it is either exculpatory or inculpatory. Culpatory is a latin phrase that has no meaning in this context
if the file has the same name and size as a copyrighted work, then it definitely is.
Umm no, that's not how you establish whether a file is the same as another. The only way to prove a file is exactly the same under evidentiary norms is by using cryptographic hash functions (MD5 or SHA normally).
Rather, after looking at the activities of the companies involved and looking at how money was being moved around, legal action was taken.
Bollocks!!!1 The USA were told in no uncertain terms that the money was fully legitimate under NZ law and also under Australian Law since they used AusTRAC to follow the trail. But of course the USA's DoJ and it's puppet masters - which are most definitely the MPAA/RIAA (enough evidence to show that in so many ways from previous dealings) they refuse to believe anyone else since they are the worlds police force.
What's even worse is that idiots like yourself actually believe most of the FUD and Swill they throw out to satiate your desire for drama that focuses the attention away from what the real problems are. ie: lack of due process, hypocrisy, ultra vires, and complicity with people with axes to grind and the money to sway legal process's.
You know 20yrs ago wasn't when I was thinking of.. Damn I feel old when I still think the 90's was only a decade ago and my 80's were when I was BBS'ing and wandering the virtual rooms of European servers without paying *whistles and looks all innocent*
Though I do remember using Packet Radio (Packrat) to retrieve the Fidonet feed once every night (about 1am to 3am) since it was cheaper (FREE!!!) than using ISDN or the even more expensive calling of International modems.
I never said any legislation or statutes (the law) required those requirements, in fact anyone in my businessany attorney/solicitor who deals with evidence knows exactly why the law never needs to.
Though your Federal Rules of Evidence actually do require those levels of probity, maybe not all the times since most cases are not resourced nor politically problematic enough to deserve that level of retention (though any forensic accredited analyser who I find out hasn't met at the minimum that level will be instantly brought before ethics committees)
Whereas this case and criminal matter is a whole new ball game for the US's DoJ. In this instance they had either go buy the Rules laid down unambiguously with no discretion or they will find themselves on the recieving end of international condemnation, appeals and a whole lot of cases pending in other cases they want to try internationally will be struck out.
I'm not really sure you understand how many interested parties are looking at this matter to look at whether the USA will be hypocritical in its own rules (and what it requires others) and if it is the whole process of reciprocity and comity will be dealt (in regards to USA matters anyway) a critical blow. I for one know a fair few people in the industry as well as practicing lawyers who will use any bending (breaking even) of the Uniform Rules of Evidence with great glee since they will use that in their own matters AGAINST the DoJ and any upstart USA court. The chilling effect is potent but hey... Eagles!!!!! *rolls eyes and wonders what will destroy you all first.. your own citizens or basically the world ridding itself of your economy*
I agree too.. for us old enough to remember edlin on DOS (you and me are old farts it seems LOL) Windows 2 and then 3.0/1, ME (shudders), 98, Xp, 7 etc made us get lazier and lazier.
Though strangely I still cannot use the mouse to copy/paste and use Wordstar commands constantly still (muscle memory) within Wordprocessors.
I think ease of use with Windows and with most people seeing a command terminal as "Evil Voodoo Majicks" (Which really has always been) is the main problem with consumer uptake of *nix.
Thankfully Android and OSX/iOS are are all *nix base and are subliminally creating a huge base of users that really don't care what OS they use as long as it works and does what they want without too much fiddling with the "majicks" underneath.
Firstly they did not fully image ALL the data instead they have cherry picked what they themselves require only.. This is not correct evidence retention practices nor is it allowed under any court approved forensic procedures dealing with data in either criminal or civil discovery processes.
If you seize electronic devices a FULL & complete digital image MUST be taken to preserve that evidence before any searching or analysis of that data can be carried out. FULL!!! Not "part thereof", not "what we need", but ALL of the data residing on the devices to be preserved "in the instance" so as to have a base to show all sides if criminal proceedings go further.
If this is not done an immediate problem is raised based on the reliability and certitude of the data in question.
Remember the burden of proof is placed on the prosecution to prove that the evidence obtained is correct and AUTHENTIC and without the ORIGINAL data that absolutely will destroy the basis of all evidence rules in courts (criminal and civil), and then you find problems with relevance, hearsay, 'chain of custody', identification, probity, bias, ... the list is extensive.
Use a part of the Miller test (for obscenity) with a "reasonable expectation of privacy" caveat in place of the current second and third prong of the test.
This then removes the full 'obscenity' ambiguity, allows Community standards of what the 'average' contemporary person thinks and allows the privacy aspect (which is the second issue these matters - with revenge/harrassment being the first) to be dealt with.
Plug in a bit of "knowingly allow" & maybe "intent to distribute" and you should have a workable statute that could meet the first amendment problems. Though a strict definition of what "community" means and some non ambiguous defenses based around "public figures, public interest etc, lack of intent, etc." would also make it more robust and able to have discretionary reasonableness applied.
Just an idea.. though I would say if this sort of thing came into affect it would need to have a sunset clause unless a review every 4-5 yrs (community standards change) is initiated.
Did you notice the pseudonym of whom you were replying to?
Interesting that "within reason" doesn't actually understand what reasonableness actually is all about.
Also replying to this type of individual who thinks that someone always needs to be blamed vicariously for the actions of others and then goes into victim vilification and 'cannibalism' (wtf!!!) if you don't agree with them makes me re-read again Bennett's rules for dealing with this sort of personality.. Always good reading by any profession not just law ;)