Monday, May 18, 2009

RIAA submits proposed protective order for hard drive mirror imaging & inspection in SONY BMG Music Entertainment v. Tenenbaum

The RIAA has submitted a proposed protective order in response to the Court's decision providing for a protective order in SONY BMG Music Entertainment.

Notice of submission of proposed order
Proposed Protective Order

[Ed. note. Based upon a quick preliminary look at the proposed protective order, it does not appear to be consistent with the May 6th decision, but until I can find the time to review it more carefully, I will have to reserve making any definitive statement about that. -R.B.]

Keywords: lawyer 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 portable music player


Unknown said...

On a quick closer inspection, the proposed order certainly appears to be a grab for more data than the Judge initially allowed.

Proposed: "any electronic information related to file-sharing software and/or any music-related files, including any music sound files, music video files, music playlist files or music label files, as well as any metadata associated with such files."

Original: "any recoverable file-sharing data on the mirror-image, including electronic records generated by file-sharing software and "metadata" associated with music files."

Pretty easy to make an argument that the proposed order is, on its face, at odds with the Judge's plain meaning. The judge clearly said "The Expert shall not examine any non-relevant files or data, including those belonging to the following categories: emails, word-processing documents, PDF documents, spreadsheet documents, image files, video files, or stored web-pages. On their face, none of these types of electronic files appear to have any established relevance to Tenenbaum's use of file-sharing software or allegedly infringing activities"

If that is truly the case, the proposed order seeking music video files, for example, is simply a fishing expedition that the Judge has already said is unrelated to the case.

Disappointing, but not unexpected from these attorneys.

Unknown said...

The difference in having two sets of "experts" instead of one seems to be fairly benign, keeping separation of duties between those people who can inspect and those that delete things on the privilege log. It also maintains a complete non-redacted copy of the drive in case there are privilege disagreements. (Insert RIAA ulterior motive here).

I have to wonder though, since the inspecting expert is specifically supposed to look for deleted files, does that mean they'll also have access to files deleted basis the privilege log? The order doesn't seem to give much of a technical background for how the privilege log files should be removed from the inspected copy.

BarryS said...

What I find more disturbing then the items mentioned by Jonathan is that the sentence "No employee of the Plaintiffs, or their counsel, will inspect or otherwise handle the mirror-image produced." is no where to be found in the proposed order.

Eric said...

One of the big issues I have with this is that the RIAA "expert" will have quite a lot of lattitude to

a) Fish in media files not named in the complaint for additional files they believe are related to file sharing. This will probably turn up more files "statistically" similar to those on the RIAA's watch.

b) produce evidence that the drive has been "wiped". It's been how many years since the "actions" took place? Even just keeping up with the windows service packs would have created 10's of GB in file churn.

c) Peek in the free space for protected documents. With the way MS word deals with files it would be without fail that portions of protected documents will end up in the free space of the disk.

d) Depending on the level of sophistication there are also additional "backup" sectors on the disk that could also have protected files.

This will end up with another trial within a trial where only the RIAA wins. Either they continue to bleed the defendant dry or they get to fish with a favorable "expert" to get enough "data" to back up their initial assertions or produce enough new claims of infringement to make any possibility of a fair outcome to be nil.

Maybe with a neutral expert half of these problems would go away, but it's still a huge loss for the defendant.

Anonymous said...

I agree with Jonathon. There is a tremendous amount of 'wiggle room' in the proposed order.

E.g.: provisions for storage of both copies; technical and forensic qualifications of the 'experts'; accuracy of image copies; and supervision of the 'experts' by another party, as an attorney or licensed investigator.

I'm sorry to say, I think I see a great lot of room for a lot of chicanery by plaintiffs in this case.

-Quiet Lurker

Alter_Fritz said...

At that time, the Mirroring Expert shall make two mirror images of the Gateway computer’s hard drive, one copy to be maintained at all times by the Mirroring Expert (the “Original Copy”) and another copy to be provided to the Examining Expert (“the Inspection Copy”).
In other cases where the judge even have not shown so much oversight as Judge Gertner is doing, plaintiffs "protective" were better. In those other cases the second copy was retained NOT by another guy choosen by Plaintiffs, but was handed to defendants councel. (see Lindor for example IIRC) Here where a judge is mindful about justice and that the rights of either party should not be violated by the other, it seems plaintiffs want to demand more for themself then they did everytime else!

At or before the time of the mirroring of the hard drive, the Defendant may submit to the Mirroring Expert and the Plaintiffs’ counsel a privilege log (the “Privilege Log”), consistent with the Federal Rules of Civil Procedure, designating any files on the hard drive (including the full file path) as either attorney-client privileged or attorney work product.
Given how a computer interacts with a hardrive, this proposed procedure is useless to archive either the judges intent or the alleged intent that Plaintiffs appear here to represent. Such a Modus operandi is UNABLE to protect the confidentiality and this privilege stuff that your Rules of law grant both Parties with respect to their interaction with their councel!

When Defendant is required to produce a log with "full file path", that would preclude any and all privileged data/communication that defendant had, but where he has for example already deleted the drafts/prior versions before he finalised the text for printing or those by his wordprocessor automagicly created interrim copies of the privileged stuff.
Computers don't interact with harddrives on a "filename" and/or "full file path" basis. They interact with them on a "sector" and/or "cluster" basis. Modern Harddrives have Billions over Billions of those and in all of them could be information that is neither relevant for the claim or defense of any party in this case and who could be forbidden for plaintiffs to gain notice about in any event (the "privileged stuff" according to your FRCP and other applicable laws).
So to demand that defendant provides a log before even having a) the chance to see what the forensic experts plan to disclose to Plaintiffs at all and b) before they could check every Cluster those expert wants to look at is IMO an insult to the alleged intentions of the order of the judge!

In the event that Defendant produces a Privilege Log in accordance with this Paragraph, the Mirroring Expert shall delete any items identified on that Privilege Log from the Inspection Copy.Deleting of "items" before Plaintiffs get their hand on a perfect digital copy of all the data will not prevent them from seeing the deleted data in any way. The data must be "overwritten by Department of Defense standards" to make sure the proposed NOT neutral hard drive examining expert can NOT gain knowledge about the content of those privileged files/sectors/clusters.

5. Unless authorized by the Court, the Mirroring Expert shall not open or examine[...]It is not the Mirroring guy that is to be worried about right now, it is what Plaintiffs try to (I alledge in bad spirit of the judges intentions/orders!) get via the backdoor with the next paragraph!
Which reads:
[...]The Examining Expert shall examine any recoverable data on the Inspection Copy[...] THIS is exactly what as far as I understood it the Judge said is NOT what she intended to allow them to do!

After all, this proposed order is IMO a slap in the face of the judge and the spirit of your laws as far as I understand them as a non-lawyer but a human being with a bit understanding about the differences about computer storage procedures vs physical document storage procedures in physical filecabinets and with a bit common sense I allege to be having.

Plaintiffs always only hand out to defendants physical copies of printouts, they never hand out exact mirror images of the computers with witch the alledged identification of defendants as copyrightinfringers were done. Defendants are never allowed to image and inspect those exact digital copies because Plaintiffs demand all the privileges with respect to those items and hand out only clearly by human manipulated printouts as "evidence".

The similar procedure should be followed when it comes to the harddrives of defendants.
I priviously pointed out how I would generally propose the handling of those issues would I be a judge in those cases.
But let me repeat myself a bit.

It absolutely MUST be a neutral court appointed expert that handles ALL issues regarding the Harddrives.
He (and only He!) performs the inspections. The plaintiffs and their experts shall produce a list of what kind of searches they would like the NEUTRAL expert to produce on the evidence.
(If plaintiffs might come with the made famous by RIAA Richard "making those procedures public would be a roadmap for would-be infringers" argument, the parties and the judge can do this under seal/in camera stuff that prevent the public from gaining knowledge of those procedures)
This (secret) list of procedures the parties agreed upon -in case of disputes the judge after seeking necessary explaination from the neutral expert about the significance of the disputed procedures decide finaly what neutral expert should perform- will be carried out.
The results will be PRINTOUTS from this neutral expert that will be handed to defendants councel for privilege review.
AFTER that the remaining printouts will be handed over to Plaintiffs who now have the liberty to have the printouts explained to them by theri own experts or to introduce them as evidence at trial just like they can do with the PRINTOUTS they have from their investigators and explained by their own expert.

No perfect digital copy that contains so much more information that is not relevant for the defense or claim of any party to this civil litigation/suit shall be given to Plaintiffs in any event. Specially not after the fact that it is known and on the record that their expert will snoop around in non relevant files. And extra specially not after they tried to introduce such a free for all snooping wording in this proposed order here which is in clear contrast to what the judge said in her order!



Anonymous said...

The record companies should be required to state with specificity what documents/files they are seeking discovery of, just like they must if they want copies of documents from a file cabinet. At that point, both sides can argue whether some documents/files or categories of documents/files that might exist on the hard drive are relevant.

Once those issues are settled, then an INDEPENDENT expert should be used to search the hard drive and report any contents found which are responsive to the court approved list of relevant files/documents. The record companies should never have full unfettered access to the hd, just as they would never have unfettered access to the file room. Also, a forensic examination can NEVER prove spoilation of evidence. An examination can only report the condition/contents that exist at the time of examination. Date/time stamps of files, deletions, re-partitioning, etc are not proof of anything because this info depends on the date/time set on the computer which may or may not bear any relationship to the actual date/time when any event resulted in a change to the hd contents. Obviously, such an examination can never determine who or when anything was done on a computer. So if a file fragment is discovered in unused or formerly used space for example, there is no way to determine how it got there, by whom, or when. So just as there is no way to determine what might have been in the file room at some particular time in the past after having purged files according to a file retention policy, so too should the record companies be denied the ability to undertake an unrestricted fishing expedition of a full mirror image of a hard drive (file room). Also, the responsibility for placing the 4 corners around the discoverable RELEVANT information should rest with the record companies and should not be the responsibility of the defendant to list what grains of sand are privileged from among all the grains of sand on the beach. The defendant should only be required to identify what is priveleged from among the info specifically requested by the record companies and which is relevant.


Anonymous said...

Like freddie says, it would be better if Plaintiffs had to say what they wanted beforehand. As I understand it, the First Amendment requires the disclosure process to be as narrow as possible, while still providing Plaintiffs with what they need.


Anonymous said...

The only purpose of seeking a 'playlist file' is for the purpose of embarrassing the defendent in case he has one full of Abba or Spice Girls. Without the music files themselves, a playlist file provides no evidence of infringement. There would be no way to determine if the files on the playlist were legitimate without the actual files themselves.

lost in thought

Anonymous said...

Speculating as devil's advocate, a playlist file which mentions the locations of the recordings named in the suit would give them evidence that the defendant knew the files were on the drive, and this could be matched up with the shared folders and upload/download logs as "proof" of willful infringement - not just of recordings named in the suit, but of perhaps "millions" of others. That is, such an "incriminating" playlist could be used for ad hominem, threats of more lawsuits, and as an argument against any claims that some third party (a P2P user or another physical user of the computer) may have put the files in a shared folder without the defendant's knowledge.

- another anon

Anonymous said...

This is a flawed approach. The order should state what they CAN see, not what they CAN'T see. It should specifically only allow recovering the song files listed in the original complaint, the P2P system identified in the original complaint, any files created by the P2P system as part of its operation, AND NOTHING ELSE! Nothing beyond that can be justified.

Anything beyond that is an an absolute recipe for trouble, including fishing through the unallocated (deleted) file space. The Defendant's should insist that this protective order be as restrictive, specific, and detailed as any Search Warrant.

{The Common Man Advising}

Anonymous said...

This man feels that alter_fritz has hinted at a good solution.

What if all discovery generated the the (so-called) Expert had to first be submitted to the Defendant. The Defendant could then object to anything "discovered" before the judge in the hope that it was stricken out before ever being seen by the dishonest Plaintiffs.

Due to the inability to accurately set boundaries in cases like this on what can and cannot be searched, as well as the fact that the unallocated (deleted) file areas certainly contained privileged information (deleted .tmp files, old versions, etc.) that are not tagged as such with file names, paths, and extensions, any longer, this would truly be the only fair way to prevent Plaintiffs from gaining information that they have absolutely no right to have.

{The Common Man Speaking}

Anonymous said...

This man feels that alter_fritz has hinted at a good solution.

What all discovery generated the the (so-called) Expert had to first be submitted to the Defendant. The Defendant could then object to anything "discovered" before the judge in the hope that it was stricken out before ever being seen by the dishonest Plaintiffs.

Due to the inability to accurately set boundaries in cases like this on what can and cannot be searched, as well as the fact that the unallocated (deleted) file areas certainly contained privileged information (deleted .tmp files, old versions, etc.) that are not tagged as such with file names, paths, and extensions, any longer, this would truly be the only fair way to prevent Plaintiffs from gaining information that they have absolutely no right to have.

{The Common Man Speaking}