In UMG v. Lindor, the RIAA has filed objections to the Magistrate's order denying their motion to compel Ms. Lindor's son to turn over the hard drive to his own desktop computer:
April 9, 2007, Objections of RIAA to March 30, 2007, Order, Denying Hard Drive Production*
* 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
6 comments:
Am I reading this right...is RIAA shifting the burden off themselves to show any reason to examine the son's hd to the son to show that it doesn't have any relevant information?
Isn't it hard to prove a negative? And don't they need to prove the positive?
lex RIAA: guilty until proven innocence
why is RIAA-Richard now suggesting in a footnote that a neutral expert examines Woody's HDD's for the court while he up until now was insisting that his "expert" Dr. J . should do it?
If the court should come to the conclusion that the order should be reviewed, then the least it can do is to order RIAA to pay up front in excrow all the costs for the inspection by a neutral expert that RIAA-Richard himself is now suggesting for the court.
And the RIAA will only get paper printouts after the judge has viewed them and determined if they are relevant for the claim or defense of any party from that investigation for review by RIAA's designated "expert"
the defendant did not get the raw packet sniffer data from media sentry did she? So plaintiffs should not get raw data from a non party!
I'm still hoping the defendant files a motion to get raw data and to sanction RIAA for not disclosing it originally--given that the raw data is very relevant to a defense.
"Plaintiffs have reason to believe that Mr. Raymond has access to multiple computers and hard drives. Plaintiffs' request was, thus, reasonably calculated to lead to the discovery of admissible evidence."
And just how, logically, does the second sentence follow from the first? Does the more computers you have make it more reasonable that there's evidence of wrong doing on at least one of them? This truly makes no sense.
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"Plaintiffs were only required to prove that their request for computers and hard drives in Mr. Raymond's possession, custody, or control was reasonably calculated to lead to the discovery of admissible evidence."
I can't see how they've even come close to proving that yet. Especially since they can't prove that any of his computers were ever attached to the Internet account in question at all, let alone at the time that the alleged filesharing was detected.
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"Mr. Raymond could have simply moved the computer hard drive - a small and easily portable device."
Unless this is an external USB hard drive, this is a load of bunk! Removing an internal hard drive from one computer, transporting it, and installing it in another computer, simply to perform filesharing is a major undertaking. Especially since, unless the computers are absolutely identical in their hardware, the drive may not even operate in the second computer due to the different configuration, and/or be so totally messed up in the process that it quits working in either computer. Remember that Windows XP is VERY SENSITIVE to the environment it runs in due to Microsoft's antipiracy stance, and Windows XP will refuse to run at all in a computer when too many components are changed. And while I'm talking about a System Drive here, very few people have separate System and Data drives. Most PCs have a single hard drive in them.
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"Although Mr. Raymond carefully denies that he owns any such devices, he never states that he has none in his possession, custody, or control."
Nitpick, nitpick, nitpick.
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"contrary to Mr. Raymond's testimony, plaintiffs have verified that no wireless router was in use on the day and time that plaintiffs detected the infringing conduct at issue."
Actually, it's highly unlikely that the plaintiffs can say with any certainity at all what was happening at that moment of time at the house in question. They only say they can. Also, the phrase "that plaintiffs detected" is not the same as plaintiff's agent detected. Is Media Sentry a plaintiff like this implies? Can they just be deposed outright now because they are?
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"The computer that was produced showed little usage in general and did not reveal the above-noted evidence, which the correct computer certainly would have had."
So the facts on the computer failed to prove your case. Your argument that this only means that the wrong computer was provided is immensely faulty. It assumes that there is a right computer only waiting to be found, which is a reach.
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"Mr. Raymond actively evaded service for almost one month."
I'd be suing for slander - libel since it's written down here - if you can't prove that contention down to the last period.
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And here's a really big one:
"The evidence shows...(3) the hard drive of the computer that was delivered is not the hard drive that was connected to defendant's Internet account on the date and time in question."
Think about this for a moment. This is big. Plaintiffs used the supplied hard drive to "prove" that no wireless router was in use at the time, and that a Junior Lindor had been in the house using this computer for a resume despite being told no one else used the computer in question. Yet now they say this isn't even the proper hard drive. Doesn't this make all their other facts go away as well? What's that legal term for arguing both sides of a case. Estoppel?
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By the way, how do you do forensic examinations on an iPod? Can you image an iPod and look for traces of whatever music may once have been on it? Or do you destroy its value by taking it apart, voiding any Apple warranty, and ripping out its mass storage device to examine? I've yet to hear any procedure analagous to the normal hard drive examination that is performable on an MP3 player, nor who would be expert to perform it. It takes a different sort of expert than a PC hard drive does.
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They also contend that if the file is found on the MP3 player that it somehow proves defendant's computer connected to the Internet at the time performed the infringment. I DON'T SEE HOW ANYONE CAN CONNECT THOSE DOTS. Even if the file in question was found on an MP3 player, a) you can't prove it is the file Media Sentra saw since there are many perfect digital copies of any P2P file, or b) which computer downloaded it into the player. Maybe someone got it at work from a friend who'd also downloaded that file.
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You know, if the RIAA is allowed to search enough hard drives, they will find evidence of filesharing on at least one of them. Millions of people are said to still be engaged in this activity. As such, the argument that such a search is reasonably calculated to lead to the discovery of admissible evidence is completely true in the abstract. But I believe they have to specify the particular drive to be searched, and can't just go out whole hog and search everything in existence on the basis that person A knows person B knows person c etc., as much as they'd like to.
I particularly like this little piece of fluff (pg 11):
"The hard drive that was produced however, did contain the resume of Gustave "Junior" Lindor, Jr.... The existence of this resume suggests either that Gustave Lindor, Jr. did use a computer in defendant's home..."
So, the mere presence of a file containing Gustave's name proves he used a computer? Funny then, it seems about 10-15 of my friends have been using my computer - at least if you go by the resume's I've typed up for them from old paper copies... :-)
I wonder if I can send a bill to the RIAA for their use of my computer. After all, their expert (Mr. Jacobson) appears to have been here as well... or did I just download that resume? After 25+ years of using computers, I guess I just don't know who's been using my computer anymore...
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