind if one of the lawyers provided, say, precedents from the US courts where the source and schematics of a breathalyser machine has already been opened up. Canadian Courts can accept US decisions as precedent if a Canadian judge hasn't already decided on an issue.
Exhibit A - Tom Mizzone declaration (Score:5, Interesting)
which is silly on face. The computer (that they claim was Lindor's) didn't have a traceroute TO it from Media Sentry ON it...
So, clearly, the people producing these documents are -- just plain not competent.
In fact, DEFG and H all aren't on "lindor's computer"
uh.... And I'm sure that's been commented on before, but I just noticed it.
Re:Of course, how else can the evid. be valid? (Score:3, Interesting)
Of course, you couldn't publish a paper without that information, but that's the way the scientific community works.
While I hardly give the RIAA the benefit of the doubt, I've learned that there's a wide spectrum between "no information" and "full disclosure".
Re:This is standard civil procedure (Score:2, Interesting)
Why would a judge let them get away with ignoring Daubert?
Is it the judge's intention to let the record company proceed with a weak case which is likely to be appealed? And then let a higher court set a precedent that rips the bottom out of all the RIAA cases?
I thought Judges preferred to avoid being corrected on appeal?
Re:Discovery rules in Civil vs. Criminal cases? (Score:1, Interesting)