Thursday, December 21, 2006

RIAA Moves to Compel Marie Lindor's Son to Produce His Computer and His Music Listening Devices

In UMG v. Lindor, the RIAA has made a motion to compel Ms. Lindor's son to turn over his computer and music listening devices:

Plaintiffs' Motion to Compel*
Richard Gabriel Declaration in Support of Plaintiffs' Motion to Compel*
Douglas Jacobson Declaration in Support of Plaintiffs' Motion to Compel*
Plaintiffs' Memorandum of Law in Support of Motion to Compel*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online 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

1 comment:

Alter_Fritz said...

some observations, comments regarding the Declaration of the RIAA expert Dr. Doug Jacobsen:

In 4. he lists what items he has reviewed. with exception of 4 i. it's all hearsay stuff from other parties that was created without his professional involvement and his experiences he descibes in the prior points. So he also can say something about those things from a hearsay POV only!

In 5. he explaines that "the computer" had a public IP address and was not connected via a wireless router. I'm no expert at all, but I too know that windows saves information regarding its network setup in the registry, so this findings here could be easily made and they are very probably correct. BUT he is saying "this computer was not". Since the plaintiffs claim that the harddrive they got is not the one they are searching for, the plaintiffs themself proved the point that his finding with respect to the IP setup is useless because he has examined a (alledgedly wrong) HDD and not a computer so his sentence could only be "That particular installation of windows on the HDD I reviewed had a network setup that make it highly unlikely that this HDD was used in a computer that was connected to the internet via a (wireless) router. Since my further findings are that I can't find traces of KaZaA on this HDD I was tought to conclude that this is not the HDD that was used in a Computer that Infringed plaintiffs copyrights, therefore from a logical POV I can't make any scientific expert findings about the network setup at the time of the alledged infringement from examining THIS HDD"

in 6. he explained that a forensic examination could show if filesharingsoftware was downloaded to that computer harddrive or if sound- or other files were on the harddrive and could possibly being deleted.
This findings are correct according to my knowledge how information is stored on HDD's and what happends to files if the are being thrown into the trashbin and then gets "deleted".
However beside his explaination as an expert about this technical fact he made assumptions that are not necessary scientific.
He states that the harddrive "showed little usage at all, as evidenced by the lack of user created files and e-mails, and did not reveal the evidence noted above, which I believe the correct hard drive would certainly have shown.
He did not stated that he checked for example the power on hours of the disk to determin if this is a long time used HDD for example that was already the "correct hard drive".
The fact that there were a "lack of user created files" is in contrast not a prove that this is the wrong harddrive but a prove that it IS the right one and the motion to compel Mr Raymond should not be granted! Because Mr Gabriel pointed out that it is undisputed that Mr. Raymond "[...],cleared space, reinstalled the operating system,[...].
By doing exactly that kind of work to the harddrive that Mr Gabriel claims is the one that they want it is normal that this harddrive shows a "lack of user created files".
So Dr. Jacobsen is a) finding the forensic facts that one would expect according to the explaination of Mr. Gabriel -which would be the logical conclusion that it is in fact the right disk- but b) finds because he has found no traces of KaZaa that it must be a different HDD.
If the Plaintiffs would argue logical now they could claim that the HDD was cleaned by someone that knows how to clean a HDD correctly that no traces of formerly saved files are left behind. But they could not argue that because they could not find traces of alledgedly downloaded files that this is not the HDD that was the one thay requested in their Papers and the motion to compel should be stricken by the judge due to illogical, unsubstantiated and their argumentation contradicting statements from Mr Gabriel and the RIAA expert in this case!

In 7. the RIAA-expert makes statement with regards to personal private information that has nothing to do with finding traces of KaZaA or probably infringing copies of soundrecordings on the HDD! He also did mention for example e-mails in 6. specificly.
The plaintiffs are not accusing Lindor that she traded songs via email!
Having this RIAA-expert looking at this kind of private information like resumes and emails has nothing to do with what he was supposed to do (finding evidence for alldged copyrightinfringement), and his admitting in 7. that he watched oviously not only the meta data of those files (like creation time, file change time or last access time) but that he also willfully read the content of this private files.
Here this RIAAExpert clearly shows why it is important to have a neutral forensic expert doing the investigation so that these kind of private informations that has nothing to do with the allegations like emails and resumes do not fall in the hand of the Plaintiffs and their "working in the field of childpornography [3. d + e]"-expert

P.S. If a reader of this blog has windows and is now curious what the RIAA expert can see when he searches for traces of files, the reader can use this tiny free tool to take a look at his HDD on a very low level to watch for example at a specific text file he creates then "deletes"it and watches again what is on the HDD at the place where the textfile was before.
(it is no expert forensic tool, has no real forensic function, but gives a good idea what such an expert can see on a harddrive even if the unaware reader of this blog things he deleted his personal resume before selling the drive on ebay!)
(disclaimer usage on your own risk, if you change instead of just watching mportant sectors on your HDD (the Boot Sector for example) you render your windows installation unusable!)

WHEREFOR this blogcommenter recomends that the motion to compel should be stricken! If someone would ask me with my tiny technological knowledge for a recommendation only of course. ;-)