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Mediasentry Violates Cease & Desist Order
NewYorkCountryLawyer writes "On January 2, 2008, the Massachusetts State Police ordered MediaSentry, the RIAA's investigator, to cease and desist from conducting investigations in Massachusetts without a license. Based on what appears to be irrefutable proof that MediaSentry has been violating that order, the Boston University students who tentatively won, in London-Sire v. Doe 1, an order tentatively quashing the subpoena for their identities, have brought a new motion to vacate the RIAA's court papers altogether, on the ground that the RIAA's 'evidence' was procured by criminal behavior."
The law applies to you. The law does not apply to us.
Yours truly,
MegaCorp America (tm)
I'm not doubting in any way that there is proof they have violated the cease and desist. I think that sounds like something Media Sentry would gladly do for the RIAA, but when I click on the irrefutable proof link in the summary I don't see any proof. When I went go the "Exhibits (Cease & desist order, printouts)*" link, I can see the cease and desist order and some printouts labeled from early 2007 but nothing from 2008? Could someone point me in the right direction for the evidence? Thanks.
The writeup at RIvTP cites a "cease and desist order previously issued by the Massachusetts State Police on January 2, 2008," but the pages following the first page in the PDF are all MediaSentry logs from 2007. Where is the proof that MS continued to investigate after receiving the C&D from the police?
Actually, its much, much bigger than that. First, conducting criminal investigations without a license is a felony charge akin to impersonating an officer of the law, complete with jail time (up to 5 years I believe), and fines in the tens (if not hundreds) of thousands of dollars. On top of that, if they have in fact violated a court order they have basically just multiplied whatever damages are in place by a HUGE factor. Like, guaranteed jailtime, and adding another 2 or 3 zeros to their fines (or more).
For an example, while you can't say UserA on 209.66.116.123 did something wrong, ARIN search shows 209.66.116.123 is part of MediaSentry's allotment ( http://ws.arin.net/whois/?queryinput=209.66.116.123 )
In very basic terms. I'm sure I'm omitting some technical and legal details.
There is a slight difference between doing something that is illegal and doing something illegal.
Take an action against someone for murder of something. If the police or whoever suing got their evidence because someone stole a laptop from the suspect and gave it to them after finding pictures of the killing on it, then it can often be used as evidence in a civil or criminal trial. Now suppose we find out that the person who stole the laptop was directed to do so by the prosecutor or plaintiff in the case. Now it can't be used.
So how much evidence will be tossed out can depend on when they knew their activity was illegal and if they should have known earlier. Most laws also carry a intent modifier where an action has to be knowingly committed or committed for a specific reason which can cloud the issue a little. It might be that media sentry didn't know it was performing investigation in MA because IPs don't give locations away until after your attempt to track them down. of course without seeing the law, I don't know if that could have an effect on anything or not. But this could still go both ways because of an intent to break a law in order to gather information or not.
The "irrefutable proof" is in the Exhibits (Cease & desist order, printouts) (pdf). Boy are you a lazy reader.
Ray Beckerman +5 Insightful
There's a general rule that any subpoena has to have a good faith evidentiary basis. While most Slashdotters are aware that MediaSentry's "evidence" doesn't meet that standard, and the Oregon Attorney General certainly picked up on it, most judges -- in these ex parte discovery applications -- haven't. The fact that the evidence was procured through the commission of a crime may get Judge Gertner's attention, helping her to finally realize that the RIAA does NOT have a good faith evidentiary basis for its application.
Ray Beckerman +5 Insightful
Have you actually read the document you just linked to? It's far from clear how it shows that they were violating the C&D order. All those reports are from 2007, prior to the cease and desist. I think the real story here is that, since the C&D makes clear that Mediasentry was at no point licensed to operate as a private investigator in Massachusetts, any testimony referring to reports obtained through their unlicensed investigations should be thrown out.
The interesting question in there is apparently whether or not Mediasentry was employed by the RIAA or by a law firm; there's an exception to the license requirement for PIs employed by law firms, so the RIAA is claiming that they didn't employ Mediasentry, their lawyers did.
Bobb9000 - raised by the wolves,
Oxford education as phrased by the wolves.
Except in this case you're requiring the plaintiff to show that the evidence is valid. You're argument breaks down because this isn't a criminal case of course, but even if it was, it's not unusual at all for a evidence to get thrown out because the prosecutor can't document chain of custody.
As far as prosecuting Media Sentry for illegal investigation, then yes, the state has to provide evidence instead of the other way around. But it is possible to verify the validity of an IP address through various means. It just takes more than the 15 minutes media sentry typically spends on it. (See the expert testimony against media sentry's identification methods).
Liberte, Egalite, Fraternite (TM)
HOLY COW, Bob9900..... you're 100% right. Yes I read the documents but I READ THEM WRONG, equating 2007 with 2008. I've published a correction. I apologize to all, and I am grateful to you for having brought it to my attention. The motion is based on past violations of the statute, not on violations of the cease and desist order. (However, I have been informed by a reliable source that MediaSentry has violated the cease and desist order, but do not, at this time, have documentation to back it up.)
MediaSentry was hired by the RIAA, not by MediaSentry. This was made clear in the declaration of the RIAA's Bradley Buckles in the UMG v. Lindor case.
Ray Beckerman +5 Insightful
This is an accurate way of expressing the doctrine of presumption of innocence, which is completely irrelevant here, for several reasons.
We can start with the fact that it only applies to criminal trials where the state is prosecuting a citizen for an alleged crime. This is not one of those. It is a civil trial, as part of a motion to quash evidence (by the "defendant", no less). During civil trials there are many cases where the non-moving party is required to prove that the moving party's accusations are incorrect. Just off the top of my head, from reading several summary judgement motions today, is the fact that the non-moving party (the "defendant" in your statement, though it may actually be the plaintiff) is required to come up with some sort of material issue of facts to refute a summary judgement motion. The person making the motion (the "accuser") doesn't lose just because they cannot prove that no such issue of fact exists: it is presumed that no such issue exists until proven otherwise by the "accused".
In a broader sense, all motions in civil trials generally work this way. One party makes a motion, and sets forth all of its evidence in support. The other party makes a reply motion, and sets forth all of its evidence to refute. The judge weighs all of the evidence and decides which is more compelling. The same thing happens if the case ever makes it to trial: the jury (or judge, if appropriate) is not required to find in favor of the defendant just because of scant evidence. The case is decided on "preponderance of evidence", and "slim evidence" trumps "no evidence" by that measure. If one party moves to have the court take some action and the other party does nothing to refute it, the action is generally taken by default (in cases where the court clearly disputes the validity of the evidence, it could in theory deny a motion of its own accord, but that's extremely rare).
But most importantly, even were this a criminal trial and MediaSentry were accused of a crime, there is evidence that implicates them as being the "guilty" party. The evidence is not, as this thread seems to imply, logs of MediaSentry IP addresses being used (see below), but even if that were the evidence, it's still something. It's still enough for the defendant to have some burden of refuting or discrediting that evidence.
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Having said all that, I actually went and looked at all the evidence of MediaSentry's illegal evidence gathering, and unless I'm missing something, it has nothing to do with MediaSentry's IP addresses. The exhibits filed with the court are a series of documents provided by MediaSentry that are the result of a MediaSentry investigation. That is about as conclusive as you can get that MediaSentry was conducting an investigation. (Note that the summary, and TFA originally, wrongly implicate the 2008 C&D order. What the lawyers are actually referring to is the original charge of operating without a license that led to the C&D order.)
One difference there is that the burglar discovered your crime incidental to his own crime. HIS report isn't what convicts you. HIS report gives the police enough probable cause to get a warrant and see for themselves.
In this case, the one crime by Mediasentry was comitted specifically in an attempt to find a mere civil liability by another and the police aren't interested. The evidence isn't even all that strong for a particular person or place. This is more like:
Junkie to cops: man, I broke into some house and saw someone growing weed.
Cop: Which house?
Junkie: I don't know man, I was really high! It was somewhere in this neighborhood!
Cops: Are you sure it was weed?
Junkie: well....sorta sure!
At most, it's worth a flyover with an IR camera, but it won't cause any warrants to issue.
Is it? Or are you just introducing a sliding scale here?
For what it's worth, a static IP doesn't mean that the registered IP user is the one that uses it. It can be re-routed to others, both without and with the knowledge of the IP holder. That doesn't put any onus on the IP holder to verify that the actual user doesn't use it for nefarious purposes, any more than you are responsible for what tenants do if you rent a house to them, or the driver of a car does if you lend or rent your car to them.
OK now I do have documentation of violations of the cease and desist order in January and February, 2008, subsequent to the issuance of the January 2, 2008, cease and desist order, in LaFace v. Does 1-17.
Ray Beckerman +5 Insightful
IAAL.
You are correctamundo. I expect that Mediasentry's opponents will bring a much bigger pile of evidence into court than the RIAA has been bringing.
One brick does not make a wall, but a lot of bricks, properly presented, can make a really good wall.
To amplify on another very good point you made. The RIAA has been seeking to prove that a living, breathing, natural human being "person" has committed a copyright violation. In a civil case, that means that the evidence presented must 'probably' exclude everybody except their target. An IP address (along with some expert testimony) will at best establish the location where the internet transmission occurred. If a bunch of people live at the location, it may be impossible to say that any one person 'probably' did the bad thing.
On the other hand, the Mediasentry opponents need to prove that a corporate 'person' did a bad thing. A corporate person is composed of all of its agents acting on behalf of the corporation. If any one of those agents did the bad thing while working for the corporation (you don't necessarily have to prove which one), then the corporate person did the bad thing.
If the only people using the computer were Mediasentry employees doing Mediasentry stuff, then Mediasentry may have a problem . . .
Ray Beckerman +5 Insightful