Saturday, August 04, 2007

Judge Allows RIAA to Serve Subpoena on Defendant's Former Employer in Atlantic v. Shutovsky

In Atlantic v. Shutovsky, pending in Manhattan, the Judge has issued an order ruling on a number of discovery issues. No written opinion was issued. Among the Court's rulings were the following:

-The plaintiffs were permitted to serve a subpoena on Mr. Shutovsky's former employer;
-The plaintiffs were permitted to take depositions of Mr. Shutovsky's wife and his brother;
-The court stayed defendant's discovery in support of his counterclaims for copyright misuse and declaratory judgment.
-Plaintiffs were required to produce all non-privileged documents or materials relating to any investigation and any sound files on their computer, and to produce a privilege log as to any claimed to be privileged.
-Plaintiffs did not have to turn over documents relating to their employees of 'online media distribution systems'.
-Defendant was required to provide the name and address of each person who used his computer during the three (3) years prior to commencement of the lawsuit.
-Defendant was required to produce all hard drives in his possession and control.
-Plaintiffs were required to furnish copies of copyright registrations for every song they assert was unlawfully downloaded.

July 26, 2007, Joint Letter Submitting Discovery Disputes*
July 30, 2007, Order of Hon. P. Kevin Castel*

* Document published online at Internet Law & Regulation

Commentary & discussion:

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

7 comments:

Alter_Fritz said...

could someone please ask Judge Castel with respect to his Order Count 9 sentence 2; "By October 19, 2007, I will require [...] for each recording that plaintiffs are asserting was unlawfully downloaded" what is with those recordings that they claim were uploaded "and/or made available".

Because if I understand the boilerplate complaint correctly then did their Investigators only downloaded files from the defendant, (aka. defendant uploaded files to them) and those few soundfiles are the basis for their complaint not that defendant downloaded files from them (aka. copyrightowner's investigators set up a trap to lure defendant into downloading something they know for sure he did)

And on a sitenote, while we haven't seen the expert report yet,
Why the hell does Dougy read probably highly confidential bank employees usernames and passwords when he should look for mp3?
Isn't that another proof that these plaintiffs violate courtrules where they were instructed not to snoop arount like perverts but just to search for those mp3 files they allege were infringing and the software (or remnants there of that was allegedly used to infringe their copyrights?!

Judge Castel should make sure that those plaintiffs do NOTsnoop around on HDD's like the oviously have now done repeatedly!! Last instant that is on file record is the case where their expert Jacobson snooped around in CV's in the Lindor case.

Brenton said...

Defendant was required to provide the name and address of each person who used his computer during the three (3) years prior to commencement of the lawsuit.

Wow, there's another reason to refuse to help clueless home users with their computer problems. If I go over to someone's house and clean up their virus infested, security software infested, and crapware infested Windows installation, which is already a risky thing to do-- so fun to be blamed should anything whatever go wrong even months later-- now I have to worry that my name might get dragged into an RIAA inquisition for helping out. No good deed goes unpunished.

This is an extreme demand. I don't keep logs! I recall mention of some principle that a plaintiff cannot demand creation of data that doesn't exist? I have several computers. Friends and visitors are welcome to hop on the ones expressly set up for just such use and check their email or whatever. I simply cannot recall every one of the dozens of people who might have hopped on once in the past 3 years, and certainly would have a difficult time tracking down addresses of those I do remember, as both they and I have moved more than once and not stayed in contact. And what of my privacy? What if I'd invited over someone who turned out later to be an embarrassment, someone I'd prefer to forget? Seems a lot of crazy things pass initial muster in the courts. The implication is that the RIAA has the power to force a computer user and adversary to become an investigator for them, and spend time and perhaps money on people location services?! Suppose no computers were involved, could a plaintiff demand a list of names and addresses of everyone who set foot in the defendant's residence over the past 3 years? Or used the defendant's phone? I hope not.

If those in legal professions are miffed that we geeks see them as technological idiots, it is stuff like this that gives that impression. Of course if the defendant has any sense he will simply claim "I don't remember", same as so infamously done in the Iran-Contra trials years ago, so nothing will come of it. But why even go through the motion? The judge is an idiot for not shooting down this and the other ridiculous RIAA fishing attempts.

Paul said...

I would also call into question any "expert" witness that claims the "lack of Verizon software to required to access the internet" being the basis to call into question the veracity of the defendants statements contrasted against the evidence in the computer. I for one NEVER install the ISP software because it is unnecessary Bloatware. If you have the proper setup information, username, and password you can get online without an extra software. Just one hole of many which I noted while reading the discovery.

AMD FanBoi said...

Page 5: Plaintiff's state that: "Plaintiffs brought this action against Defendant in good faith based on significant evidence of infringement that occurred on Defendant’s computer and through his Internet account. Exhibit B to the Complaint contains copies of screen shots showing the digital music and other files detected by Plaintiffs’ investigators that were being distributed from Defendant’s computer and through his Verizon Internet account. Defendant has never rebutted this evidence."

It's one thing to identify an Internet account through an IP address and ISP logs. BUT THAT DOESN'T IDENTIFY THE COMPUTER(S) CONNECTING THROUGH THAT ACCOUNT AT THE TIME IN QUESTION. What is their evidence that it was the Defendant's computer that they detected?

Page 7: "Plaintiffs also object to this Request on the grounds that it is overly broad and unduly burdensome."

You know, Plaintiff's have virtually unlimited money and manpower available to them. It is hard to believe that ANY discovery request is beyond their considerable resources. This sounds like stonewalling. [whine]We don't want to provide that because it's just too much effort, your Honor.[/whine]

Page 9: "Identify and describe all methods, operations, processes and programs utilized by any person to investigate and/or obtain (a) the “screen shot” and list attached to the complaint, (b) the Internet Protocol address of said screen shot, and (c) the allegations of the complaint."

HOW IN THE WORLD can any Plaintiff objection to this request be upheld? It cuts to the very heart of how the evidence against the Defendant was gathered in the first place. Can there be anything in the world of this case more relevant?

Page 9: "By doing so, the user then retrieves a perfect digital copy of the desired sound recording from the computers of one or more other users."

NO! A user receives a highly compressed, possibly badly encoded, poor copy of something that someone else unknown "claims" is what it purports to be. It is in no sense a perfect digital anything relating to the original digital file on the CD.

Page 11: "the IP address, the screen shots, and other data relating to Defendant's unlawful distribution are the same as those that any other user could have used to obtain this information and to identify Defendant as a significant infringer of Plaintiffs' copyrights."

The validity of this statement CANNOT be verified without knowing the exact procedures and software used by MediaSentry. They may well have used some IP capture software unknown to the world in general. Also, how do they keep their KaZaA client from accessing multiple machines while they're making this screen capture. The RIAA is saying TRUST US, WE DID NOTHING FUNNY HERE. Unfortunately, they are about the most untrustworthy organization in the courts since Direct TV performed similar extortions a few years back.

Page 17: "For example, the computer produced by Defendant does not contain any evidence of Verizon software necessary to connect to the Internet via the Verizon network, even though Defendant testified that he used Verizon to connect to the Internet."

Just WHAT SPECIFIC SOFTWARE IS NECESSARY to connect to the Verizon broadband network? Most modern computers can connect to the Internet by plugging into a connection and running a simple connecting wizard – no special Verizon software required. So while Verizon may supply software to automate the connection process for newbies, it should hardly be necessary. IF I WERE THE DEFENSE, I'd find a computer expert to show you how to connect a computer to Verizon without loading any of their software. As an alternative, call Verizon directly and ask their helpdesk for the simple steps to get your computer online with their Internet service. In fact, I personally prefer NOT to load ISP supplied software because some ISP's (AOL is a HUGE offender in this department) load unnecessary Crap onto your system that impairs its use otherwise.

- - - - - - - -

Note: In the same way that the RIAA images Defendant computer hard drives to search for evidence of copyright infringement, the Defense SHOULD BE DEMANDING to IMAGE AND INSPECT the ENTIRE computer hard drives of every investigator who provided evidence against them. This search of their hard drives should be focused on determining if there are any files or programs on said drives – or evidence of any deleted programs or files on said drives since the date of the evidence collection – that can affect the veracity of the collected evidence. To date, I have yet to hear of a single case of demanding to inspect THE INVESTIGATIVE TOOLS used to files these suits. Tit for tat here.

Also, even if the files in question were found on some computer linked to the Defendant, that does NOTHING to indicate that they were DOWNLOADED illegally into that computer through it's Internet connection. Any files found could have been copied on to the computer from a CD burned on an entirely different computer by some other, completely unknown person. While the activity of "downloading" seems to be considered illegal, is that considered ABSOLUTELY LEGALLY IDENTICAL to a friend bringing over his mix CD and copying it onto the computer hard drive to listen to? This could be an important legal distinction, since act of illegal downloading is alleged, yet Plaintiff's are UNABLE TO PROVE just how any files have actually gotten onto any computer hard drive.

Jadeic said...

Picking up paul's point - this all revolves around the delightfully ambiguous and contradictory wording of point 8 of the Discovery Order.

'By September 4, 2007, defendant is directed to produce all hard drives
or data storage units, whether removable or not, which are in his possession and control,
including but not limited to all hard drives or data storage units of any computer that through
which he had internet access on or about August 17,2005.'

By one reading of this paragraph the computer provided by the defendant does not have to be the one from which MediaSentry allegedly downloaded copyright material if it was at the time the only one still 'in his possession and control'. How can he provide something that is no longer 'in his possession and control'. However, the second part of paragraph 8 seems to imply that if he is aware of the location of any other 'hard drives or data storage units of any computer' over which he no longer has 'possession and control' but 'through which he had internet access on or about August 17,2005' he is duty bound to make these available to the court. Would this therefore not include the computers and associated hard drives or data storage units used by the RIAA investigators that 'identified' the defendant. My logic here is that if they were able to use Kazaa to obtain their screen dumps and downloads then it would have been possible at that time reciprocally to browse their shared folder and, perhaps stretching a technical point, their computer would become one 'through
which he had internet access on or about August 17,2005'. If so that computer needs producing.

Sorry if all this seems wild fantasy and clutching at straws but I am seething at the effrontery of the RIAA and the meek compliance of Judge Castel with this latest turn of events: desperate times call for desperate measures and not least some out-of-the-box thinking.

Enough

Dave

Richard said...

I prefer to give the Judge the benefit of doubt until I see an obviously biased ruling. I don’t recall seeing his name on any other cases, are there any?
To me he seemed entirely focused on the schedule. I would summarize this as his giving the defendant a shotgun, and the plaintiffs a shotgun, 2 AK47s and a howitzer and telling them to go away and settle it by yourselves. While I totally disagree with his liberal interpretation of what should be allowed in discovery, I do agree that this whole case really belongs in a small claims Court rather than a Federal Court.
Unless I have misinterpreted #5, the Judge is ordering the plaintiffs to produce Request for Production No. 5.

Request for Production No. 5. All sound recordings and other files stored on
THE COMPUTERS that are CONCERNING the investigation, litigation,
prosecution and/or settlement of the plaintiffs’ claims against defendant.

Please note the absence of “or provide a privilege log”, and the inclusion of “other files”. I also note the omission of a due date. I would expect Mr. Altman to request that the Judge add By September 4, 2007.
I expect this to be yet another court order that the plaintiffs violate.

I am vehemently opposed to #8. While it is probably mostly mute since they have already copied the only hard drive which the defendant possesses and controls, I fail to see how the restore and M$ OS CDs that typically came with a PC are relevant to the plaintiffs copyright infringement claims. Or for that manner say a copy of M$ DOS 3.11 that he might be laying around.
I would never allow anyone to make a copy of my hard drive without plaintiffs first signing a release that would include at a minimum
· Assuming unlimited liability for all data contained on the drives for a period of say 90 years.
· Indemifying me of any claim for the unauthorized release of all data on the drives for the same time period. (This means that if M$ or any of the other Copyright holders of the data on the drives sues me, the Plaintiffs are liable for the damages and the cost of any suits) This also includes any personal data like bank accounts including the logon and passwords required to access the account that were on the drives.
· Certifying that that have obtained any required written permission to allow them to legally copy the data.
· Release to be signed by authorized Corporate Officers of all plaintiffs

Just the thoughts of a biased observer.

KJ said...

Just as the comment about the legal community not understanding techie issues, techies don't usually understand legal issues. I have training in both. Two short comments:

1) As to the comment "this case belongs in small claims court rather than a federal court," it CAN'T be in small claims court. All small claims courts are state jurisdiction, and because of what is known as "diversity jurisdiction," i.e., parties of two different states, federal court is the only court than can hear it. If you don't like it, amend the U.S. Constitution, Article III, Section 2., which states, "The judicial power shall extend to all cases . . . between citizens of different states . . . ."

2) You guys who are fighting these RIAA fights on the techie side (a fight WELL worth fighting) would probably do well to read the Federal Rules of Civil Procedure - it will help you greatly understand what the judge can allow and what he can't. Google the term, you'll get the whole kit n' kaboodle - you guys are smart enough to figure it out...