Rock and Rule

September 28, 2007 1:48 PM

Virgin v. Thomas, the first RIAA backed lawsuit to make it to a jury trial looks likely to proceed early in October in Duluth Mn. This comes after a motion for summary adjudication (.pdf), was turned down. The witness list(.pdf) includes the president of the RIAA himself. Plaintiff statement of case : Defendant statement of case. (.pdf both).
posted by edgeways (45 comments total)

Wow crazy. I actually know Doug Jacobson, the RIAA's expert witness. The bizzare thing is, if you read his deposition he states that he did not find any evidence of p2p programs, mp3s, or any evidence that files were deleted, after doing a 'forensic' analysis of the user's hard drive.

The other weird thing is that in the deposition, he said that there was evidence that the user "made material available" but how would they know that? Did the RIAA actually try to download stuff from the machine, or did they simply notice how the material was being used?
posted by delmoi at 2:00 PM on September 28, 2007

Last link is the same as the next to last.
posted by schoolgirl report at 2:06 PM on September 28, 2007

Also, you shouldn't say ".pdf" unless you're linking to actual PDFs. these flash-viewed PDFs are not nearly as bad, because they don't require you to load up the memory-pig, browser crashing acrobat plugin.
posted by delmoi at 2:13 PM on September 28, 2007

(oh wait, those do load acrobat, in a frame. I'll shut up now)
posted by delmoi at 2:13 PM on September 28, 2007

they don't require you to load up the memory-pig, browser crashing acrobat plugin.

Neither does a mac.

FYI.
posted by dersins at 2:15 PM on September 28, 2007

heres the defendants statement.
posted by mano at 2:16 PM on September 28, 2007

Remember, never pay for any music from any label that has to do with the RIAA.

Reading about this, I totally just went and downloaded several albums. Suck it, bitches.
posted by TheOnlyCoolTim at 2:22 PM on September 28, 2007

Definitely read the Jacobson deposition. It gets really testy around page 25 or so.
posted by schoolgirl report at 2:28 PM on September 28, 2007

Thanks, schoolgirl report. I'm a regular reader of Beckerman's excellent blog, and I don't know how I missed that deposition. It's clear that Beckerman really doesn't like Gabriel. Frankly, neither do I.
posted by grouse at 3:10 PM on September 28, 2007 [1 favorite]

LOL RIAA
posted by matt_od at 3:13 PM on September 28, 2007

When reading about these lawsuits in the news, I had always wondered how the Plaintiffs were dealing with the problem of proving WHICH person downloaded or uploaded copyrighted works. I mean, a given computer probably has multiple users. How are the Plaintiffs meeting their burden of proof as to which user it was?

In the Jacobsen deposition linked above (around page 32), the testimony and related objections suggests that the Plaintiffs do have a problem proving which user it was.
posted by jayder at 3:38 PM on September 28, 2007

I so hope this gets tossed out and sets an important precedent. More specifically, I want the jury to find that not only are these baseless accusations, but in response to the years of thuggish behavior, from this point forward anyone using the term 'RIAA' must, by law, grab their crotch and jeer.

Because that's the kind of precedent that I can get behind.
posted by quin at 3:44 PM on September 28, 2007 [1 favorite]

Eat shit and die, RIAA!
posted by five fresh fish at 5:52 PM on September 28, 2007

jayder writes "When reading about these lawsuits in the news, I had always wondered how the Plaintiffs were dealing with the problem of proving WHICH person downloaded or uploaded copyrighted works. I mean, a given computer probably has multiple users."

Forget access to the computer--what if you have open wifi? That eliminates the possibility of getting a preponderance of evidence that you were the one doing the infringing.

Even without open wifi, if you're relying on the compromised WEP for restricting access to your network it's arguably due diligence on your part. Can't wait for that court case.
posted by mullingitover at 6:08 PM on September 28, 2007

they don't require you to load up the memory-pig, browser crashing acrobat plugin.

That's why some of us use Foxit Reader (foxitsoft.com).
posted by DoctorFedora at 7:38 PM on September 28, 2007

what if you have open wifi?

They get your hard drive as part of the "discovery" process in litigation, they do a forensic analysis on it, and they find all kinds of half-deleted crap that you downloaded.
posted by Mid at 7:53 PM on September 28, 2007

Mid writes "They get your hard drive as part of the 'discovery' process in litigation, they do a forensic analysis on it, and they find all kinds of half-deleted crap that you downloaded."

This is a civil proceeding isn't it? IE: you get warning that you'll have to turn over your disk? There are lots of tools out there, for free even, that'll fix this little bit of self incrimination.
posted by Mitheral at 8:39 PM on September 28, 2007 [1 favorite]

Google "spoliation."
posted by Mid at 9:08 PM on September 28, 2007

Yah, if the feds want to sink enough money into it, they can get evidence aplenty regardless the precautions you've taken in erasing your hard drive. The only sure solution is to destroy it.
posted by five fresh fish at 9:18 PM on September 28, 2007

I'd like to see them prove spoiliation. If you wipe your disk right when you are first served and then reinstall your system (preferably from an image) when they request your disk as part of the discovery process it is clean of anything incriminating yet obviously full of stuff. ReImaging a machine is a valid and common place technique of system maintenance, especially among the tech savvy. My systems rarely last longer than six months and I'm not trying to hide anything.
posted by Mitheral at 9:19 PM on September 28, 2007

They get your hard drive as part of the "discovery" process in litigation, they do a forensic analysis on it, and they find all kinds of half-deleted crap that you downloaded.

But they did that, and this case they found nothing. No mp3s, no p2p, no nothing.
posted by delmoi at 11:10 PM on September 28, 2007

Yah, if the feds want to sink enough money into it, they can get evidence aplenty regardless the precautions you've taken in erasing your hard drive. The only sure solution is to destroy it

FFF: You can pretty much destroy the data on the drive without replacing it. If you get to the point where you're thinking about destroying the drive, the feds will probably have figured something else (like using a rootkit, keyboard sniffer, etc)
posted by delmoi at 11:13 PM on September 28, 2007

Delmoi - I was talking in general, not about this case. But how could this possibly go to trial with no evidence from the HD?
posted by Mid at 5:20 AM on September 29, 2007

Mid: the RIAA's modus operandi is to pursue even hopeless cases as far as possible, so I'm not surprised that they would take this to trial despite a lack of evidence. A magistrate judge recently said this in a ruling on another RIAA case:

Copyright holders generally, and these plaintiffs specifically, should be deterred from prosecuting infringement claims as plaintiffs did in this case. Plaintiffs exerted a significant amount of control over the course of discovery, repeatedly and successfully seeking the court's assistance through an unusually extended and contentious period of discovery disputes. Nonetheless, after ample opportunity to develop their claims, they dismissed them at the point they were required to
produce evidence for the court's consideration of the merits..... this case provides too little assurance that a prosecuting party won't deem an infringement claim unsupportable until after the prevailing defendant has been forced to mount a considerable defense, and undergo all that entails, including the incurring of substantial attorney fees.

I think this practice is supposed to send a message: when the RIAA comes knocking, you had better pay them off, because it will cost you a lot more money to defend even if you are innocent.

I think that is an abuse of the judicial system. More than one judge has called the RIAA's tactics abusive. It will only stop when the judges make it expensive for them to carry on in the same way.
posted by grouse at 6:41 AM on September 29, 2007

Destroying the hard drive after you've been served would be destroying evidence, which could expose the hard-drive deleter to court sanctions. Worse, this could sink the deleter's case itself. Generally, when one party is found to have destroyed trial evidence a court will permit the jury to make a negative inference against the destroying party (i.e., "If you think this person intentionally destroyed their hard drive, then you can assume they had illegal material on that hard drive.").
posted by herc at 7:10 AM on September 29, 2007

I'm surprised by the Jacobson deposition. He says on page 31 that he wouldn't have been able to conclude anything about the case had he found that the hard drive had been reformatted. I thought that even after reformatting, it was quite possible to recover most of a hard drive's original contents...
posted by Coventry at 7:52 AM on September 29, 2007

"If you think this person intentionally destroyed their hard drive, then you can assume they had illegal material on that hard drive."

So, basically, you are guilty unless you can prove yourself innocent.

Running procedures on Windows machines to remove accumulated cruft is construed as admission of guilt? Or just the easiest way to keep from having to do a system reinstall every 6 months?
posted by Enron Hubbard at 8:07 AM on September 29, 2007

So, basically, you are guilty unless you can prove yourself innocent.

If someone proves that you have destroyed evidence in order to prevent its use against you at trial, then your guilt is already established.
posted by grouse at 11:32 AM on September 29, 2007

Destroying the hard drive after you've been served would be destroying evidence, which could expose the hard-drive deleter to court sanctions.

Well, naturally. I'm not at all saying that one should destroy their hard drive to avoid prosecution! Good god, that'll only make things much, much worse.

But even a repeated DoD-approved disk wipe does not absolutely destroy the data on the disk. It makes it unusually difficult to retrieve any information, but traces of the prior magnetization patterns will remain. Through various means and specialized equipment, old data can be resurrected.

And failing that, they can easily enough pretend to have found data. It's RIAA: they have no scruples.
posted by five fresh fish at 11:33 AM on September 29, 2007

So, basically, you are guilty unless you can prove yourself innocent.

This is a civil trial, not a criminal one. The burden of proof is lower.
posted by spaltavian at 4:10 PM on September 29, 2007

Even without open wifi, if you're relying on the compromised WEP for restricting access to your network it's arguably due diligence on your part. Can't wait for that court case.

Start poking around and looking at what is compromised and you'll realize that once you head down that road, there will be nobody left who is duly diligent.

Here's an amusing scenario to ponder. Imagine a piece of software that a directory that the user and even the OS can't see. Now I, playing the role of skeevy music pirate, come along later and put some of my vast pile of files to be shared in it and let your bandwidth be my bandwidth.

Say hello to the Sony Rootkit!
posted by Kid Charlemagne at 9:32 PM on September 29, 2007

But even a repeated DoD-approved disk wipe does not absolutely destroy the data on the disk. It makes it unusually difficult to retrieve any information, but traces of the prior magnetization patterns will remain. Through various means and specialized equipment, old data can be resurrected.

Nope. Just one pass of writing over the space where the data was, on a hard drive made in the last 20 years, is more than enough. If you're crazy paranoid, go for multiple passes if you've got time to waste.

People have tried, and not succeeded in recovering written-over data from drives. If it was possible, you'd be able to pay the data recovery firms exorbitant sums to get it back. You can't.
posted by blasdelf at 3:38 AM on September 30, 2007

You. Are. Wrong.
posted by five fresh fish at 10:28 AM on September 30, 2007

The gdisk wipe i proposed does the 7 pass wipe which your link gives a medium protection rating. The link also states that "Overwriting can be a higly secure method for HDD cleansing, but only if the proper method with sufficient overwrite passes is employed. According to Pfitzner R., 2003, at least 33 overwrite passes with pseudo-random data are required to irrecoverably destroy the contents of a hard disk. Even intelligence agencies with all their modern forensic lab equipment would then be unable to recover meaningful data.". 33 passes with random data is possible with dban.

Can you point to anyone even claiming to be able to recover data from a disk that has been over written 33 times with pseudo random data?
posted by Mitheral at 3:03 PM on September 30, 2007

Why would I have to point to any such thing? I've already pointed to a perfectly fine article that refutes the "single pass will do the trick" claim, let alone claims by most data security software.
posted by five fresh fish at 9:13 PM on September 30, 2007

Why would I have to point to any such thing? I've already pointed to a perfectly fine article that refutes the "single pass will do the trick" claim, let alone claims by most data security software.FFF, You claimed:

But even a repeated DoD-approved disk wipe does not absolutely destroy the data on the disk. It makes it unusually difficult to retrieve any information, but traces of the prior magnetization patterns will remain. Through various means and specialized equipment, old data can be resurrected.

In other words, you seemed to claim that even an infinite number of passes would leave traces.
posted by delmoi at 11:08 AM on October 1, 2007

One thing I thought of, is destructive evidence gathering even permitted in civil cases? If the plaintiffs can't take the cover off that HD this is one big old moot point anyways.
posted by Mitheral at 11:23 AM on October 1, 2007

In other words, you seemed to claim that even an infinite number of passes would leave traces.

Oh FFS, let's not get so bloody stupid here, okay? If you really thought I meant "infinite passes", please hand in your Internet license and go play around out in the back yard.
posted by five fresh fish at 4:33 PM on October 1, 2007

Mitheral - it is possible to get the physical hard drive in civil litigation discovery, though it is not common (but becoming more common).
posted by Mid at 8:07 PM on October 1, 2007

I assumed that was the case. What I was wondering is whether they would be able to destroy the hard drive in an attempt to prove spoiliation. All the methods of recovering data after even a single overwrite involve disassembling the disk. Even if they could put it back together, unlikely; I wouldn't trust the device in the future.
posted by Mitheral at 7:43 AM on October 2, 2007

They do use service techs and clean rooms, at least at the better facilities. What makes you think it would be destroyed or damaged?
posted by five fresh fish at 4:32 PM on October 2, 2007

In this case, the hard drive at issue is a new one. The defendant apparently suffered a hard drive failure two weeks after the alleged infringement occurred, but before she got any notice of the RIAA's claims against her. Of course, Richard Gabriel, the RIAA attorney, is trying to spin that as if she destroyed evidence, but testimony from a Geek Squad employee who handled her repair established that the hard drive had just plain died.

So as far as examining her hard drive goes, there's probably not much comfort there for the plaintiffs. Otherwise, this case probably would have settled.
posted by mikewas at 7:48 AM on October 4, 2007

Maybe one should keep two drives: a failed one in the computer, and a working, hidden network drive...
posted by five fresh fish at 7:50 AM on October 4, 2007

5ff: Why not just use a VMWare p2p appliance instead?
posted by mikewas at 9:29 AM on October 4, 2007

Certainly, go for it.
posted by five fresh fish at 4:58 PM on October 4, 2007