Rich Fiscus
21 May 2009 12:51
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.