Friday, March 30, 2007

Brooklyn Magistrate Judge Rules that RIAA Does Not Have to Disclose MediaSentry Agreements in UMG v. Lindor

Magistrate Robert M. Levy has ruled in UMG v. Lindor that the RIAA does not have to turn over its agreements with MediaSentry.

The Magistrate made no findings as to privilege or confidentiality, but held that the documents were irrelevant:

March 30, 2007, Granting RIAA Motion for Protective Order*

Ms. Lindor's attorneys filed an objection to the Magistrate Judge's order:

Defendant's Notice of Objection to March 30, 2007, Granting RIAA Motion for Protective Order Concerning MediaSentry agreements*

* 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

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13 comments:

Alter_Fritz said...

OK, now that it was made clear that this pending stuff was irrelevant isn't it time now to decide over the summery judgement motions that were made a while ago?
If I remember correctly the Judge said he would want to wait til discovery was finished. and then there was this ruling about closing of discovery 60 days after HDD inspection if I remember correctly.

The inspection was long ago, the findings of the expert that there was nothing on the disk that inculpate the defendant is now known and there are no discovery issues open with respect to the defendant.
So your honourable Judges Trager/Levy, don't you think its time to rule now? Plaintiffs came up with always new issues and motions, to prolong this case (and unfortunately defendants lawyer did go along with them in this behaviour).

Isn't it time now to rule? It seems that all relevant facts are on the table and clear now.

AMD FanBoi said...

Shouldn't the defense be allowed to decide what's relevant to their case or not after inspecting the evidence? I gather that defense was not allowed to see these items because the judge couldn't decide why they would be relevant. As such, arguing for their importance is kind of hard when you can't see what's there in the first place. Plaintiff's sure thought it was something they wanted to keep hidden away.

Is this an appealable issue? That the judge kept out evidence that would have helped the defendant's case?

Igor said...

I can see this being grounds for appeal, no?

Anonymous said...

This, frankly, is appalling.

The RIAA claimed that the agreement between itself and Media sentry was irrelevant because the investigator didn't get a cut and therefore couldn't possibly be motivated financially by the agreement. However, the court and the RIAA overlooked the possibility of institutional bias in the way investigations are done. The sloppiness of these "investigations" by Media Sentry may be directly related to the specifics of the financial arrangement with the RIAA and is most definitely related to the fact that the RIAA helped specify and create the investigative methods and protocols. The only way the agreement between the RIAA and Media Sentry could be "irrelevant" is if the "evidence" provided by Media Sentry is thrown out.

The agreement provides facts that challenge the credibility of Media Sentry. The facts should have been left in to allow a jury to decide their relevance.

In addition, the oral arguments suggested that the agreements state areas that the RIAA does not search. While these omissions may be related to specific protocols, I would not be surprised if Media Sentry avoids searching IP addresses of allies to avoid embarrassing RIAA members and Politicians.

ryan said...

Ok just to check I have the relivant process right in my head. Does this go back to the Magistrate Judge or over seaking review / etc from the District Judge?

Ray Beckerman said...

By filing our objection we have asked the District Court Judge to review the Magistrate Judge's ruling.

AMD FanBoi said...

One reason to want to hide this information is that allegedly it states the type of filesharers they can't find. What if the defendant actually fell into that category of ones they say they can't really find? After all, if this is the case, then they're admitting to flaws in their method of searching and identifying people with shared directories.

ryan said...

Yah, kuz it would be shocking and stuff if they couldn't find you sharing files if you, oh for example, WERN'T. :P

Seriously though, they KNOW they will get owned like they did in Europe if they let their 'proprietary' system out to get peer reviewed. Even letting the instructions, conditions and rules they follow will likely get them torn apart more, let alone if they only spend 20 min or $15 per case or something silly like that on each investigation. I wish you best of luck on this one Ray, admittedly they have given you lots of ammo elsewhere, but at some point I assume a judge somewhere is going to have to give access to the MediaSentry systems as it's all they have. It is of course unfair (not to say the least of unlawful) to let one side just do a “take our word for it, we have evidence” and move on. Of course that WOULD speed things along but I believe most of us would agree that we LIKE the fact that courts have moved past the simple requirement of claims needing basis to be true. You know, evidence and stuff. As much fun as the witch trials were I think it's best we moved on :)

recordjackethistorian said...

On several occasions and in front of several courts the RIAA represented by their lawyers have told the court that because they had a print out from a computer that it was truthful.

Unfortunately for the RIAA, nothing could be further from the truth.
Computers cannot tell the truth and they cannot lie. They are mere machines. Any high school computer science student knows that a computer executes its program line by line until it has finished.

Nothing says that the program has to print out what is factual. The computer can be instructed to print out anything the programmer wants it to. If the programmer decides in his program 1 plus 1 will eaqual 5, then in every case that is what the computer will do when presented with the equation 1 plus 1.

Stating that the Media Sentries computers have regurgitated certain pieces of information doesn't say anything about their factual nature. We cannot be sure what those reports mean unless we know what programs the computers are running. Preferably, defense would like to evaluate the source code itself.


What defiance council needs is not the contracts the RIAA has with Media Sentry, they need to see th source code for the programs Media Sentry runs. There is no other way to be sure what that data means. The state of California has enacted stiff laws about voting machines which disallowed Diebold the right to sell voting machines because the veracity of their programs was in doubt and indeed had been proven faulty in many cases.

Further, the computer operators must be deposed to find out how they operated the programs and exactly how they set the program up to mine this data. It is not just a touch of a button, someone must install and configure the program, then set the parameters under which it will collect the data. AS interesting as the Media Sentry contracts may be, they will not get at the accuracy of what Media Sentry does.

cheers
recordjackethistorian

Ray Beckerman said...

dear recordjackthehistorian...

as noted in our objection the agreements were being sought for impeachment purposes... i.e. to show what the scope of his retention was, what his compensation is, etc.

no one said that the agreements are the only thing we need

Ray Beckerman said...

alter_fritz wrote:

Plaintiffs came up with always new issues and motions, to prolong this case (and unfortunately defendants lawyer did go along with them in this behaviour).

How can you say that about me? Haven't I tried to end this case?
Are you going to tell me that, once the judge rules that we have to go through discovery, that I should let the RIAA have whatever it wants and I should ask for nothing, in order avoid "new issues and motions"? You're telling me that that would be an appropriate way to practice law? I'm surprised at you.

recordjackethistorian said...

Ray:

I should have been a little clearer in my suggestions. I did not mean that the Media Sentry contracts unimportant. I do not think that you should abandon the quest for these contracts, merely that there were other issues around Media Sentry that could be challeneged

I have seen the issue I've raised here quite a number of times and never seen attempts to find out what Media Sentry actually does -- or if it does what they claim it does.

I find it most irritating when I see the RIAA (or anyone else) attempting to hide the truth behind a misinterpretation of the way computers and the Internet work. Its really dirty and underhanded to play on a judges or the public's ignorance of certain basic facts.

It is one thing to argue a case for your client with all due diligence, and quite another thing to try to win by misrepresenting some basic facts.

cheers.
recrodjackethistorian
(a.k.a david)

Alter_Fritz said...

Ray asked me:
"Haven't I tried to end this case?"

If I remember correctly , yes, you tried at least 2 times but the judge was not ready for your suggestions.

"Are you going to tell me that, once the judge rules that we have to go through discovery, that I should let the RIAA have whatever it wants and I should ask for nothing[...]"

I'm not telling that, what i can do is cite another lawyers webpage ; "our clients' legal goals gets accomplished, not just discussed.
If I look at the TOC the Lindor one is relatively long compared to others. (And yes , I give you the benefit of a doubt that you might have more docs in this case to publish compared to other cases simply because you are the lawyer and you have ALL documents at hand, while in other cases there might be equally many litigation docs, but those other laywers might not furnish you with a copy.)

My initial comment part in paranthesis sparked from my remembering of the filed documents regarding the headshot pictures of the kids as example.
I think that I can emphasize your motivation to say; you guys come up with the requested docs first, then you can have your stupid pictures. But if I try to emphasize myself into the judges POV, this case looks like that two very strong Egos (Mr. B and Mr. RIAA-G) play minor motion practice battles; the client's case gets discussed not accomplished. (Note that his clients case gets accomplished non the less with such a behaviour, since their goal isn't an actual trial and maybe a guilty or not ruling)

While the judge have to rule about some minor motions, even he gets a bit confused so that he simply referes as explaination why he rules one way or another and referes to prior conferences/motion rulings/discussions/decissions that aren't ruled yet.

Take for example the discovery cut-off date; It was set once, then there was an extension ruling that gave a clear mark (60 days after HDD).
We have seen how RIAA gamed this issue with "draft" reports and such and have heard Mr. Gabriels argument about "confusing the record with 7 supplemental reports".
Instead of calmly but clearly pointing out to the judge how RIAA acts in bad faith and violates the judges orders you are moving along with RIAA's motion gaming tactics.

Take the Foster case where Judge West has set clear deadlines. RIAA non the less is trying to game. Judge West is still the one who makes clear that he is willed to enforce his prior deadline rulings and that he is not amused about their tactics.
It is my impression that judges Trager/Levy have lost a bit of oversight in Lindor thats why RIAA can get away with their stuff in this case here.

So instead of playing along with RIAA's behaviour it might be better to take a step back, get an oversight over what orders of Levy/Trager are on the table but lost under more and more motion practice and just write this one letter where you point out what is outstanding, where the case is after this prolonged litigation and suggest to them that they might say to themself "enough is enough, lets get this case accomplished and not only clogging up our court calender one unresolved motion after another"


"You're telling me that that would be an appropriate way to practice law?"

Since I can honestly say IANAL, I don't know what an appropriate way to practice law is. And my initial comment wasn't meant as such!
It was meant to point out that RIAA is the one to blame why this case is still going on, the part in paranthesis was not meant to critizise you or undermine your Ego as a litigation attorney with more then 20 years practise. (I believe that you don't think i'm a "RIAA-troll")
It's my observation that you "award" this label not only to guys over at slashdot that are clearly trolls, but also to guys that are critic to some of your litigation strategies in a more general way.

Maybe you should read that sentence in question in the initial comment not as a critic on your litigation strategy, but more like a hint to take this step back from the fight, clear the smoke and mirrors RIAA has build up and just help judges Trager/Levy to get a clear view on the underlying facts in this case back.