Wednesday, April 18, 2007

RIAA Subpoenas High School Student for Deposition; Demands He Miss Class; Gives Only 1-Day Notice; in Houston, Texas, case

In a Houston, Texas, case, UMG v. Hightower, the RIAA subpoenaed a high school student on 24 hours notice to appear for a deposition at 9:00 A.M. at their lawyer's office, on a school day. The student was the son of the defendant. Defendant's lawyer filed a motion to quash the subpoena, and objections:

April 16, 2007, Motion to Quash Subpoena and Objections*

Ms. Hightower is represented by J. Goodwille Pierre, of Walker, James, Dhingra, and Pierre, of Houston, Texas.

* Document published online at Internet Law & Regulation

Commentary & discussion:

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25 comments:

Megan said...

I would certainly hope this motion is a slam dunk. 24 hours is certainly not enough notice, regardless of the deponent's work/school schedule.

Is it common, if a school-age person legitimately needs to be deposed, for lawyers to arrange the deposition for a Saturday, or perhaps for a late-afternoon/evening session? I'm not sure what the discovery deadlines are like for this case; it may even be reasonable to depose the student once summer break commences.

AMD FanBoi said...

When a subpoena is issued, doesn't the requesting party have to show some relevance to whom they're subpoenaing, and indicate what information this person is reasonably expected to provide? Or can they just grab everybody they believe was in the house, whether or not they actually were at the time, and grill them all?

Ray Beckerman said...

The discovery deadline just passed. The RIAA waited until the last minute, and then served it. Typical of their style, which is to go on a protracted, interminable fishing expedition.

You've got to be kidding to expect the RIAA to act civilly.

Yes they're supposed to show relevance. Now they're going to have to make a motion to compel.
Hopefully the judge will say they're a little too late and deny it.

Alter_Fritz said...

Hazim suggested: "you should back-up your important files, wipe your hard drive and then smash it up and throw it in a dumpster.

Then buy a new hard drive, install it, and put your files back on. And continue to ignore the RIAA.
[...]
They will have no evidence; therefore, no case, and you can't be accused of destroying evidence
"

Thats as bad; For one, they already sue you now if they have no evidence, they even sue you if you have no computer at all.
And of course the judge will punish you once the RIAA"expert" Dr. J. will tell him that the harddrive you produced was only build 2 years after the day day recorded.
This is civil stuff, not criminal. Just because RIAA can't produce the "smoking gun"-HDD with only your fingertips on it, that doesn't mean that they can not win. If you tell the judge that your HDD in question from back then got "lost" and it is totally unrelated to the suit that you got the brand new one at the time of the pending suit, I'm willing to bet with you that a Judge that had listen to often to RIAAguys will default you without hasitation.

If you really did what RIAA accuses you, you should not do such things that will give them an easy default against you, better do such a legal thing like challenging the claim on the unconstitutionality of the $750.00 for something that has only a value of ~$0.70 which means that a constitutional sentenceing in case your Jury peers say you are guilty of copyrightinfringement, would be in the range between $2.80 and $6.70.
Ray might have the link to this law review article at hand where the 750$ thingy is discussed.

Ray Beckerman said...

I have removed a post which I thought seemed to be advocating dishonest behavior.

r3m0t said...

"Subpoena’s was delivered to Defendant’s home on Monday April 16,
2007; 24 hours prior to Nicholas and Rochelle Hightower were to
comply with the subpoena."

"Defendant files this motion before the time for performance. Fed. R.
Civ. P. 45(c)(3)(A)"

They made sure that defendant's lawyers only had 24 hours to file an objection? How the hell can they do that?

Ray Beckerman said...

dear r3m0t

they can't

Ray Beckerman said...

links to the law review article on the unconstitutionality of the riaa's $750-per-song title damaages theory are listed here

alter, are you a lawyer? your advice is excellent...much smarter for a defendant to take the high road....

johnarama said...

What amazes me even more than the RIAA's actions is the fact that people haven't caught on to encrypted file sharing applications! GigaTribe, for example, is just one of many apps that preserves people's privacy by encrypting all exchanges (see http://www.gigatribe.com for a better description than I can give). I predict that in one year this will change the whole file-sharing environment...

paleking said...

The motion seems odd... Counsel for def. identifies that he is not counsel for either of the two subpeonaed persons. He claims standing to file the motion in 7 because "the
subpoena affects a personal right or privilege with respect to the
persons being subpoenaed," but presents no arguments with respect to the supposed privilege. Rather, all the remaining arguments (fails to allow reasonable time, school schedule, improper purpose) seem to be arguments that should properly only be raised by the subpoenaed party. It seems that the fact that counsel is not counsel for the subpoenaed parties should prevent him from raising these arguments, no?

AMD FanBoi said...

Johnarama, what you suggest will not help you at all. The RIAA isn't catching you by "tapping" your Internet connection, inspecting the packets, and realizing that you're transmitting, or receiving, MP3 files from someone other than iTMS or its cousins. Media Sentry is searching for a specified list of files. When they find one on their list being offered, they get a list of the other files on the offering computer. They tend to look for people sharing a large number of files (say >500), including other files on their list. They then download several files, trying to ensure that the download only comes from that single machine, and is not multi-sourced. (Ray, you should require download screen snapshots for EVERY file they claim was downloaded from any of your client's machines to ensure that the files didn't, in large part, come from some other source.) During this time they also take screen snapshots of the entire shared file list on the machine, and use another tool to identify the IP address of the computer(s) providing the download.

Afterwards they listen to the files to verify that they are actually the songs, recorded by the artists, covered by the copyrights of the RIAA. This requires that somebody is expert in identifying specific performances in question. This information is then provided to the RIAA, who decides somehow which cases to pursue.

No where in this transaction will encrypting your TCP/IP packets prevent or hinder the current RIAA investigation methods.

Neither will encrypting your hard drive to prevent forensic inspection of it afterwards. The judge will simply tell you to give over the encryption keys, or rule against you in the case if your refuse -- Translation: You Lose! And before you've even been able to put up a legal fight on other grounds.

While its amazing -- and quite disturbing -- that the lack of hard drive evidence is treated as proof of your guilt (an obvious, Prove yourself Innocent because we've already judged you guilty with our own debatable evidence), that is the way the judicial wind has been blowing in these cases so far.

So overall, your encryption advice is useless in protecting against the RIAA. The only reasonably sure protection against their present messages is to route all file transfers through one or more proxies, all of whom immediately destroy any records of the forwarding they have done. This way, Media Sentry will only find out the IP address of the first proxy, who needs to be able to demonstrate that there is absolutely No Filesharing Software or Songs on their computer, and that although they were relaying packets (which is legal), they never Induced anyone to use their service to evade the law (which is probably illegal under the Grokster ruling).

Of course, the RIAA doesn't want you to know this, since it would make all their current detection methods useless.

What also makes their present detection methods useless is a firewall, such as PeerGuardian, that contains all the IP addresses used my Media Sentry in their detection efforts (not known at this time, but the raw data files, if provided and analyzed would give important clues), because this would prevent them from directly connecting to your computer to identify and download files. And if they connect themselves through a proxy to avoid this, then the data becomes even more questionable than it already is.

Well, that's a long enough post for today.

Todd said...

amd_fanboi: on the HD issue, it's not a matter of the lack of HD evidence but a long-standing and reasonable procedural matter: refusal to produce requested material during discovery. The law requires you to produce material the other side requests during discovery, unless a judge tells you otherwise (you've got the right to have the judge rule on it, but your obligation doesn't go away until he rules in your favor (if he does)). If you refuse to hand over material, the law says "Well, if the material would've been in your favor it'd've been in your interest to turn it over. If it was merely neutral, you'd turn it over just to avoid sanctions. So logically the only reason you'd risk sanctions is that the evidence is so badly against you that the sanctions look like a better deal. As punishment for disobeying a discovery order, then, the other side is entitled to assume the evidence would've worked against you.".

A better course is to prepare to turn over an authenticated copy of the drive. You can, if you're prepared, prevent the RIAA from getting the only copy of your drive. Then, insure that you've legitimate grounds for having any music present on the hard drive. For instance, if every song on the hard drive comes from a CD you own or a download you legally purchased, you can undercut any argument based on the mere presence of the music. Then you can concentrate on the RIAA's evidence that you were sharing it.

AMD FanBoi said...

Ray,

What happens if a child behaves badly at a deposition? Consider, they're not adults yet. They can be willful, act out, be petulant, ADHD-prone, and anything else that might be expected of a child. What punishment can be brought down on a child under those circumstances?

And don't tell me the parents are responsible. Any parent that has tried to control a child on a bad day will shoot that one down quickly. If the parent is actually "controlling" the child, then the child's testimony would be highly in doubt because said parent had told them what to say, which is totally against the intent of this deposition.

I would just like to see them depose a really bad child sometime, and have to deal with that result.

Ray Beckerman said...

paleking are you kidding, do you think the kid had time to go out and hire a lawyer...?


he was served at school with a subpoena demanding his presence at a deposition the very next day at 9 am?

you're going to stand on technicalities?

陸羽 said...

Todd said:

For instance, if every song on the hard drive comes from a CD you own or a download you legally purchased, you can undercut any argument based on the mere presence of the music. Then you can concentrate on the RIAA's evidence that you were sharing it.


This it totally wrong. The RIAA is suing people for distributing (uploading) music, not downloading (as they often misrepresent their legal arguments to the press).

The fact is, if you offer a file for other people to download from your computer, the RIAA is going to claim that you are actively engaging in piracy. I read somewhere (no, I do not recall exactly where) that the penalties for downloading are very slight and the burden of evidence is near impossible to prove.

Instead they want to demonstrate that you are trying to destroy their business by giving away their "products" for free. This is also how they ask for $750 per song. That is a penalty for distribution, not for obtaining copyrighted material illegitimately.

If you avoid the RIAA's fantastical rhetoric, it is easy to see how this is true. If you were to buy a pirated DVD or CD, there would be little or no penalty even if a cop saw you do it. However, if you were to sell pirated DVDs or CDs, you would be looking at serious jail time when encountering the same cop.

Ray Beckerman's earlier comment, which describes MediaSentry's methods very nicely, also demonstrates this: They bascially hook up to your computer and try to download some files that your computer is actively sharing. If there is nothing in your shared folder or you do not have a shared folder, you will never have anything to fear from MediaSentry or very probably the RIAA. Of course, it is very anti-social not to share with the other children, and the RIAA, as we all know, is extremely anti-social.

Thus, what you did or did not purchase is irrelevant for these cases, so you can burn your receipts and use your CDs for coasters, if you like.

sacker said...

Any update, given that this happened a couple of days ago?

Thanks for posting several times yesterday; I was starting to go through withdrawal.

Igor said...

I still think someone needs to request the full packet log in its digital form and a copy of media sentry's hard drive (if they want yours, you should get theirs) with your files on it. Pictures of packet logs shouldn't do since they don't show you the full picture.

paleking said...

Ray,

Don't get me wrong... I certainly was not arguing that the judge ought to refuse to quash the subpoenas... Merely that it seems he would have grounds to do so. Are there limitations with respect to service time of subpoenas in Texas (i.e. a subpoena must be served more than a certain time in advance of the commanded depo date)? Either way, it seems that much of the practice of law involves defining who it is that you are representing and ensuring this is represented clearly in your arguments...

Ray Beckerman said...

the federal rules require "reasonable" notice.... no judge would find 24 hours reasonable....


there wasn't time for the kid to go out and retain a lawyer... he was served in the morning of a school day to appear at 9 am the next schoolday for chrissake...

Zelucifer said...

Any updates available?

Ray Beckerman said...

When I learn of something it will be posted here on "Recording Industry vs. The People".

pepper said...

Would someone please tell these riaa fools that school kids and university students have too much to deal with these days, such as random killings, than to also have to deal with these insane lawsuits of theirs.

Jadeic said...

Igor said...

'I still think someone needs to request the full packet log in its digital form and a copy of media sentry's hard drive'

I'm surprised no-one has ever come up with this before. Surely it is quite admissible to call for the hard drive of every MediaSentry computer that holds details of the alleged copyright infringement and from which the paper 'evidence' presented in Court was printed. This should be acceptable on the very reasonable premise that for all we know they are making the whole thing up! Shame on them if they no longer have the intact drives for they are ever fond of haranguing anyone and everyone who fails to retain all records for ever and a day just in case they may help the RIAA prosecute their cases.

ryan said...

Actually it’s already been done in the Chowdlury case

Notice from the Defendant's First Request for Production of Documents and Things*
1. (a)The computer or computers used to obtain exhibit B to the complaint, and (b) any and all other computers used in connection with any investigation relating to the subject of this action.

As well as:
11. All logs of traffic to and from defendant’s IP address during the alleged infringement.
(ok not quite the digital catch of the xfer but close)

Lastly:
9. To the extent not produced in response to above, (a) all software, (b) all software and hardware manuals, (c) all training manuals, (d) all written or recorded guidelines, related to the subject of the complaint, and (e) all communications between plaintiffs or RIAA or their lawyers of their investigators with defendant’s alleged internet service provider.

So defiantly a good chunk of ‘sorry you don’t get to make accusations w/o allowing us to know on what basis any more’.

Jadeic said...

Thanks Ryan. That was not a case I had paid attention to. Guess I must red everything to keep up with you guys.

This is exactly the kind of counter-attack required for hte reasons you state. Wonder how it will play out in the end if this becomes a standard defense request?