Slashdot Mirror
RIAA Backs Down On "Unlicensed Investigator"
NewYorkCountryLawyer writes "Texas grandmother Rhonda Crain got the RIAA to drop its monetary claims against her after she filed counterclaims against the record companies for using an investigator, MediaSentry, which is not licensed to conduct investigations in the State of Texas. The RIAA elected to drop its claims rather than wait for the Judge to decide the validity of Ms. Crain's charges (PDF) that the plaintiff record companies were 'aware that the... private investigations company was unlicensed to conduct investigations in the State of Texas specifically, and in other states as well... and understood that unlicensed and unlawful investigations would take place in order to provide evidence for this lawsuit, as well as thousands of others as part of a mass litigation campaign.' Similar questions about MediaSentry's unlicensed investigations were raised recently by the State Attorney General of Oregon in Arista v. Does 1-17"
They filed the lawsuit in texas so the investigator has to be licensed in texas. See the connection there, Texas law equals need Texas license to conduct investigation.
If MediaSentry is licensed in some states certainly they must follow the general guidelines that Texas requires of licensed investigators.
What if Texas applies rules to investigations that protect Texans, but not others, from certain practices, or if certain things are permitted under Texas regulations but prohibited elsewhere?
I think it would be unlikely for a judge to say "Okay, we'll accept agencies licensed in Texas", because you then loose the ability to enforce investigators operating in your state to conform to the guidelines of your state - anybody could go get licensed in the most lax state for the area of investigation that is their primary focus.
I am curious what the significance of a license is. I assume a licensed investigator has to take a test and possibly be bonded. How does that affect their ability to collect evidence or impact their credibility in court?
It is considerably significant. If you are licensed, then you know that it could be revoked if you behave unethically or illegally. If you are licensed, it is an indication that as far as anyone knows, you haven't behaved unethically or illegally in the past. That DOES tend to enhance credibility in court.
The license needs to be in the particular state since otherwise, in addition to shopping for the most lax state, some might cheat by getting licenced in one state and doing all of their dirty deeds in another state outside the jurisdiction of the licensing board.
It matters in a federal case because you're not allowed to present illegally gathered evidence in court. Investigators are required to obey all relevant federal, state, and local laws.
You don't even have to be sued to do this. If you think someone is going to sue you over something, you can premptively ask the court to decide [some issue]. This allows potential defendants to take the initiative.
Anyone in Texas (or any other state for that matter) who has received one of the RIAA's form letters should sue for a declaratory judgement that MediaSentry is not licensed for private investigations in [Your State Here].
[Fuck Beta]
o0t!
Criminal courts have higher standards and the right to a jury.
IANAL but I think both parties have to be in agreement to drop a suit. The RIAA gets away with dropping so many suits because the defendants simply do not want to continue the fight and just get back to their normal everyday lives so they go 'sure lets drop it'.
Generally a party can dismiss its own case. If the opposing party has filed counterclaims, however, the case still proceeds on those.
This is a good example of the law not keeping up with (or addressing) issues brought on by technological advancement. Maybe providing the law will abate uninformed opinions:
1702.101. Investigations Company License Required
Unless the person holds a license as an investigations company, a person may not:
(1) act as an investigations company;
(2) offer to perform the services of an investigations company; or
(3) engage in business activity for which a license is required under this chapter.
***
1702.104. Investigations Company
(a) A person acts as an investigations company for the purposes of this chapter if the person:
(1) engages in the business of obtaining or furnishing, or accepts employment to obtain or furnish, information related to:
(A) crime or wrongs done or threatened against a state or the United States;
(B) the identity, habits, business, occupation, knowledge, efficiency, loyalty, movement, location, affiliations, associations, transactions, acts, reputation, or character of a person;
(C) the location, disposition, or recovery of lost or stolen property; or
(D) the cause or responsibility for a fire, libel, loss, accident, damage, or injury to a person or to property;
(2) engages in the business of securing, or accepts employment to secure, evidence for use before a court, board, officer, or investigating committee;
(3) engages in the business of securing, or accepts employment to secure, the electronic tracking of the location of an individual or motor vehicle other than for criminal justice purposes by or on behalf of a governmental entity; or
(4) engages in the business of protecting, or accepts employment to protect, an individual from bodily harm through the use of a personal protection officer.
(b) For purposes of Subsection (a)(1), obtaining or furnishing information includes information obtained or furnished through the review and analysis of, and the investigation into the content of, computer-based data not available to the public.
***
1702.381. Civil Penalty
(a) A person who is not licensed under this chapter, who does not have a license application pending, and who violates this chapter may be assessed a civil penalty to be paid to the state not to exceed $10,000 for each violation.
(b) A person who contracts with or employs a person who is required to hold a license, certificate of registration, or security officer commission under this chapter knowing that the person does not hold the required license, certificate, or commission or who otherwise, at the time of contract or employment, is in violation of this chapter may be assessed a civil penalty to be paid to the state in an amount not to exceed $10,000 for each violation.
(c) A civil penalty under this section may be assessed against a person on proof that the person has received at least 30 days' notice of the requirements of this section.
1702.382. Injunction
(a) An attorney for the department, the attorney general's office, or any criminal prosecutor in this state may institute an action against a person to enjoin a violation by the person of this chapter or an administrative rule.
(b) An injunction action instituted under this section does not require an allegation or proof that an adequate remedy at law does not exist or that substantial or irreparable damage would result from the continued violation to sustain an action under this section. A bond is not required for an injunction action instituted under this section.
1702.383. Action for Civil Penalty or Injunction
If a person has violated a provision of this chapter for which a penalty is imposed under Section 1702.381, an attorney for the department, the attorney general's office, or any criminal prosecutor in this state may institute a civil suit in a Travis County district court or in a district court in the county in which the violation occurred for injunctive relief under Section 1702.382 or for assessment and recovery of the civil penalty.
For the record, pi^(e*i) is approximately -0.99955 + 0.02989i
For the further record, I found that using some complex math software I wrote in high school. :) (Why yes, I am a nerd... why do you ask?)
Stop! Dremel time!
I've also done "several" investigations of the spammers — using tools like whois and nslookup. I was not licensed to perform the investigations — in any state.
According to this grandma's counter-suit and — more importantly — to all the kudos she got from the Slashdot crowd, all of those spammers should have a good case against me...
I may understand (and even accept) the desire to keep tabs on gun-wielding private detectives like Dr. Watson or "Maltese Falcon"'s main character, but MediaSentry, no doubt, has never even set foot in Texas, all their "investigations" being limited to the Internet. Twisting the law in this fashion should be troubling... But hey, it is RIAA, so whoever sticks whatever up theirs is our hero...
What have you done with the information you got from your investigations? Did someone pay you to make those investigations? I don't know the Texas law on private investigators, but I believe the requirement for a license comes in when someone pays you to do the investigation on their behalf.The truth is that all men having power ought to be mistrusted. James Madison
An entire album most certainly can be called a demo.
It's just a matter of the fans doing unauthorized promotion.
Such activities are probably FAR more likely to be effective
than conventional methods. This is especially true for acts
that aren't the darlings of the cartel and thus do not get
airtime in the payola system.
Once upon a time, before Clear Channel, old school radio
stations would play an entire album from start to finish.
p2p file sharing pales in comparison to that.
A Pirate and a Puritan look the same on a balance sheet.