Wednesday, January 16, 2008

RIAA's motion to compel turnover of external hard drive granted in Lindor

In UMG v. Lindor, where the RIAA submitted a new "expert" report by Doug Jacobson and requested production of a Western Digital external hard drive, the Magistrate Judge has directed production of the external hard drive.

The Court's order also established discovery deadlines, and directed that defendant and her son are entitled to discovery from the expert.

January 16, 2008, Order directing production of external hard drive*

* Document published online at Internet Law & Regulation




Keywords: digital copyright law online internet 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 intellectual property

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12 comments:

Anonymous said...

the Magistrate Judge has directed production of the external hard drive.

I'm amazed (and disappointed) at how easily a judge just commands things to happen, as though defendants have a magic wand to wave. I'm reminded of the other US judge who ordered TorrentSpy, an operation that isn't even based within his jurisdiction, to preserve and turn-over non-existent computer logs. I suppose if the debatable Doug Jacobson had found iTunes software on the hard drive he examined, there'd be demands for iPods as well.

Suppose there actually is such a hard drive, and even by extension, music files on it. So what? No KaZaA software. And as the EFF so ably points out, even if there was KaZaA software, no record of any files shared or uploaded. Shouldn't it be possible to demand that the plaintiffs explain what evidence they intend to find, and allow a debate as to if such evidence (KaZaA installed on a removable drive with no registry entries in Windows) can even exist or be asmissible, before being forced to provide such a drive? Otherwise it's simply fishing with Doug Jacobson reading more private e-mails and resume files he stumbles across.

But what if the hard drive exists, but doesn't belong to the Lindor's? Suppose some 3rd party owns it and has no interest in being dragged into an RIAA case with evidence that might harm him/her, who is a non-party to all these proceedings. Someone not being sued who has no interest in explaining - justifying - the private contents of his/her own hard drive to the rapacious RIAA litigation machine? Is there any 5th Amendment protections here? (I'm guessing not.) And to this point in time, has there been any Duty to protect and preserve this drive, which may not even be owned by anyone in this case? If the drive shows up minus the directory entries the plaintiffs expect to find because it was reformatted years before the suit was filed, then what? People are being judged against with no evidence ever found, which simply seems wrong!

XK-E

Anonymous said...

Is the Court's order going to be posted?

tranq

jjadedd said...

If this was, in fact, a borrowed drive (which it has all the appearances of being) and the person that owned this drive had the audacity to dispose of it, or reformat it, or otherwise 'tamper' with it even though they were not the subject of any civil litigation, then is Lindor deemed to have tampered with evidence and get's his hands slapped (legally speaking)? If so, what madness. Where does it all end????

Jadeic said...

Although it grieves me that the RIAA have once again prevailed in their unremitting bid to increase the financial & emotional burden on the Lindor family you must surely rejoice at the chance to throw Dr Doug to the dogs...

Woof!Grrrr...

Dave

Anonymous said...

Will we be seeing the Court's order posted?

anon999

Alter_Fritz said...

Ray, was Levy in his order clear and specific as to WHAT HDD he wants?
I mean, it can't be that hard to get this men a HDD full of music if he want to have one!

I could offer a 120GB Seagate that was IIRC in use in the timeframe at question and it's full of format shifted legally owned Big 4 music. (Yes, little did I know back then how evil SONYBMG, Warner, EMI and UNIVERSAL are; I appologisemyself be all their victims for funding these ecomomic terrorists back then with my money. I don't do it anymore unless they stop their "sue 'em all", I promiss!)

I mean, if THAT disc would help to resolve Judge Levy's Catch22 problem -that only prolong the oviously inadvertent result that Mrs. Lindor is/was not a copyrightinfringer and that the plaintiffs lied when they claimed that they already have "significant evidence that she is"-I would even pay the shipping cost to him on my own despite the fact that I'm not rich enough to contribute anything else to any of those established defense funds.

Get this men some music on old HDDs,folks!
That can't be so hard.
What's his shipping address?

Ray Beckerman said...

Order's posted. Sorry about that, folks.

Art said...

Ray, I'm just curious if during the conference Judge Levy addressed your request to require RIAA-Richard to attend all future proceedings in person?

Regards,
Art

Anonymous said...

So lets see if I have this timeline straight..
4-12-06 Dr. Doug's "Expert" report filed (did I miss the word draft in there somewhere? The 1st paragraph says its an expert report according to some rule or another)
2-23-07 Dr. Doug gets deposed.
12-19-07 "supplemental" report filed.
1-16-08 blah.blah.blah you should of waited until final reports were filed, its your own fault.

How many years before "final" reports are filed? It only took Dr. Doug _20 months_ to come up with "new" information. Since it has taken this long so far, will we see Dr. Doug's "really final report" filed before 2010?

I'm sure you have heard all the bad lawyer jokes Ray, but when cases are going on like this....is it any wonder that people have a low opinion of them?

Maybe someday in the next 5 years a ruling will come out of the Trager/Levy offices in favor of a defendant

-B

Anonymous said...

Were it me, and were it possible, I would have asked (required) Dr. Jacobson to provide the information he alleges to have located on the hard drive image he inspected that proves that this particular external drive was connected. So far we have only his provably unreliable word in this matter, yet this magistrate judge appears to believe him, and only him.

And remember, he was quite specific. It wasn't just play-list entries that allowed such specificity in the exact model and size drive that was plugged in.

And that does bring up another question. Could more than one external drive have been plugged in over the years? And if so, just which of those drives might have contained the music files in question? Play-list entries do not necessarily correlate to a specific drive. In fact, with drive mapping, a drive letter might have been mapped to another hard drive inside another computer, and the play-list entries supposedly discovered don't even relate to any external drive plugged into this computer. You can do things like that over a network, and usually do, since typing a drive letter is so much easier than typing long file paths of the form \\computer name\directory\subdirectory\...\file name.

In short, even if an external hard drive was plugged in, and even if music files are listed on a play list utilizing a drive letter higher than C:, that doesn't mean that these music files that were attempted to be played (we don't even know for sure that they were actual music files, only that they're on a play list), were actually played from said external disc drive. So if this drive magically appears, and contains none of the identified music files, that doesn't prove at all that they once existed and were erased to hide the crime.

Is that clear, or too convoluted?

-Dodge Magnum

Anonymous said...

The district court is not bound by the recommendations of the magistrate judge. See 28 U.S.C. § 636(b)(1). When a party timely objects to any portion of the magistrate judge's Findings and Recommendation, the district court must conduct a de novo review of the portions of the Findings and Recommendation to which objections are made.

This is lifted from the Tanya Anderson case decision posted above. My question is, does this allow the opportunityto object to Magistrate Judge Levy's decision requiring the mysterious 100GB Western Digital drive to be produced solely on the word of a questionable expert witness? Also, given that their expert witness files additional reports well after his "preliminary" report that detail new facts concealed before, can you appeal the decision that defendants must bear the costs of any additional depositions? In fact, reading back, I had thought that his "final" report had been due by the end of last year, and now he says it wasn't. Additionally, and especially since the order to produce this external disc drive is based on un-examined testimony from this "expert" witness, are you given no opportunity to question his ability to declare that this drive even exists as he describes it before being required to produce it?

So many questions raised by this order.

XK-E

Anonymous said...

Correction: report due by the end of 2006.

XK-E