Oregon AG Seeks to Investigate RIAA Tactics

NewYorkCountryLawyer writes "Turning the tables on the RIAA's attempt to subpoena information from the University of Oregon, that state's Attorney General has now filed additional papers to conduct immediate discovery into the RIAA's 'data mining' techniques. These techniques include the use of unlicensed investigators, the turning over of subpoenaed information to collection agencies, and the obtaining of personal information from computers. The AG pointed out (pdf) that 'Because Plaintiffs routinely obtain ex parte discovery in their John Doe infringement suits ... their factual assertions supporting their good cause argument are never challenged by an adverse party and their investigative methods remain free of scrutiny. They often settle their cases quickly before defendants obtain legal representation and begin to conduct discovery.'"

Comments

Common Sense!?

[physicsboy500]

Wow, hopefully this isn't shot down in the court system, and honestly if there's any common sense left in the courts (which there seems to be a slowly increasing amount of) it won't be. There have been far too many cases of snooping going unchecked, be it RIAA, NSA, FBI, etc.

Can't wait for updates to this one.

Re:Common Sense!?

[Osurak]

Wow, hopefully this isn't shot down in the court system, and honestly if there's any common sense left in the courts (which there seems to be a slowly increasing amount of) it won't be. There have been far too many cases of snooping going unchecked, be it RIAA, NSA, FBI, etc.

One of these things is not like the other, one of these things just...doesn't belong!

Re:Common Sense!?

[morgan_greywolf]

Wow, hopefully this isn't shot down in the court system, and honestly if there's any common sense left in the courts (which there seems to be a slowly increasing amount of) it won't be. There have been far too many cases of snooping going unchecked, be it RIAA, NSA, FBI, etc.

One of these things is not like the other, one of these things just...doesn't belong! NSA. Sorry, doing unchecked snooping is their business.

Re:Common Sense!?

[Paradise Pete]

Wow, hopefully this isn't shot down in the court system

At least one of the items listed could lead to criminal prosecution. If the AG decided to file charges it would have an enormous effect. And if other AGs in other states indicate they might follow that lead it will be some mighty nervous times for the Media Sentry boys and the lot.

Re:Common Sense!?

[Entropius]

Not on American citizens, it's not.

This sounds hilarious eh I mean fun

[SmallFurryCreature]

What does this mean, if I read it correctly is this really the state department responsible for prosecuting CRIMINAL cases who has launched ON THEIR OWN an investigation of RIAA methods?

Is Oregon some red state of the US? Is the prosecutor involved to old to care about his career?

I hate to get excited over nothing but this seems like a major setback for the RIAA and their underhanded tactics. A real criminal investigation? Neat.

Re:This sounds hilarious eh I mean fun

[queequeg1]

Oregon a redstate? Not a chance. A bunch of granola eating, tree hugging, hairy legged druids. Well, not literally, but the spirit is definitely there.

Re:This sounds hilarious eh I mean fun

[morgan_greywolf]

Oregon a redstate? Not a chance. A bunch of granola eating, tree hugging, hairy legged druids. Well, not literally, but the spirit is definitely there. Hey! I resemble that remark, you insensitive clod!

Re:This sounds hilarious eh I mean fun

[jbf]

Don't get too happy yet. The AG's office serves as counsel to state agencies, of which U of Oregon is one. They're not launching an investigation (e.g. this is not a People vs MediaSentry); they're seeking evidence which they can use to quash the subpoena proposed by the Plaintiffs. Nothing says that the response won't result in criminal charges (unfortunately only a misdemeanor), but this is not an AG office investigation, its a discovery related to this pretrial motion.

Re:This sounds hilarious eh I mean fun

[CFTM]

I would expect more Universities to go to bat on this, particularly after one of the preeminate law professors at Harvard issued a statement to the Universities telling them that the RIAA was full-of-it and should be fought tooth and nail because there is no case...it's taken five years to get this far and it's probably going to take another five years to get the RIAA tombstoned but so be it. On a somewhat related note, Wired ran an interesting article on Doug Morris the CEO of Universal...

Today, when he complains about how digital music created a completely new way of doing business, he actually sounds angry. "This business had been the same for 25 years," he says. "The hardest thing was to get something that somebody wanted to buy -- to make a product that anybody liked." Just because he's a CEO doesn't mean he's Smart
Is anyone else really surprised, that with such a myopic attitude, that the recording industry has resorted to these sorts of tactics? It's like, come on man, businesses change...every business changes and any CEO worth his salt adjusts to those changes. Stupid assholes got caught with their pants down and now they want to change the laws of the land to take us back to 1997 when they had complete control.

The funniest thing about it to me, is at 16 year old I could see where the music industry was going. My stance on Napster was always "Create a service where I can buy songs for 99 cents a pop, get the songs I want and not an entire CD and I'll pay for the material"; iTunes came along and I have not illegally obtained a piece of music since then. Here's to Apple getting 20% more market share because I want to see this guy fail big time.

Re:This sounds hilarious eh I mean fun

[Forbman]

actually, most of the state, at least by county, is "red". But Multnomah and Washington Counties, Lane Co and more or less Marion County (good chunks of Portland Metro, Eugene and Salem), are "blue", which is more than 50% of the state's population. The rest of Oregon is pretty red, although it is a wide variety of "red", from Fightin' Fundies (clackamas Co), to your basic conservative farmer/rancher/logger, to a good chunk of white trash-supremists in southern oregon.

Re:This sounds hilarious eh I mean fun

[jimlintott]

Even funnier to consider in 1983, Frank Zappa said the traditional model was dead. Except for some technical details he almost precisely predicted the next model.

http://www.brendastardom.com/arch.asp?ArchID=719

They never did really listen to him.

Re:This sounds hilarious eh I mean fun

[Chris Burke]

They never did really listen to him.

Well, in their defense, that's because in one second he's talking about a revolutionary new business model for music distribution, and in the next he's talking about some Nuclear-Powered Pansexual Roto-Plooker.

Zappa was brilliant, but also very weird, and they probably had a hard time distinguishing when he was being which.

Besides, they never got their prototype roto-plooker working.

Finally ...

[mdmkolbe]

It's about time!

Finally

[explosivejared]

I don't want to count the chickens before they are hatched, but I think we are beginning to see a real change in the direction of this thing. Recall EMI wanting to stop funding the RIAA. There is real success happening here. Only good can come from this scrutiny. For far too long now they've been trolling the courts and beating up on the little guy. So I say Hooray for Oregon's Attorney-General.

(see comment about chickens before hatching)Although as I type this I recall the new restrictive copyright laws in Switzerland and Canada. This has tempered my optimism, but still I think things are finally changing.

Re:Finally

[johannesg]

I don't want to be all negative here, but this would be a good time to keep your eyes open for whatever new tactics the record labels will inevitably deploy. Experience has taught that whenever this much money is involved, the parties responsible do not so easily give up. Instead they appear to give up, only to come back in a worse guise.

Real life is much like Dragonball Z, in that way...

About time!!!!

[8127972]

One can only hope that:

1. Other states copy this (not to mention the feds).
2. The RIAA gets some sense and backs down.
3. The public can enjoy their music without fear of being involved in a witch hunt.

I'm likely dreaming, but one can dream can't they?

Re:About time!!!!

[rucs_hack]

I don't think it's likely that any state is going to allow people to just download stuff for free without consequence. The issue here is whether the current methods being employed are illegal, denying defendants their rights through threats and suchlike.

I think it's likely that file sharing as it exists will die a death in the not too distant future. I also think that's its the reason for most of this draconian crap to start with, we are, as it were, all to blame.

Its very easy to point the finger at the RIAA and blame them. You can indeed get angry at them for their methods, but not their aim, which is to shut down illegal file sharing.
Even if, and I doubt this bit, it is harming the recording industry, who gives a crap. What I'm thinking about is the billions that could be made, boosting the economy, by providing cheap streaming media content. That's what the RIAA should have been concentrating on. I'm astonished that they had all that money, all those lawyers, and they still donkeyed it from day one.

Personally I long for the day when I can dial up the days entertainment on the net and have it delivered to me as and when I want, in the form I want, via a nice fat pipe to my house. I expect to pay for it too. I can't be alone in this thought.

Re:About time!!!!

[jgoemat]

I don't think it's likely that any state is going to allow people to just download stuff for free without consequence.

Why not? Nobody is being hurt. Copyright is actually the curtailing of the public's inherent rights. Government doesn't create rights, it curtails them. I see the need for copyright, the author should be the one to benefit financially from their work as a reward for creating it or incentive to create new works. However there is no harm in one who copies the work without financial reward. Originally the copyright lasted for 14 years, now it lasts for 75 years after the author dies. I am not willing to give up my rights that easily, and you shouldn't be willing to either. I think we need another amendment to the constitution, saying that absent financial motive, the rights of the people to exchange information shall not be infringed.

Re:About time!!!!

[ScrewMaster]

> Copyright is actually the curtailing of the public's inherent rights

>> Is it?

Yeah, pretty much. The whole point of copyright is to enrich the public domain, in fact Jefferson went so far as to call copyright "a loan from the public domain." So yes, copyright is very much a curtailing of the public's rights, with the express expectation that the public would be the ultimate beneficiary from that very explicit tradeoff. The current state of affairs is, I'm afraid, not remotely aligned with the Supreme Law of the Land or the public interest.

Look, I certainly hope your book is successful and that you reap any rewards you are due. However, I hope you can understand that as a member of the general public, it is my expectation that that work should belong to all of us, after you have had a reasonable time to profit from your efforts. Unfortunately, what is reasonable has carried to new levels of absurdity by Congress.

Re:About time!!!!

[geekoid]

Minor nitpic. Distributing is the crime, not downloading.

Re:About time!!!!

[ScrewMaster]

That's actually a major nitpick. Everyone talks about downloaders, but it's the uploaders that have been getting sued.

Next in Congress...

[sconeu]

A bill appointing the RIAA and its investigators as deputy federal marshals.

Re:Next in Congress...

[RobertM1968]

Next in Congress

A bill appointing the RIAA and its investigators as deputy federal marshals.

Though sconeu's comment was humorous, keep in mind that the RIAA is trying to do the equivalent by getting the government to sanction/approve their actions or grant them the power to do such things. That effort is focusing on multiple methods of ensuring it, from (1) granting them immunity from prosecution for using such illegal tactics/abusing the court system and/or (2) making it legal for them to use such methods that would otherwise be considered circumventing due-process and abusing/railroading the legal/justice system.

Sadly, it's only humorous until the RIAA gets something new (and more idiotic) passed by Congress to allow them even greater powers than the ones they are questionably abusing. So, while currently, they stretch (or outright break) various discovery and investigative laws; if they have their way, the laws will be re-written so that is no longer an issue.

I guess the questions that remain are (a) will the RIAA be destroyed before that happens? (b) will the record companies learn that such tactics are hurting their business and costing them money for no rewards (financial or piracy deterrent) or (c) will it soon become a moot point because the RIAA manages to get ridiculous laws passed that allow their current actions - and worse ones?

The Gist of the Argument

[Billosaur]

Taken from the blog Recording Industry vs The People

• Carlos Linares, upon whose declaration the subpoena was issued, had no first hand information whatsoever;
• the RIAA's "data mining" investigation does not reveal how the files were obtained or whether they were ever shared with anyone;
• the RIAA papers did not show that any infringing activity actually took place;
• MediaSentry appears to have been conducting an investigation without an investigator's license, in violation of ORS 703.405 and ORS 703.993(s), which is a crime;
• in Atlantic v. Andersen, based on the same theories and investigative techniques as those used here, they had been found by the Court to have stalled and resisted discovery, before abandoning their case rather than oppose Ms. Andersen's summary judgment motion;
• the RIAA appears to have been abusing the judicial process by obtaining information through subpoenas which it then hands over to "collection firms" using them "to leverage payment of arbitrary sums of money, based on threats and evidence from the data mining";
• the RIAA concealed a material fact from its original ex parte motion papers, which sought to create the aura of an emergency and the need for immediate ex parte action -- the fact that the University had informed the RIAA in July that the requested information had been gathered and would be preserved;
• the RIAA lawyers falsely implied that the Attorney General's office had failed to "meet and confer" with them prior to making the motion to quash, even though the AG's office had in fact conferred with the RIAA's lawyers;
• the deposition testimony of the RIAA's expert witness Doug Jacobson in UMG v. Lindor tends to indicate that the RIAA has already accessed private information on the computers of University of Oregon students; and
• the RIAA has failed to provide an affidavit of the individual who actually conducted the 'investigation'.

I think they have enough ammunition here to put the RIAA on the defensive. It'll be interesting to see how this plays out, especially what counter-arguments the RIAA comes up with. This smells like the SCO all over again.

Turn about is fair play

[Etrias]

Looking very similar to the SCO case now. The RIAA through data mining has come up with "evidence" and the AG for Oregon is asking something reasonable of the court: how did you get this information and what was it? Oh, and does the company you got this from even have an investigating license? It's sickening to see the RIAA try to get their way by their dumpster diving discovery requests.

They stalled on another case when they were asked to prove their methods. I believe the AG may have something there with investigator license which could turn into criminal charges for maybe both the RIAA and the company they hired to do their dirty work.

Re:Turn about is fair play

[m4ximusprim3]

particularly because the "investigators" in question are mediaSentry, whos douchebaggery has been well documented. Heres hoping this all ends badly for them.

Oh yea ! bring it !!

[unity100]

this is the kind of news i want to see after a long hard day's work ! - bullies getting whacked ! gives me the goosebumps. it doesnt feel like christmas, but it surely has a taste of it.

and i mean it !

Re:Opening the door to counter-suits?

[morgan_greywolf]

It would be nice if the it is found that the RIAA was involved in some serious legal wrong doing and it opened up the door to counter suits - especially by the folks who were bullied into settling. Do you smell that? *sniff* *sniff* Yup, definitely lawyers. Definitely smells like lawyers preparing class-action suit paperwork. Definitely.

Re:This is what has never made sense to me...

[Culture20]

The RIAA keep buying the pot. They go all in, and the little guy folds. They don't have to show their cards unless someone calls their bluff. Seems the AG is willing to do that with the state of Oregon as a backer.

I just had a thought - somebody alert the press!

[mmell]

But seriously - if this does carry any water legally, what about all the defendants who have settled with the RIAA in past actions. Do I assume that all those defendants will be provided an opportunity to have their cases reexamined (due to the existence of evidence not available at the times of their trials)?

I wonder if the member companies of the RIAA (Sony, BMG, etc.) could be held liable for RIAA's tactical abuse of the legal system?

Re:This is what has never made sense to me...

[LrdDimwit]

More than that. The legal system in the US is set up so that even if you have an ironclad defense -- but don't bring it up at the right time -- then you waive that defense. This is just one of the reasons you do not represent yourself unless you have no choice at all. The justification is that otherwise, no judgement would ever be final because you could continually add new legal theories to the case. In fact, this is very similar to SCO's tactics (which were quite effective at causing huge delays).

In this case, a number of promising avenues haven't been explored because nobody got good attorneys to bring them up. So the issue gets waived, the court accepts the RIAA's version because it was "undisputed". Recall the RIAA suits have been going on for a number of years, but it was only a couple months ago that this PI licensing issue was even mentioned -- because nobody ever did their homework before.

Criminal?

[Anonymous Coward]

Is there any hope that they'll indict these folks with criminal charges? Especially for the "unlicensed investigators" bit?

Because I'd sure love to see MediaSentry/BayTSP get shafted like MediaDefender was. With any luck, the latter will go out of business given that they lost the better part of a million dollars over the email leak and they were already operating pretty far into the red.

Also, is there any chance of this opening them up to lawsuits from those who were "investigated"? In other words, might Oregon (or other) residents be able to file a class action even if they already settled with the RIAA?

I'd love to see more lawyers set their sights on the RIAA. When you declare war on your customers (and yes, even "pirates" buy stuff, unless they're boycotting them now), you're NOT going to win the war.

Bah

[Anonymous Coward]

this is not an AG office investigation, its a discovery related to this pretrial motion.

This crap is entirely too complicated.

Let's grab our pitchforks!

Isn't this a form of wiretapping?

[Weaselmancer]

These techniques include the use of unlicensed investigators, the turning over of subpoenaed information to collection agencies, and the obtaining of personal information from computers.

I've always wondered how these non-government agencies can get away with this kind of behavior without someone bringing them up on some kind of wiretapping/DMCA charge. Seems like the RIAA would be in violation of the CALEA to me, as well as the DMCA - since they must circumvent access control to gain the kinds of information they claim to have. (And yes, I do count bluffing universities that they have to hand over IP addresses as circumvention - it's Social Engineering, and it's as old as hacking itself).

They're not cops. Why do they have cop powers? I know for a fact if I do *any* of the crap they're doing, I'll go to jail.

Why not them?

At This Point In Oregon

[Nom du Keyboard]

At this point in Oregon the RIAA has no case because:

An IP address and a timestamp does not identify a particular computer. It might, at most, point to a cable modem, dsl modem, wireless router, none of which store or share files.

Adding a screen snapshot of a list of files of unknown content doesn't improve in that identification.

An IP address and a timestamp and a screen shot of file names doesn't identify an individual.

None of the above shows that any copyrighted work was ever distributed illegally.

Finding copyrighted music files on a hard drive is no evidence of illegal downloading.

To recap, the RIAA has:

No way to identify an individual.
No way to identify a computer or tie it to an individual.
No proof, or ability to get proof, of illegal downloading.
No proof, or ability to get proof without having tapped internet connections of any distribution to anyone but their own investigators, who frankly don't count legally.
No case at all to justify their invasion of a user's privacy, and the extortion attempts to follow as they insist through their lying mouths, "We have already secured the information necessary to win against you in court!

The RIAA also has yet to prove in nearly all these cases that they are the current copyright holders of the very songs they seek to sue over, often presenting original copyright certificates in the names of companies that are no longer even in existence, and individual artists who have since died.

Yes, the courts need to put a direct and firm end to all this nonsense.

(Note to file sharers: Don't use your own personal, or nick, name as your KaZaA handle.)

Re:Opening the door to counter-suits?

[ScrewMaster]

Do you smell that? *sniff* *sniff* Yup, definitely lawyers. Definitely smells like lawyers preparing class-action suit paperwork. Definitely.

Put on John William's Imperial March from Star Wars, close your eyes, and imagine rank after rank of Armani-clad, briefcase-wielding warriors descending upon RIAA headquarters. Would that not be a sight to behold?

Re:This is what has never made sense to me...

[Chris Burke]

The RIAA keep buying the pot.

That must be why the Oregonians are angry!

Dave Frohnmayer

[lotho brandybuck]

President of U of O http://en.wikipedia.org/wiki/David_B._Frohnmayer used to be the AG in this state.
I'm sure he talks to the current AG once in awhile.

RIAA needs to learn to stop going after law schools.