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RIAA Not Impressed with Legal Concerns Surrounding MediaSentry
February 6, 2008
Thomas Mennecke
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There’s something called “the big sky” theory in aviation, which argues that the volume of atmospheric space is so large, the chances of two aircraft colliding are minimal. That worked well for the first 50 or so years of aviation, until a fateful mid-air collision in 1956 led to the creation of the modern, nationwide air traffic control system. The Internet’s a big place as well, and enforcing Intellectual property rights can run into array of difficulties, especially considering the variance between state laws.

This difference in state law has led to a collision of another kind. In its pursuit of unauthorized uploaders, the RIAA (Recording Industry Association of America) has employed MediaSentry to collect evidence from various file-sharing networks. The FastTrack network (Kazaa) has borne the brunt of this attack, as a continuous stream of lawsuits has isolated this network from mainstream file-sharing.

MediaSentry’s job is straightforward. They scope out the network, find a user who’s sharing a substantial number of files (500 or more seems to be the threshold), download a few samples, take a few screen shots, note the IP address time/date stamp, and forward the information to the RIAA’s legal team. From there, the “John Doe’s” ISP is revealed via the IP address. The ISP is subpoenaed, and the “John Doe’s” identity is revealed (usually) to the complainant. The John Doe then receives a financial demand which offers the individual to settle for approximately $3,000, or take their chances in court.

Now the big question becomes this: Does MediaSentry’s evidence gathering techniques require a private investigator’s license? Several accused file-sharing defendants are joining the growing bandwagon who feel that MediaSentry’s activities do require such a license. There are two significant cases, as reported by ArsTechnica, The Recording Industry vs. The People, and Groklaw, which are gathering momentum.

The first case is located in New York. Like many record companies, Lava Records filed a complaint against Rolando Amurao for violating its intellectual property rights. Lava Records used MediaSentry to obtain its evidence; however, Amurao’s lawyer Richard A. Altman filed a motion to dismiss any evidence collected by MediaSentry. The basis of that motion centers on Amurao’s claim that MediaSentry doesn’t possess a private investigator’s license; therefore any evidence collected was done so illegally and should be excluded. The case was dropped against Amurao with prejudice. However, this leaves open a rather ominous future for his adult daughter, as indicated in Lava Records' support memorandum, which says, "Plaintiffs acted diligently to dismiss this case as soon as they learned that Defendant’s adult daughter was the direct infringer.”

> The judge presiding over the case has not made a decision, according to the documents available in the legal document repository PACER.

If the case is dismissed, it might be a while before we learn the ramifications of MediaSentry’s involvement – at least in that case. However, there’s another active case in Boston (Artista vs. John Does 1-21), where the unidentified defendants are also arguing the irrelevance and illegality of MediaSentry’s evidence. Perhaps most significantly, the Defense claims that MediaSentry received a “Cease and Desist” letter from the Massachusetts Commonwealth pertaining to their investigations.

“Although the undersigned attorney mentioned at the Hearing the fact that the Commonwealth has taken action against MediaSentry for conducting private investigations of the students without a private investigator license and has sent MediaSentry a cease and desist letter, attorneys for plaintiff did not acknowledge this point,” writes defense attorney Raymond Sayeg.

“The Court may want to consider issuing a subpoena, or alternatively having plaintiff’s counsel produce a copy of the cease and desist letter received from the Commonwealth before allowing the MediaSentry evidence to be considered in this action.”

MediaSentry Response

Slyck contacted SafeNet, the parent company of MediaSentry, and asked if they were licensed to conduct private investigations. Because of the current legal action, a company spokesperson responded, “SafeNet is not at liberty to comment on ongoing litigation.”

RIAA Response

The RIAA, however, doesn’t appear to be too concerned or impressed with the latest threat against their lawsuit campaign or the “C&D” letter reportedly sent to MediaSentry. New York State business law specifically addresses when specific evidence gathering techniques require a private investigator’s license. According to the law, the definition of a private investigator is an individual who investigates or is involved with “…the securing of evidence to be used...in the trial of civil or criminal cases.”

The exact threshold for determining the requirements of a private investigator in a civil case remains obscure. Both judges have yet to rule on the merits of the defense claims, and SafeNet is in "no comment" mode. The RIAA appears more confident, however, and has taken a rather interesting approach to the debate.

We asked the RIAA to comment on these issues, and if MediaSentry lacked a private investigator’s credentials, what implication it would have on their legal campaign. According to the RIAA, MediaSentry isn't a private investigator, and the laws governing such entities doesn't apply here.

“…MediaSentry is not an "investigator" by purposes of the statute and any evidence collected for our program would not be precluded from our complaints,” an RIAA spokesperson told Slyck.com

“Also…the Internet is without boundaries. And therefore the process of enforcing Internet offenses is without boundaries - for anyone. When we collect evidence, we do not have geographic information about the individual sharing the songs. We have public info - an IP address, a sampling of the songs, and the timestamp of the activity. We do not have their location.”

“Regardless, this question has no bearing on the validity or relevance of the evidence collected.”

The music industry’s campaign to thwart unauthorized file-sharing has taken an unexpected turn. There’s a direct challenge to the authority of MediaSentry, and the techniques it uses to gather evidence. Is MediaSentry taking on the role of a private investigator illegally? The answer remains unclear, with both sides firmly dug into their positions. The RIAA is taking the approach that MediaSentry’s role isn’t governed by the laws pertaining to private investigators, while the defendants believe their evidence indicates otherwise. A ruling from either Judge in this case will likely clear the air in the near future. If the ruling is in the defense’s favor, it could unravel the music industry’s legal campaign. This scenario could lead to disastrous consequences. Equally for the defense - if the Judges rule in the RIAA’s favor, the music industry will be more secure in its position than ever before.


This story is filed in these Slyck News categories
Entertainment Industry :: RIAA
Legal/Courtroom :: Individual Lawsuits

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