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Judge rejects experts employed by RIAA

Written by Rich Fiscus (Google+) @ 21 May 2009 12:51 User comments (19)

Judge rejects experts employed by RIAA A Federal judge has shot down a RIAA request to have their usual team of forensic experts, whose actual expertise is questionable at best, examine Joel Tenenbaum's computer. Instead Judge Nancy Gertner ordered the RIAA to use a third party investigator, who will be required to provide her with a detailed description of their methods.
Although RIAA lawyers will be allowed to select their own forensic expert, the instructions they give to that individual will also be passed on to the judge, and their findings will be disclosed directly only to Mr. Tenenbaum's legal team. They will then be required to share the report with the RIAA.

In the past RIAA experts have shown a great deal of bias, even going so far as to claim a defendant in another case must have a second computer because the one she turned over for examination showed no evidence of file sharing software or even MP3 files.

The examination of Mr. Tenenbaum's computer will be limited to looking for music files, meta data about music files, evidence of file sharing activity, and evidence the hard drive has been wiped.

In previous cases secrecy about their investigative methods has been a cornerstone of RIAA cases. With no documentation of what's being done or peer review from the scientific community to back up claims of its effectiveness you would think it would automatically be suspect.

Yet so far it's never become much of an issue for judges, making it impossible for defense lawyers to get access to enough information to attack it in court.

Since Mr. Tenenbaum has already admitted to sharing the files alleged by the RIAA the examination will instead focus on how much activity took place afterward. Where there is disagreement between the two sides is the issue of damages.

His lawyer, Harvard Law Professor Charles Nesson, claims the $750 - $150,000 statutory minimum damage award is unconstitutionally excessive because it is thousands of times more than any actual damages.

Regardless of the effect on this case, this decision could set a precedent for defendants in other file sharing cases, which despite claims to the contrary are still being filed by the RIAA.

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19 user comments

121.5.2009 14:04

Good job to the judge. Now we will see how the RIAA tries to "obtain" this information legally.

Quote:
His lawyer, Harvard Law Professor Charles Nesson, claims the $750 - $150,000 statutory minimum damage award is unconstitutionall excessive because it is thousands of times more than any actual damages
I hope Tenenbaum wins this case, even though he confessed, let's hope he doesn't have to pay "the price" that the RIAA says he owes. And I wouldn't be surprised if they kept that money, and didn't give it to its rightful owners (the artists). The RIAA should NOT get paid one cent from this case or from the talents and work done by the artists.

221.5.2009 14:35

He could have avoided this whole mess by using Drivecrypt or Truecrypt prior to getting caught, since divulging his passphrase would have violated his 5th amendment right against self-incrimination.

Remember kids...if you encrypt..they must acquit!

But do it PRIOR to them telling you they plan to confiscate your hard drive, otherwise its an obstruction of justice charge.

321.5.2009 15:06

So how do you acess your data beforehand?

421.5.2009 15:12

"even going so far as to claim a defendant in another case must have a second computer"

I don't know about the rest of you, but there are at least 6 completely unsecured wireless networks within reach of my computer. Anyone could be attached to one of those networks and most people seem completely ignorant of that fact.

Confiscating someones computer is just the tip of the iceberg. There are dozens of other variables that never seem to be covered.

521.5.2009 15:19

Why is the RIAA the one with the task of examining the computer anyway for the judicial process? Shouldn't that be left to the police's IT division?

621.5.2009 15:46

Originally posted by skeil909:
"even going so far as to claim a defendant in another case must have a second computer"

I don't know about the rest of you, but there are at least 6 completely unsecured wireless networks within reach of my computer. Anyone could be attached to one of those networks and most people seem completely ignorant of that fact.

Confiscating someones computer is just the tip of the iceberg. There are dozens of other variables that never seem to be covered.
There's 6 networks by me too, but their all wpa secured. That's the one where you can't crack it except through brute force, which depending on the key could take anywhere from a month for a really simple passcode to a lifetime to crack.

721.5.2009 17:29

Quote:
In the past RIAA experts have shown a great deal of bias, even going so far as to claim a defendant in another case must have a second computer because the one she turned over for examination showed no evidence of file sharing software or even MP3 files.
Yeah, good investigators, when they don't find the evidence it must be because the defendant was using another computer... Allmost the same as police saying if someone shoots someone and they examin their gun and find nothing and still arrest him and say that he must have another gun...

822.5.2009 0:42

Appears that a small investment in a harddrive might be a good idea. Just install Windows on it and a few typical apps.

922.5.2009 0:45

@windsong
Very well put about encrypting. Here some of what I found:
The Fifth Amendment
provides that no person shall be compelled in any criminal case to be a witness against himself. The Fifth Amendment privilege can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. The protection extends equally to civil proceedings because the nature of the protection goes to the questions asked, not the proceeding itself.

@everyone else

The riaa has the right to hire experts for their case against a defendant. Unfortunately most people can't afford their own experts. The comment about variables that never seem to get covered in these cases... well theres a reason for it need I say more.

Power to the dead people and fax machines they have tried to sue they seem to be the only ones getting out of this mess, or have they?

1022.5.2009 1:37

What if someone close by hacked a this persons wireless connection and downloaded and uploaded music. Now wouldn't that explain why there is none on her computer when he turned it in?

HDD could of been swapped with new windows put on it with few apps like someone has mentioned. I don't think everyone thinks like that when they are being investigated. It is possible.

If he had a different computer, you think they would find that doing an investigation.

How about checking if the MAC Address match for this computer she turned in?


The RIAA are a bunch of idiots. They can't prove anyone guilty when millions of people are stealing music online. The reason is because they can't do a proper investigation.

This message has been edited since its posting. Latest edit was made on 22 May 2009 @ 1:39

1122.5.2009 8:51

Originally posted by EricCarr:
What if someone close by hacked a this persons wireless connection and downloaded and uploaded music. Now wouldn't that explain why there is none on her computer when he turned it in?

HDD could of been swapped with new windows put on it with few apps like someone has mentioned. I don't think everyone thinks like that when they are being investigated. It is possible.

If he had a different computer, you think they would find that doing an investigation.

How about checking if the MAC Address match for this computer she turned in?


The RIAA are a bunch of idiots. They can't prove anyone guilty when millions of people are stealing music online. The reason is because they can't do a proper investigation.

Unfortunately it does not work like that.. A friend of mine got sued for downloading music and she tried to use that excuse.. I swapped out her hard drive and installed a fresh copy of windows she still got hammered with a million dollar fine...

1222.5.2009 13:38

What you do is when you going to be ivestigated,drop a couple of worms trojens, viruses. in a time bomb fashion. a couple for Unix a couple for Windows and set the time to next reboot and watch the fun happen.

1323.5.2009 1:10

@B33rnrdkr
That would be due to the mac address on the nic. Changing out a drive did no good.

As far as hacking a wireless router that is not an easy task when a it's set up properly. In my neighborhood alone there are no less than 10 within in range of me of those 5 are not secured. Being ignorant or claiming ignorance won't get you out of trouble when it comes to leaving open your internet connection. Read your tos with your isp, I have yet to see one without wording of some kind that says you are resonsible for those using your connection.

*Please don't misunderstand what I'm saying I'm not siding with the greedy riaa!

1425.5.2009 11:48

WEP/WPA are a cake walk to crack. WEP w/ brute force will give you the key in a matter of minutes.

WPA is a different kind of beast using brute force on that will take years to resolve the correct key, however WPA encryption suffers over time as it resolves a different key eventually reseting the router or worse requiring a cold boot. all you have to do with WPA is get it to contentiously refresh its keys until it resets.

WPA2 corrected this issue,reducing overhead,etc. its also slightly faster than WPA and better protected. that however is its weakness WPA/WPA2 likes to protect itself. WPA has a can of mace, while WPA2 drives around in an M60 Patton. M60 Patton's are harder to get to, doesn't mean its not possible.

1525.5.2009 14:06
varnull
Inactive

Packet sniffer listening to the network.. sooner or later a new dhcp release/request is made.. then you have the encrypted key to mess about with at your leisure... along with the mac number of the requesting lump of hardware.

oops.. too much info.

1628.5.2009 16:03

Originally posted by varnull:
Packet sniffer listening to the network.. sooner or later a new dhcp release/request is made.. then you have the encrypted key to mess about with at your leisure... along with the mac number of the requesting lump of hardware.

oops.. too much info.
Now now, you are going to give the RIAA too much help. They will start driving around in vans using ethereal, regardless of it being illegal...:P
This message has been edited since its posting. Latest edit was made on 01 Jun 2009 @ 10:07

Do what you can while its still questionably Legal, before it becomes UNQuestionably ILLegal.
chrialex

1728.5.2009 16:45

Originally posted by EricCarr:

How about checking if the MAC Address match for this computer she turned in?

Mac address don't mean s***. Most laptops have an option in the bios setting to present it self at any specified mac address.

Forget about the laptops. I have a mini-itx desktop mobo with onboard 10/100 Ethernet. I can program any mac address I want in the bios setting.

1828.5.2009 18:08

Quote:
Originally posted by EricCarr:

How about checking if the MAC Address match for this computer she turned in?

Mac address don't mean s***. Most laptops have an option in the bios setting to present it self at any specified mac address.

Forget about the laptops. I have a mini-itx desktop mobo with onboard 10/100 Ethernet. I can program any mac address I want in the bios setting.
if you knew how to read a mac address you would realize there is only one true mac address for your nic.

191.6.2009 10:02

There is only one true MAC, however, you can set your own for a lot of the NICs made in the last couple years. Many right from the properties page in device manager. Doing so will not over-right the true one, but it will show the custom one to (almost) anyone looking at it (the NSA for example can bypass the custom and see the true one, if they really wanted to). Also known as MAC Spoofing.

Besides, MAC address are not routable, if you are behind a firewall/on a LAN/etc, nobody on the 'net will be able to see your MAC unless they get past the firewall or into the LAN's DHCP table. And if the RIAA is doing that, counter sue for invasion of privacy, unauthorized access, etc. God help them if you are using a government (or big biz) computer and they do that. Imagine how Intel, Apple, or Microsoft would react if their system(s) were penetrated by the RIAA so they could 'search'

This message has been edited since its posting. Latest edit was made on 01 Jun 2009 @ 10:11

Do what you can while its still questionably Legal, before it becomes UNQuestionably ILLegal.
chrialex

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