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)
Re:Disclose Evidence? (Score:4, Insightful)
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.
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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:Exhibit A - Tom Mizzone declaration (Score:5, Funny)
That woul_ mak_ typin_ _ifficult at b_st, and impossibl_ at its worst. I'_ _at_ to los_ my _,_,_,_ an_ _ k_ys.
Re:Disclose Evidence? (Score:4, Funny)
Please, keep digging your grave. :) (Score:4, Interesting)
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Or bankrupt and irrelevant. Any of those is fine with me, so long as we finally stop hearing about them.
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Keep playing little games like this, RIAA & MPAA, and you will find yourselves facing the Supreme Court.
And going before our new more right-leaning and business-friendly SCOTUS is supposed to scare them.....how, exactly?
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And going before our new more right-leaning and business-friendly SCOTUS is supposed to scare them.....how, exactly?
When a court leans toward conservative legal principles, the basis in legal principles is well founded, and usually tends toward conservative policy positions. But legal principles and policy positions don't always overlap, and the particular outcome in a case could surprise you. A good example of this is how Bartlett's conservative supreme court nominee (on the West Wing) was nevertheless opposed to federal legislation defining marriage as being between a man and a woman -- not because he disagreed with that definition of marriage, but because he felt that it was beyond the scope of Congress to define marriage. Similarly, if SCOTUS is business friendly, that doesn't mean they're going to countenance gross injustice and thuggery by an industry.
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.
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Disclose to defence at least (Score:5, Interesting)
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(Since the pdf is of a scanned document, any spelling errors are mine.)
"Rather, defendant's counsel appears to be engaged in a fishing expedition that this Court has already found to be improper. Specifically, much of the information that the defendant seeks is precisely the same information that she unsuccessfully sought when this Court denied her motion to compel and granted plaintiffs' motion for protective order on March 30, 2007. Defendant cannot obtain through the backdoo
Re:Disclose to defence at least (Score:5, Informative)
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A 35mm camera, and the process of taking photos is not criminal when not in the hands of a private investigator, but in the hands of someone CONDUCTING AN INVESTIGATION for pay, under contract from a company or a law firm CAN be criminal. It's not the tool, it's the use to which the tool is put.
Great! (Score:4, Interesting)
Re:Great! (Score:5, Insightful)
Extortion (Score:5, Insightful)
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'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!
No, they shouldn't (Score:5, Insightful)
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It seems to me that the *AA groups are confusing their own morality (and profits) with the laws of their country.. Even if it's just a linguistic liberty (equating 'sharing' or 'copying' with 'stealing'), they need to remember that the laws apply to them too, even if they're a 'legitimate business', and the people they're suing are 'criminals'.
Smackdown (Score:2)
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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.
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:Similar to Drunk Driving defense... (Score:5, Informative)
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.
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The RIAA isn't using an "approved" device - that is a big difference, and why they are being asked to provide details of the device.
For the amount they're pursuing... (Score:2, Informative)
...relative to the income and and standards of living of the people they're pursuing, I feel it would be an outrage if they didn't have to provide more.
Then again, civil cases just require a preponderance of the evidence to be in favor of one party or another. If the defense does its job in establishing doubts as to the RIAA's methodology, it would probably behoove the RIAA to disclose its methodologies in great detail to back up its claims of investigative accuracy, which would then subject them to more
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.
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Damn! I almost said this with a straight face, let me try again!
Re:Of course, how else can the evid. be valid? (Score:4, Informative)
This argument is really just claiming that the same rigorous standards of evidence should be applied to technology as well.
Re:Of course, how else can the evid. be valid? (Score:5, Funny)
Me:
Physicist in audience: Sorry, can you explain your methods?
Me: No
[5 seconds of silence]
Entire conference hall bursts into laughter
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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".
ObHelpDesk (Score:2)
No, they can drop their case (Score:2)
division by zero error (Score:4, Insightful)
What do you think? (Score:5, Interesting)
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To quote the judge:
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Re:What do you think? (Score:4, Insightful)
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: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.
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Playing the devil's advocate here... While I loathe the idea of selective enforcement, I doubt that would hold any water as a defense. "They sued me but they didn't sue a
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.
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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.
Well said.
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.
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The question is one of whether MediaSentry can be trusted that the evidence produced was gathered in a means that is in accordance with law, and that does not have flaws in methodology that could cause the evidence produced to be incorrect.
If the defendant is given no opportunity to examine the evidence-gathering methodology, then the evidence should be taken as hearsay, since it is only the word of MediaSentry that validates the evidence.
Obv
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.
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Because I am not a lawyer, I have no idea if this would work:
Tell them it is not in their best interest to keep it hidden. Tell them that if they do, whatever ends up being admissible can be torn to shreds by any of the arguments found in the other comments already.
In particular, you might generate some evidence of your own. Disclose names and IP addresses that conflict with the ones MediaSentry pro
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Of course, taking three seconds to log might be suspect, but we have no context for that.
Do they even have the right? (Score:2)
A difficult situation... (Score:2)
On the other habd, their methods may be completely unsound, their evidence may not actually be evidence (file sice and name, e.g. are not enough to identify the contents of a file), and their experts may just be incompetent enough to not see where they are wrong.
I think, hard as it is on them, full disclosure of their methods i
Of course they do! (Score:2)
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.
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in many states (maybe even all, by now?) when you get a speeding ticket, ANY cop can show up in court and be 'the accusor'. its fake, but our system is built on fakeness, many times
its designed to GET you, not to give you FAIRNESS.
the old trick of changing your court date to try to lose the traffic cop in the shuffle does not work anymore. and so since that is 'broken' I see no reason why our 'justice' system isn't also similarly broken, to th
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in many states (maybe even all, by now?) when you get a speeding ticket, ANY cop can show up in court and be 'the accusor'. its fake, but our system is built on fakeness, many times ;(
Interesting, I'd never heard that. I'd like to see it go to the Supreme Court, because I could see them having a problem with it.
Alternately, I'd ask the cop that does show up the same questions I'd ask the actual cop. "What was the angle of your car relative to the traveling vehicles?" "How much traffic was there?" etc.
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BZZZZZZT!!!! And thank you for playing. Here's [usconstitution.net] your lovely parting gift -- a copy of the Sixth Amendment.
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.
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:This is standard civil procedure (Score:5, Informative)
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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:This is standard civil procedure (Score:4, Insightful)
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 ten
What I don't get (Score:2)
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http://www.ilrweb.com/viewILRPDFfull.asp?filename=atlantic_dangler_071023DecisionDenyDefaultJudgmentMotion [ilrweb.com]
I am not sure how useful, but hopefully this ruling may be relevant.
Dirty Business (Score:3, Funny)
SafeNet: I'm afraid that's proprietary and confidential.
Lindor: If you don't show me the evidence, I'll demand it in court!
SafeNet: Uh oh, hold on, I'll get it...
RIAA: Don't do it, Boys!
SafeNet: But this is just one stupid lawsuit! If we don't show the evidence our whole sch..., I mean, "business model" will be over!
Lindor: Business model? What?
RIAA: Did SafeNet just say that? No, Ms. Lindor, they didn't. Hey, look over there!
RIAA's pseudocode (Score:4, Funny)
for( i=0, i lessthan infinity, i++ ){
generate random IP address
assign name "John Doe #i"
serve court order
}
}
Jury of "Fact" (Score:2)
*1796, a statute in North Carolina made it unlawful, "in delivering a charge to the petit-jury, to given an opinion whether a fact is fully or sufficiently proved," si
obvious rebuttal (Score:4, Interesting)
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.
There oughta be a law (Score:2)
Or, failing that, some kind of Bill of Rights or something [cornell.edu], which requires that a defendant be presented with all of the evidence being used against him or her.
Why is is that in the USA only Criminal proceedings are held to reasonable standards of fairness while "civil" cases are all about which side can screw the other guy faster?
Discovery r001z (Score:2)
Civil discovery is a truly awful experience (bare all), and _they_ started this suit. They ought to have known they would have to produce anything connected to anything possibly introduced into evidence, and anything their opponents might want that could potentially lead to evidence. H3ll yes: logs, and then answer interrogatories about why they choose to prosecute some and not others.
Of course lawyers will argue and object. They're paid to d
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I was under the impression that a judge in civil cases has a lot of discretion. There is plenty of discovery orders in civil cases. While the judge may not agree to say "Let the other side see...", he may say "Show me, I want to see
Re:Discovery rules in Civil vs. Criminal cases? (Score:5, Informative)
On the other hand, there is now precedent that you can't hide behind "proprietary methods"; I think there was the case of a manufacturer of breathalyzer equipment that ran into this problem. Of course they can refuse to open up their "proprietary methods", but then any evidence based on these proprietary methods would be invalid. In case of the breathalyzer equipment, nobody could actually force them to open up their code, but in practice every case based on their equipment would have been dropped, and the police would never again have bought their equipment.
Re:Discovery rules in Civil vs. Criminal cases? (Score:5, Insightful)
How far does judicial credulousness stretch these days?
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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: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.
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True, but wouldn't copyright violations would be tried in federal court, as they are granted by federal law?
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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.
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...
Re:Discovery rules in Civil vs. Criminal cases? (Score:5, Insightful)
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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.
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What is going on in the music industry is completely different. They state they have technology that can track down file traders. This is not old technology that has been previously tested in court. This is somet