Friday, May 16, 2008

Magistrate holds that MediaSentry does not have to respond to subpoena in UMG v. Lindor

In UMG v. Lindor, the Magistrate Judge, Robert M. Levy, in a preliminary ruling, has held that MediaSentry does not have to respond to the subpoena duces tecum served upon it.

May 16, 2008, preliminary order of Hon. Robert M. Levy, Magistrate Judge, granting MediaSentry motion to quash and RIAA motion for protective order*

* 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:

Alter_Fritz said...

No, I will not comment on that one!
Every regular reader of this blog / everyone that followed the Lindor case already know where this Judge seems to stand when it comes to record companies as plaintiffs

No need to comment any further when his rulings are in accordance with where he seemingly stands (and that's in my feelings clearly not impartial in front of 2 parties)!


Personly I have the feeling this order text was not even written by himself but someone "made it available" for him to copy.

anna johnson said...

Judge Levy comments: 'The time for consideration is long past, and these documents are no more relevant today than in 2007'.

Not one for keeping up to speed with the peripheral reading then. They were relevant in 2007 and are becoming ever more central to exposing the fallacies on which the RIAA cases are founded ( and hopefully will founder - sorry couldn't resist that!).

And later: 'Similarly, the software, source code, or algorithm that MediaSentry uses to obtain
screen shots is irrelevant to the question of whether the screen shots accurately depict copyright
violations that allegedly took place on defendant's internet account.'

Am I the only one to see the contradictions inherent in this absurd statement?

There is an interesting Note 2 on Page 5 - 'the risks of disclosure far outweigh the possible benefits of the information to defendant'.

What greater benefit can there be than proving your case if, as we all suspect, the MediaSentry evidence amounts to zilch.

Dave

Jadeic said...

Apologies - I appear to have posted my last comment masquerading as my wife! Hope that is not a sanctionable offence!

Dave (aka Jadeic)

Justin Olbrantz (Quantam) said...

And what does the honorable judge think could possibly be more relevant to the administration of justice than knowing whether a case's foundational accusation is true?

David said...

It is amazing – and distressing – that a man so ignorant of the technical issues at hand here is actually allowed to be the judge over them. Would that this judge had been in any of the several states where radar speed gun and/or breathalyzer cases were successfully fought based on the non-availability or refusal to release the source code, innocent people would be either in jail, or much poorer, as a result.

Interestingly, the RIAA/MediaSentry group has recently said that they don't even use special software, but just log onto LimeWire and start searching from their list of songs. If that was the case then there would be nothing to be protected here.

This judge is so obviously biased towards the Plaintiffs that he is blinded to the obvious fact that how the "evidence" is collected is the only determining factor as to this accuracy. To shield these collection methods from investigation can only leave the rest of us with our mouths hanging open in wonder at how he has been allowed to continue on the bench for even another minute with logic like he has shown in this recommendation.

Even the foot note 3 on the final page is an absolute insult to any logical thinking, justice loving, American.

It is a sad day for justice to any poor Defendant who ends up in this court.

And by the way, MediaSentry's market standing cannot be harmed. There is no competition for their services, hence no harm is possible.

-DM

derivative said...

It's obvious to any disinterested observer that the judge made the right call here.

After all, we are dealing with a defendant who has already been shown to have zero respect for intellectual property and the law. Not only might she have copied a few songs, she is completely unrepentant about her alleged behavior. If she had just had the good graces to roll over and pony up $3500 to the RIAA at the start of all this, we wouldn't be bogging down the federal courts with all this petty nonsense. Why, as the good judge knows, $3500 is hardly more than a week's wage. That paltry sum can't be the sticking point for the defendant -- it must be the demand to promise never to download songs again that she couldn't stomach. She must be really serious about her pirate music to take her absurd defense to these lengths.

Events have made it perfectly clear that this woman (and her lawyer) have so little regard for intellectual property, and those who create it, that they cannot be trusted with trade secrets -- they only want them to be able to enable other scofflaws to completely evade detection.

</sarcasm>

Ray, if I recall correctly, in Florida, defendants have successfully argued for independent examination of things like radar gun code and/or breathalyzer code (don't remember which).

Although it often appears to this outsider that this particular judge already has his mind made up, and is obstinately and deliberately emasculating your defense, if you give him the benefit of the doubt, perhaps all he needs to be shown is that computers are fallible and can even be made to lie. Many people assume that computers are infallible and that the people who are using for ostensibly legitimate reasons would never stoop to doing something underhanded.

If there are any civil, federal cases in New York where a party was able to show through discovery that the other party's technological evidence gathering/manufacturing mechanism was seriously flawed, would that help to bolster your case to the magistrate?

In any case, I'm really sorry about this setback, and upset enough that I am mailing some more money to you for the defense fund. I would like to encourage other readers to do the same. Litigation is expensive enough when the judge appears to be fair and impartial, but the hoops that Ray is being made to jump through really make me angry.

I always try to look at the bright side of things, and in this case, it's that counsel didn't neglect to demand a jury trial. I expect at least a couple of your jurors will be much more technologically sophisticated than the jurors in Minnesota, and than judges Trager and Levy.

Regards,
derivative

matt said...

"... the software, source code, or algorithm that MediaSentry uses to obtain screen shots is irrelevant to the question of whether the screen shots accurately depict copyright violations..."

OK, good, so I'm not the only one to roll eyes at this part.

Fortunately, you don't have to be a computer programming genius or receive a $60,000 phone bill to know software (even the hush-hush proprietary kind) isn't infallible. Just say the magic word.

"Gotenkito."

Rick Boatright said...

Footnote 3, that Media Sentry's licensing status can have no relevance seems,

Ray, it's difficult for me to describe just how odd it seems.

Words fail me.

It's _very_ odd.

bbsux said...

I can only hope that, in fact, Judge Levy is giving the RIAA more than enough rope to hang itself, similar to Tanya Andersen.

derivative said...

bbsux:

Judges Trager and Levy handle ALL the RIAA litigation in this district, basically at the request of the RIAA.

The RIAA designates the cases as "related", and fought tooth and nail when Ray tried to get a case (this one I think) moved to a different court.

Regards,
derivative

So, I think it is fair to say that the RIAA has been satisfied with the way these particular judges have handled many cases for them over the last several years.

If anything, it appears to me that Ray's client is being punished for not going along quietly with the standard flow. Why else to allow useless expensive out-of-state discovery by the RIAA while disallowing useful relatively cheap discovery as to the accuracy of the methods used to manufacture^H^H^H^H^H^H^H^H^H^H^Huncover evidence of infringement? As I mentioned earlier, I think the best hope here is an informed jury. Fortunately, in this particular case, the facts are being argued, e.g. that Ms. Lindor didn't use the computer. If it were only the law being argued, this case would have been over (except for appeals) many months ago.

One of the reasons I follow this case with interest, and have contributed to the defense fund, is that this appears to be a really good case, with black and white delineation.

Some of the other cases, where defendants apparently did listen to music acquired through peer-to-peer file sharing are not as good, in that some judges apparently try to twist and stretch the law to cover behavior they think is bad (like Hotaling vs. Latter Day Saints).

Unfortunately, I do not expect any good law to come out of this case (except possibly on appeal, and I think there might be some ripe fruit there, especially once the judges disallow Ray's claim for fees after he wins). But this case is shining a lot of light on the whole RIAA process. I think this case, and Ray's involvement and blog, are very useful to show people first of all, what ugly bullies we are dealing with, but second, that we can and should fight them. The knowledge and publicity gained by fighting this case can help shape the outcome of the class action suit, upcoming legislation, and people's perception about how to cope with extortion letters received from the RIAA.

Taking a long-term view, one of the best things about this case is how badly it proceeding. With this blog, Ray is providing an invaluable public service, and as bad as the RIAA is in and of itself, it is hard to imagine that Ray would be quite as motivated and tireless in his quest for justice if the judges were doing a better job of dispensing it, instead of seemingly colluding with the RIAA to actively thwart it. Also, with it going THIS badly, if Ray ever does manage to convince the judges about the ethics of the RIAA, perhaps they will sua sponte revisit other cases they have decided (but I'm not holding my breath waiting for that).

Perhaps I'll have to eat my words about the judges' objectivity, but it's really hard for me to see how recent rulings come anywhere close to allowing Ray to adequately prepare his defense and counter-offense. I think Ray will be able to overcome a lot of this in court, but, frankly, the only "harm" I could see in allowing discovery is that something might be uncovered which would disturb the joint RIAA/judges' carefully crafted version of reality.

Albert said...

Derivative,

It was the breathalyzer code that was ordered to be produced here in Florida, and when the Manufacturer refused, the Judge simply dismissed the case.

I have not figured out here how the Recording Companies have gotten away without having to actually PROVE their case. With an actual witness that witnessed the acts, and witnesses that can testify the software actually works properly.

Since we know that unassigned IP's have been identified in some of the cases, we logically know that there has to be some margin of error.....

Albert

Ray Beckerman said...

Dear derivative,

Just wanted to thank you for your further, generous contribution to Marie Lindor's defense, which arrived today.

Thank you!!!!!!!

Best regards

Ray