RIAA, MediaSentry: put up, or shut up
p2pnet news view | RIAA News:- One of the key elements in yesterday’s protective order in SONY BMG Music Entertainment v Tenenbaum, was Judge Nancy Gertner’s [right] direction that »»»
the Examining Expert shall be required to disclose both the methods employed to inspect the hard drive and any instruction or guidance received from the Plaintiffs.
To date, in the hundreds of consolidated RIAA cases assigned to her, Judge Gertner has rendered thousands of rulings based upon so-called evidence procured by MediaSentry, without ever asking for that same type of disclosure.
In fact, the RIAA and MediaSentry have steadfastly maintained that their methods are secret and “proprietary”.
While they are permitted to have whatever “proprietary” “secrets” they want, it is contrary to Federal law to maintain a federal litigation based upon such material.
Although it is routine in federal litigation to mandate such disclosure for any scientific or computer-based evidence, it is novel in RIAA litigation, since the courts have generally bent the rules for the RIAA, in view of the weak or nonexistent legal representation of defendants.
Let us hope that era is coming to an end, and that the RIAA will have to prove its cases just like any other plaintiff in a federal litigation has to prove its case.
And let us hope that Judge Gertner will apply the same standards to the “evidence” submitted to her from MediaSentry, Doug Jacobson, and any other RIAA “expert”.
Ray Beckerman – Recording Industry vs The People
May, 2009
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May 20th, 2009 at 4:41 pm
Let us not only hope for full disclosure on methods of gathering evidence but also upon truthful revelations being required as to exactly the monetary damages and sue’em all victim has actually caused, in digital prices of today’s method of selling music.
Statutory damages do not fit copyright infringement when the victim gathered and made no money. Statutory damages were instated for those businesses that were making money off infringement, something that no file trader does. It should be a requirement that damages be documented, not in imaginary figures but in real life dollars as to the effect that the claimed damages are to be.
Under such a ruling it would not be profitable to any longer go after file traders.
May 20th, 2009 at 6:36 pm
The only way the RIAA can afford to continue its terrorist tactics is to engage in extortion and call it a victory, to demand unreasonable settlements and call it a victory, and to defend the constitutionality of ridiculously disproportionate damages claims. As soon as those claims are deemed unconstitutional, and they’re forced to only go after something like 10x actual (or whatever) then the sue-em-all campaign is no longer feasible.
Sue-em-all is built around enforcing and protecting a dying business model, the unethical conduct is built around protecting the sue-em-all model, and the constitutional fight is built around protecting the unethical conduct.
I have to point out that Gertner’s order is around full disclosure of the drive examination, and not around the “investigator’s” methods. MediaSentry and RIAA claimed that their investigative process was proprietary. They didn’t claim the same about the drive examiner’s methods. Sorry, I don’t see this as anything new.
May 20th, 2009 at 7:43 pm
Surely the damages against a torrenter should be based on their seed ratio – so if they have a seed ratio of 5 they should owe 5 times the cost of the track / album?
May 20th, 2009 at 7:55 pm
the difference is precedent. this is the biggest deal in law, if the judge places a precedent on how the hard drive is examined, this will dictate how ALL the evidence is examined, including all the bullshit smoke and mirrors the MAFIAA throw around. Under FEDERAL juristiction, a corporation can claim proprietary shit, but NOT in a civil matter, just another bullshit lie from the RIAA. the judge knows this, and is going to hand them their balls this time around.
stay tuned.
May 20th, 2009 at 7:57 pm
” Surely the damages against a torrenter should be based on their seed ratio – so if they have a seed ratio of 5 they should owe 5 times the cost of the track / album? ”
I know of no cases of this type against any bittorrent users.
Anyone else ?
May 20th, 2009 at 8:06 pm
” a corporation can claim proprietary shit, but NOT in a civil matter, just another bullshit lie from the RIAA. the judge knows this, and is going to hand them their balls this time around. ”
I hope so, but so far not one single judge has forced the RIAA lawyers to reveal their double secret proprietary
method of ‘investigation’ , even though at one point they claimed they did the same thing that any other P2P user would do.
Which is it ?
No one has come even close to making them reveal the answer.
May 20th, 2009 at 9:26 pm
thats the flim-flam, they use bittorrent, kazaa, etc ,.. just like anyone else that can get your IP, they ‘pretend’ they have some super secret squirrel methodology when in fact, all they have is , well, nothing. exposing this embarrasment is a two fold win, customers will not see the distinction between RIAA using bittorrent to levy lawsuits like any other jabronie can get an IP addy out of a hat, and pirates using bittorrent to violate copyright. and secondly, once the reality sets in, everyone will be talking about the utter fail by the RIAA concerning evidence, discovery, definition of statutory damages, expert analysis, and the incredible distortion of fact.
not to mention losing the case…
if we are lucky, Judy will lay down some precedence. shes been the most outspoken judge against the armstrong tactics of the assholes to date…
THEN Charles Nesson can use this fail, so can others, like Brittany.
May 20th, 2009 at 9:30 pm
Minnesota just passed a civil precedence concerning the source code for breathalyzers cops use..
they claimed proprietary super secret squirrel bullshit too, the judge didnt bite and forced them to reveal the code.
after expert analysis by a minimum of 3 independent senior level developers all came to the same conclusion..
and I quote.. ‘HOLY SHIT THIS IS FUCKED UP CODE !!!!!’
May 21st, 2009 at 1:05 am
Ah @surfer
It seems that from the analysis of the Breathalyzer code shows that it really WAS “super secret squirrel” code. Its just that the secret is the names of the “real animal” squirrels who repeatedly tapped the crap into the keyboards instead of the normal codemonkey’s *lol*
As for the judge’s order requiring disclosure and non-bias, this is a pre-requisite for non digital evidence in any other civil/criminal trial, and should be required for electronic evidence as well in ALL civil suits not just Criminal ones. If the rules of evidence are applied in any case those rules should apply to ALL evidence not just some, otherwise bias, corruption of evidence, corruption of due process, not to mention destruction of perceived procedural fairness is guaranteed.
May 21st, 2009 at 8:40 am
agreed, evidentiary discovery should apply to all evidence, civil proceedings, or otherwise. and ya, I also agree, as fucked up as the code was, it probably was keyed in by squirrels.
stw
May 21st, 2009 at 12:46 pm
OH, that’s neat, We are going to gather the evidence but it is proprietary so we are not going to say how we did it.
Have to remember that one. Could be used in almost any court case. Using that should make all evidence unquestionable from now on.
May 21st, 2009 at 1:12 pm
Surfer,
Do you know what case in Minnesota that is specifically? This might help Jammie Thomas in her new retrial with her new lawyers.
May 21st, 2009 at 1:43 pm
http://www.courts.state.mn.us/opinions/sc/current/OPA072293-0430.pdf
May 21st, 2009 at 1:45 pm
http://arstechnica.com/tech-policy/news/2009/05/mn-supreme-court-says-yes-to-intoxilyzer-source-code-requests.ars