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.”
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.”
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.