Friday, March 17, 2006

Oregon District Judge denies Recording Industry Motion to Compel Hard drive inspection. Appoints Neutral Expert.

We've received a report that in Atlantic v. Andersen, where the RIAA made a motion to compel complete access to Tanya Andersen's computer to make a "mirror image" of her hard drive, federal judge Donald Ashmanskas declined to allow that, and instead granted Ms. Andersen's request to appoint a neutral expert who would be given a specific list of files and an identified protocol to review her computer.

The RIAA had proposed using "specialized tools and methods" along with "licensed software" and a "special device" to accomplish their review by private forensic expert. The judge did not feel that both parties interests were adequately protected with this process.

The following notation appears on the court record:

"MINUTES of Proceedings: Record of Telephone Status Conference before Judge Ashmanskas - ORDER: (1) Stay of this matter pending conclusion of computer hard drive examination by a neutral expert; (2) Cost of hard drive examination to be born by plaintiffs at this time, with leave to request allocation of costs; (3) Denying plaintiffs' motion[36] to compel as moot; (4) Striking the 4/4/06 telephone status conference. James Ruh, William Patton, Nadia Sarkis present as counsel for plaintiff(s). James Murphy, Lory Lybeck, Brian Hodges present as counsel for defendant. Court Reporter: None. Donald C. Ashmanskas presiding."

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs


eclectica said...

I wonder why Andersen would even consent to having her computer examined at all. It seems better for her to refuse to allow for it to be examined.

qwasinaut01 said...

This might be an opportunity to find out exactly how confident the RIAA is that Ms. Andersen does, in fact, have copyrighted materials on her computer. If they claim that she shared specific files but those files are not found on her computer it should be very detrimental to their case.

Ergo, they should only use a "neutral expert" if they are very confident that he (or she) will find what the RIAA expects.

Here is also where the "making available" argument becomes critical for the RIAA. Finding copies of copyrighted materials on Ms. Andersen's computer alone doesn't help their case - there are (as far as I know) legitimate ways in which those materials could have gotten on her computer. They have to show that the materials are there and that Ms. Andersen broke the law.

If the "making available" argument holds up in court the RIAA could make a strong case if the files are simply sitting in a shared folder. If it doesn't hold up, though, then they have to show not only that the files are present, but that Ms. Andersen distributed them in violation of copyright law.

That's assuming the files are even there in the first place. I'll be interested to see how this turns out.

qwasinaut01 said...

eclectica: It's not clear to me that she had a choice in the matter. Maybe it's better for her to consent to third party search than to try to object to the search entirely. Or maybe she knows that the materials the RIAA is looking for aren't there to be found, in which case it seems very much in her benefit for a third party to search her computer.

The "we want to mirror the entire hard drive" request seems quite egregious to me, though...

eclectica said...

I've always believed that without access to the hard drive that it would be their word against the defendant's, but even with access to the hard drive it still wouldn't mean that infringement occurred if certain files were found. A filesharing program like eMule shows how many times shared files have been uploaded, but others don't give such information.

When the RIAA provides what they call "evidence", at most all we can be expeceted to do is take their word for it. If the defendant denies it, it is his/her word versus that of the RIAA. The RIAA may have screenshots that they try to show to be evidence, but screenshots can be generated, as The Pirate Bay demonstrates with The Evidence Machine.

StephenH said...

I feel that the judge made the right call in the fact that a neutral expert can examine her hard drive. Tanya clearly beleives she is innocent, and if this expert does not find any evidence of the files in question, RIAA will have serious questions to answer in court.

Tanya Andersen, as you know claims she has never downloaded any music, does not regonize the username the RIAA alleged she used, and was accused of downloading a type of music she did not like.

There are several reasons an innocent user could be targeted by RIAA's campaign. The ISP logs that the companies like MediaSentry rely on, don't really reveal who is actually in front of the computer in question, and sometimes don't even indentify individal computers, or even households. Something as simple as a friend using someone's computer, a broadband router, a NAT device, a wireless router, or a user behind a proxy server can cause an automated bot to point to the wrong person.

Even if the files are there, the RIAA is still going to have to prove that she downloaded them, which there is no forensic witness, fingerprints, or DNA evidence connecting her to the actual downloading of them.

Next of all, If she is innocent, this may give merit to her counterclaims against the labels for privacy invasion, computer fraud and abuse, racketeering, and others. If the RIAA was indeed threatning her based on false evidence to make her pay money, they are guilty of racketeering. Also, if the spying was illegal, they may also be guilty of violating the computer fraud and abuse act.

Emil said...

stephenh: I'm not sure that the judge made the right call at all. If I sued the RIAA for copyright infringement, and fabricated some dubious evidence, would the judge order their hard disks to be examined?

I don't understand what the examination will show: suppose it does reveal the files on her hard disk, then it doesn't prove they were downloaded. Suppose it reveals transfer logs, then it doesn't reveal who transferred the files.

I think her best course of action would be to oppose the examination of her hard disk. I think it sets a dangerous precedent: if you want someone's hard disk examined just file a copyright infringement suit...


StephenH said...


Actually it was Mrs. Andersen's motion the judge granted. The RIAA tried to compel a different protocol, and that was denied.

As you might not understand, Tanya Andersen has NEVER downloaded music. If the files in question aren't there, chances are Tanya WINS THE CASE, and the RIAA LOSES!

Emil said...

Hi Stephen, ok yes sorry I see that.

But I hope this doesn't mean that the RIAA think they can start asking for inspection of people's hard disks.


Alex H said...

IIRC Tanya Anderson offered up her computer to the RIAA when she was first told that they were suing her. The RIAA never took up her offer and that was back in Feb 2005.

Now, apparently they want her hard drive. I think it's propper for the judge to protect her by ordering an independent expert, as the RIAA would have otherwise had access to ALL her info - private, public, relevent and unrelated.

IMHO, the RIAA should have taken her up on her original offer. Now they're in danger of losing the case they seem to be panicking and trying to look tough by officially demanding to see her HD.

On a side note, I don't know about you, but the data on MY hard drive changes a lot in a year and according to her, there was nothing there to begin with. So if they find nothing, is it because the evidence was willfully destroyed and well covered up or is it simply that there were no infringing files at all?

StephenH said...

I Feel that Hard Disk inspection may be the only forensic evidence avilable that proves one is innocent or guilty. I don't think RIAA should get a right to know one's confidential info, via a disk inspection in any case. However, if one decides to challenge RIAA's allegations, they should have the right to have an indepedent party (such as a computer forensics lab) examine the disk (or ghost a copy of it), examine for evidence, and then return it or delete the ghosted copy. There should be safeguards put into the instructions for examination that information unrelated to the case not be looked at, and any personal info clearly guarded and not released to anyone who does not need to know it.

It is possible that people can alter evidence after the case was filed by deleting files, and I do not deny that. However, if there is no evidence that those files were there, and they scan the disk via an Undelete tool, and those files do not have any traces reapper, there is a good chance she is innocent.

I personally think that the judge made the right call. I think an option of having a computer forensics lab examine ones drive, if they beleive they are innocent should be an option presented by the settlement center from the beginning.

eclectica said...

People should not submit their hard drives for evidence because it is not necessary for them to prove their innocence.

Jonathan said...

Has any defendant submitted a photoshopped printout of a Kazaa computer screen in court, "proving" an RIAA computer was offering up multiple copyrighted files from someone else?

I would think that such an example would serve to highlight how unreliable and easily forged such evidence truly is. How does anyone know that Media Sentry (for example) isn't simply providing forged evidence? They're paid a bounty for every IP address, if I understand correctly. Given the RIAA's mass-lawsuit campaign and the difficulty of anyone defending themselves (to say nothing of the likelihood that most of those sued would even try to fight it out), I would think incentives would be high to simply fabricate printouts of evidence identifying "infringers".

Alex H said...

@ Jonathan

Regarding the screenshots, give me five minutes and I can PROVE the RIAA is offering copyrighted material as bait for filesharers.

/opens MS Paint

qwasinaut01 said...

Don't bother with MS Paint or Photoshop or anything like that. Just use the Evidence Machine.

That's much faster and much more convenient...

StephenH said...

What Bait? Do you mean that the RIAA is actually sharing free copies of their own members music to lure us to be sued?

I know sometimes they put up spoofed files, but I was not aware that they were baiting us with real songs!