Tuesday, April 15, 2008

RIAA moves for order compelling hard drive inspection in Atlantic v. Howell

Thanks to "Jadeic (Dave)" for bringing this to our attention.

In Atlantic v. Howell, the pro se Arizona case in which the Electronic Frontier Foundation filed an amicus curiae brief in connection with the RIAA's summary judgment motion, the RIAA has moved to compel an inspection of Mr. Howell's hard drive.

The court records indicated that the Court first tried to avoid the motion by having the parties 'cooperate' with each other in resolving the dispute, and that Mr. Howell failed to 'cooperate', so that then the Court ordered that the motion could go forward.

RIAA motion to compel hard drive inspection*
April 14, 2008, order scheduling RIAA motion to compel hard drive inspection*

* 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


Alter_Fritz said...

How is a private citizen expected to "cooperate" with the RIAA when they clearly admit that they want to snoop around unrestricted on the harddrive and take a look at EVERYTHING that has nothing to do in the slightest with their complaint of copyrightinfringement?!

The RIAA-"Expert" Dr. Douglas J. already admitted that he is one of those vojouric (sp?) types of persons by reading Resumees and browser histories and other stuff that has nothing absolutely nothing to do with the allegations of copyrightinfringement!

Given that Howell apears pro see in this case he can not claim priviledge but I find it troublesome that Judge Wake wants to decide over this imo clearly overbroad demand from RIAA without oral argument!

(In germany for example in light of a demand for a law that would allow the authorities to snoop remotely and secretly on HDD of the public i remember that there was this argument form one of the opositining politicians that a HDD and its content is like a "detached" brain in our lives now that contains the most private and intimate details and an unresticted snooping in it just a too invasive intrusion)

I second those argument and hope that Judge Wake has some sense of relativism between what Plaintiffs demand here from a pro se defendant that can not claim attorney/client priviledge for his HDD and what they accuse him of having done.

I would wish from him that he would order the RIAA/teir expert that they would file some papers where they clearly say what procedures / steps / exact search queries they want to invoke via what exact tools on the howell hdd and that he sua sponte demand that an neutral expert have a look if those intended procedures are likely to produce information from the hdd that should be considered most private and intimate and not in relation to the alledged wrongdoings.

Lets hope he has a sense for privacy of an unrepresented defendant!

Anonymous said...

Such hard drive inspections are both worthless, and harassment.

They're worthless because even if you find the file sharing program and every music file illegally detected by MediaSentry, there is no proof that this computer actually engaged in any file sharing. There are no logs of transfers ever made. A hundred identically configured hard drives in a hundred different computers can be provided that have the same "evidence" on them, yet only one – or even none – of those computers ever committed what the RIAA insists is copyright infringement.

Furthermore, this is all Fruit from the Poisoned Tree, given that it all devolves from the illegal unlicensed investigations performed in the first place. A competent court would thrown this all out long before any hard drive inspection ever came up for consideration.

And even if you find all the "evidence" you need on the drive itself, that doesn't say anything about who was actually using that drive to commit the infringement.

I admit that civil litigation faces a far lower bar than criminal cases do. Preponderance of the Evidence is the stated standard. But we already have at least one judge now in another case saying that if you could have file shared, you probably did at some point. That's a judge I'd impeach myself, if I only had the authority to do so.


The harassment part comes into play because of the RIAA's inability to restrain themselves from looking into every nook and cranny of the hard drive once they get their grubby paws onto it. A lot of our private lives – more than many of us realize at first – are stored on our hard drives, and the RIAA has no shame at all in trying to find anything at all incriminating, embarrassing, or blackmail-able to use against their chosen targets. You'd better hope you don't have e-mail discussion with your own lawyer on that hard drive.

While their inspection should be LIMITED ONLY TO evidence of the exact file sharing application and exact music files they claim to have detected, examples of their overreaching have included reading and revealing private e-mails, resumes, and other document files, any and all user accounts, and any removable drives that may have ever been connected to the computer containing this hard drive. They attempt to justify this as seeking evidence to prove that the computer was in use at the time they claim it was, and was using a non-NATted IP address indicating no router involved, but that's bogus. How the computer is configured now says absolutely nothing about how it may have been configured and used years ago. Computers don't, as a rule, store every IP address they ever used in an easy to access place.

In a normal search warrant you must specify where you're going to look, and what you're looking for. And you're not allowed to "find things" not on your warrant. That's called Illegal Search, and tends to get any evidence found quickly thrown out of court. The RIAA here should be required to specify exactly what they are going to look for, have this list approved by the court after the defendant has the fully opportunity to object to all non-relevant items, and then be forced to use a neutral expert who will only search for the specified items.

Of course the RIAA hates this idea, but if it was my hard drive about to be raped by these RIAA bastards, I'd be fighting tooth and nail to limit them only to what they maintain must exist to show proof of the crime charged. And if their evidence is not found on the hard drive, they have to drop their case immediately due to lack of proof.

And if they go beyond those limits and introduce other "evidence" found to supposedly impeach the credibility of the defendants, or show other infringement they never detected or alleged in the first place, they should be slapped down and sanctioned so hard that they would be better off leaving the legal profession altogether for some new line of work. A proper judge would enforce this behavior on the known bad acts of the RIAA.

I still think you're better off just stealing the CD's right out of the stores than using a P2P system, given the disproportionate penalties for getting caught either way. It's curious that the RIAA has made this so true.

Curiously I note that the RIAA is demanding an "electronic copy" of files. Electronic copies are not copies on any physical medium like hard drives, CD's, DVD's, or plug-in USB drives. In fact, they are not anything other than electrons flowing down a wire. The claim for "electronic copies" indicates how completely ignorant of the technology the person making the request really is.


Specific issues with this case include:

Likewise, other data that is created during Internet usage is relevant to claims and defenses in this case. These other electronic files contain records of online activity and are not normally available for view without the aid of a forensic expert’s specialized tools. Plaintiffs are also entitled to discover this relevant data under Rule 26(a)(1).

I would REALLY make them spell out in advance EXACTLY what the above refers to in COMPLETE DETAIL. Receiving a private e-mail is evidence of data created by Internet usage. Does this entitle them to read that e-mail?

You cannot challenge the credibility of the information they claim your computer created while connected to the Internet until you know everything they are looking for, and how reliable it might be. In short, you need to know all the secrets the forensic expert will be looking for as evidence against you so that you can properly challenge it. The forensic expert won't want to give up his "secrets", but you MUST make him do it anyway.

Plaintiffs should be permitted to make a mirror-image copy and conduct a forensic inspection of the entire computer hard drive.

You better make them tell you first just what they are allowed to discover in this entire hard drive, because otherwise anything THEY THINK is relevant you’re your hard drive becomes evidence against you. You want to limit what they CAN search for, not the other way around.

Mirror-imaging is the method utilized by law enforcement for investigating criminal matters involving computer hard drives.

Yet this is not a criminal case. Only the RIAA's conduct here is "criminal."

Plaintiffs propose a protective order (attached as Exhibit C) providing that information on the DVDs and hard drive shall be kept confidential and used only for purposes of this lawsuit.

How is it confidential if it is all revealed publicly in court and in filings afterwards. That's about the most useless "feel good" phrasing I've seen in a very long time. And the RIAA's past record (remember the one victim where the RIAA published a list of non-infringing, but very embarrassing, image file titles, to pressure that defendant to settle quickly and quietly?) is no guarantee that they won't try to use anything they find here in the most damaging way. To the RIAA, any alleged file sharer is the worst scum of the earth that exists, and should be punished in every way possible to make an example of them.

Because the proposed protective order will sufficiently protect Defendant’s privacy interests in the data on his computer hard drive and DVDs, the Court should compel him to produce his computer hard drive for copying and inspection.

This privacy order does NOTHING to protect the defendant from the RIAA getting information they have to right to have! Mr. Defendant, you're an idiot – moron if you prefer - if you agree to this.


Alter_Fritz said...

say DM you haven't snooped around MY harddrive while I was thinking and typing my above comment?
YOUR one looks as if you have stolen some of my arguments!

Should I say "Great minds think alike" or better "Ray please initiate some litigation against DM, he is stealing my intellectual property" ;-)

Alter_Fritz said...

Ray stop the litigation procedures against DM please!
He's useful after all! ;-)
I learned 2 new vocabularies and/or a new phrase thanks to his observation that:
"the RIAA [is inable] to restrain themselves from looking into every nook and cranny of the hard drive once they get their grubby paws onto it.

I thought for my self "what the f un" are nooks and crannies at a HDD?
Me knows what's a nuke and a granny, and while RIAA likes to sue the later and the prior could be useful on their headquarter *kidding of course* I had no idea what that he was talking about
My favourite free "open source" online dictionary www.dict.cc was again very helpful :-)