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."

Comments

Mediasentry's repsonse

[Anonymous Coward]

IP addresses are not a reliable method of proving crimes on the internet.

Re:Mediasentry's repsonse

[arth1]

The Parent is, in fact, insightful. If you refute RIAA and their minions' claim that they should be allowed to (and is able to) pick out illegal file sharers based on IP address, you can't turn around and use IP address evidence to prove that MediaSentry defied the court order.

Yeah, it sucks, but what's good for the goose is good for the gander. It must be -- once we allow double standards, we're no better than them.

Re:Mediasentry's repsonse

[Em Adespoton]

I think you have that backwards:
Either
a) IP addresses are not admissable, so the RIAA's "evidence" has no standing and the case should be dropped without prejudice,

or

b) IP addresses are admissable, so the RIAA's "evidence" has no standing and the case should be dropped WITH prejudice.

Re:Mediasentry's repsonse

[GungaDan]

Not quite. You can't use an IP address to definitively identify an individual. But you can damn sure use one to identify a location. Which is what matters here - do the IP addresses show that MediaSentry acted illegally by doing their thing in a state where they were enjoined from doing their thing?

Re:Mediasentry's repsonse

[MightyMartian]

There's a key difference here. MediaSentry doubtless has a static group of addresses. Your average consumer DSL or cable connection is a dynamic address picked out of a pool by DHCP. There's no guarantee that an IP address is ever going to point to a specific person. The only reliable thing, for most networks, that you can derive is geographic area.

To put this another way, every time you phone your DSL or cable provider bitching because your Internet connection is down, and they ask you "Please reset your modem and your router and/or computer" odds are that their DHCP servers went wonky and you're going to get assigned a new address. Unless your specifically paying for a static address (and I'd wager the vast majority of consumer-grade Internet accounts are not), there's simply no way to say absolutely that you're going to have that IP address for anything longer than the lease period, and even that may not be absolutely reliable.

Re:Mediasentry's repsonse

[arth1]

Not quite. You can't use an IP address to definitively identify an individual. But you can damn sure use one to identify a location.

No, you can not. It is fully possible, however unlikely, that MediaSentry upon being blocked from doing investigations in Mass., rented out a VPN line to a company that was, in fact, allowed to do so. In which case MediaSentry is just a provider and carrier, much like the University that provides a student with an IP address is just a provider and carrier, and has no responsibility in what the student uses the line for. You simply can't tell from the IP address.
We must be very careful that we don't apply rules to the enemy that we don't want them to turn around and use against us.

Re:Mediasentry's repsonse

[Volante3192]

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.

Re:Mediasentry's repsonse

[Ambiguous Coward]

I disagree that you can use one to identify a location. I can be anywhere in the world and, according to my IP, it will appear to you I'm in Fairbanks AK, due to this handy little VPN I use. Granted, I have to have been granted access to the VPN, but the fact remains that IP addresses do not NECESSARILY denote location, either. It's the same problem with claiming an IP denotes an individual. An IP address CAN tell you those things, but it does not NECESSARILY tell you those things. A rectangle CAN be a square, but it is not NECESSARILY a square.

-G

Re:Mediasentry's repsonse

[arth1]

Careful here. Are you saying that those who do have static IPs from their provider should not have the same protection as those with dynamic addresses, and be responsible for the content that comes through their line (whether access is leeched through WiFi, a machine has been taken over, or a router has been compromised and acts as a VPN to a remote location)?

I sure don't want to see that happening, and that means that I must defend MediaDefender here, no matter how much I hate them. If I don't consider an IP address good enough evidence for John Doe, it's not good enough evidence to use against John Doe Ltd. either. We can't afford double standards.

Re:Mediasentry's repsonse

[arth1]

The problem is that with your (b), you set another precedent for IP addresses being admissible evidence, which allows that type of evidence to be used by RIAA and MediaSentry in the future. We do not want that.

Re:Mediasentry's repsonse

[Nicholas Evans]

What, do you think your ISP doesn't log what account get an addresses assigned to it at a particular time? They can certainly tie IP + point in time to a customer.

Re:Mediasentry's repsonse

[AKAImBatman]

It is fully possible, however unlikely, that MediaSentry upon being blocked from doing investigations in Mass., rented out a VPN line to a company that was, in fact, allowed to do so.

In which case MediaSentry could produce documentation to that effect, thus making the evidence inadmissible. Otherwise, MediaSentry is still on the hook. (Whether the use was sanctioned or unsanctioned.)

Re:Mediasentry's repsonse

[MightyMartian]

Well, to be honest, my experience with static IPs on DSL and cable connections is pretty iffy as well. We have two DSL connections which have never had an IP changed, but our cable connection has done so twice in the last year, and we're paying for static IPs. There are some types of connections, like T1s, where I'd say you're guaranteed to have the same IP block for a looong time.

Re:Mediasentry's repsonse

[whisper_jeff]

But it's brilliant - force Mediasentry to argue, in court, that IP addresses can't be used to identify and they'll effectively be arguing against themselves. Sure, it's a different case, but if they're successful, it sets a precedent that can be used in the RIAA cases. If they fail, then they've been found guilty (presumably) of ignoring a court-ordered C&D and thus all their evidence that's being used in RIAA cases is thrown out. Either way, it's a win-win. They weren't smart. They painted themselves into a corner and it's becoming less and less likely that they'll find a way out.

Re:Mediasentry's repsonse

[arth1]

In which case MediaSentry could produce documentation to that effect, thus making the evidence inadmissible.

The onus must never be on the defendant to prove his innocence. That's just like RIAA wants people to prove that it wasn't them that downloaded something.

No, no and NO; we must not allow this to happen. Ever.

Our whole justice system is based on the accuser having to provide evidence against the accused, and that the absence of evidence counts for the defendant, never the accuser.

Re:Mediasentry's repsonse

[blueg3]

This is more correct. An IP address can be used to identify a location. With corroborating evidence, an IP address (coupled with, say, timestamps for the activity, logs from the ISP, and evidence from the suspect's computer) can even be used as a component of identifying a particular user responsible for an action. However, there's no absolute guarantee -- particularly if you are denied access (perhaps due to it never being recorded) to necessary pieces of information.

While it's true that sometimes "you cannot determine the user or location associated with this IP", it's also true that sometimes you can do exactly that.

Re:Mediasentry's repsonse

[blueg3]

For criminal activity, having evidence that it's your computer/network responsible (IP address + log from ISP) should be sufficient to seize and investigate your computer and networking hardware, which may be able to corroborate that it was you, and not someone else using your network, that performed the action (and potentially will also demonstrate intent).

Re:Mediasentry's repsonse

[Ambiguous Coward]

Customer: yes. Copyright-infringing individual: no. Say I run an open WAP and a NAT, and I *don't* log who uses it. All access to network resources through my WAP is under the disclaimer that you are responsible for your own actions, not me. It probably wouldn't help me in court, on account of I can't afford $10000/hr lawyers, but at least I feel good about myself. :P

-G

Re:Mediasentry's repsonse

[arth1]

Criminal investigations are done by the police, not companies. That's a MAJOR difference.

Re:Mediasentry's repsonse

[Ambiguous Coward]

It's not a win-win. If they argue the second way, that they effectively broke the C&D, then this case (and perhaps a few others) are thrown out...IN MASS. Not elsewhere. There are 49 other states they can POTENTIALLY do business in, and that sucks for the rest of us.

-G

Re:Mediasentry's repsonse

[Svartalf]

Actually, it's not a problem for them to do so in this case.

Even leasing out the lines would be stepping on the C&D- you can't even allow someone else to be doing what you're told to stop doing using your resources. Even an alternate player leasing the lines out would be in violation.

The ONLY out they have would be to prove that they were hacked into (which would be difficult to pin on someone else- they HAVE to pin it on someone else without any involvement on their part at all...) with the purpose of framing them for the violation of the C&D. Not likely.

Re:Mediasentry's repsonse

[EverlastingPhelps]

The onus must never be on the defendant to prove his innocence.

That is the case in criminal cases. This is a civil case, and the rules are different. In a civil case, it is not unusual for a plaintiff to just be required to show a prima facae case -- a case that is at least sound on its face. At that point, a defendant can be obligated to actively clear his name or let that stand. Also, the burden of proof is much lower than beyond a reasonable doubt. The standard is usually the preponderance of the evidence, which means "more likely than not" and nothing more. 50.00001% is good enough.

Re:Mediasentry's repsonse

[PopeRatzo]

The onus must never be on the defendant to prove his innocence...Our whole justice system is based on the accuser having to provide evidence against the accused, and that the absence of evidence counts for the defendant, never the accuser.

Tell that to Alberto Gonzalez and John Yoo.

It shouldn't surprise us that corporations act this way when our own Justice Department is pointing the way.

Re:Mediasentry's repsonse

[AKAImBatman]

I don't think you understand how evidence works. Evidence is a collection of facts that can be used to demonstrate one's guilt in a court of law. It is up to the defense to provide reasonable explanations for that evidence, such that the conclusions no longer point to the crime being tried. If the defense fails to defend against the evidence, then the Judge/Jury may find against the defendant.

Geez, don't they teach you kids anything in school these days?

Re:Mediasentry's repsonse

[arth1]

Even leasing out the lines would be stepping on the C&D- you can't even allow someone else to be doing what you're told to stop doing using your resources. Even an alternate player leasing the lines out would be in violation.

AFAICT, this flies in the face of all established US law interpretation. It's quite common for companies to, if prevented by law from doing something, allow their resources to be used by someone who do have a permit to do so. This is perhaps most commonly with liquor and restaurant licenses -- if a restaurant loses its licenses, for whatever reason, the premises are leased to someone who do have the necessary permits.
Do you have any references that corroborate your claim?

Re:Mediasentry's repsonse

[Anonymous Coward]

To put it in an analogy (with true stories to back it up). If someone breaks into your house and finds you're growing pot (kidnapped children, etc. etc.). Just because what they did was a crime, doesn't mean that the police can't still prosecute you. They have, can, and will regardless of how that evidence was obtained.

It's very sad and annoying how double jeopardy allows criminals to admit their crimes, yet criminal activity is allowed to prosecute other "criminals".

Take for instance (sorry for going slightly off-topic): raids. The police (illegally by any other standards, but because they have a piece of paper "warrant" that says its not illegal?!) break and enter into a house on SUSPICION of a crime.

Re:Mediasentry's repsonse

[MrNiceguy_KS]

In this case, though, wouldn't violation of a cease-and-desist constitute a crime, rather than a civil complaint?

Re:Mediasentry's repsonse

[phoomp]

While what you say is true, I think Mediasentry should be judged by the same criteria with which it judges others. If *they* want to say that music downloaders can be identified by IP address, then they can't say that *they* can't be identified by IP address.

Re:Mediasentry's repsonse

[Ambiguous Coward]

Hence the difference between CAN and NECESSARILY DOES. Or were you agreeing with me? It's too early, and reading the Slashdot forums and the Something Awful forums at the same time is immensely confusing. :P

-G

Re:Mediasentry's repsonse

[Anonymous Coward]

Depending on how you're connected to the Internet you can even specify what you want your IP address to be. Businesses are notorious for not blocking what may be invalid content going out, and some even have basically open access. Most users seem to rely on their system to assign an IP address or someone else to have set it but there's nothing stopping someone from changing their IP to anything they want. Yes, there may be collisions or communications may be blocked due to router/firewall issues but the fact remains that you can change your IP address to anything you want.

Re:Mediasentry's repsonse

[Anonymous Coward]

IP addresses aren't a good way of proving a specific person was involved with something. In the case of a company owned block of IP's, they are a good way of proving a company was involved.

Re:Mediasentry's repsonse

[blueg3]

It is, and it's a major difference that has no bearing on whether or not you can positively associate IPs with people or locations.

A private company may have less access to the necessary information. At the very least it requires an investigative license and probably tons of other paperwork.

Re:Mediasentry's repsonse

[Anonymous Coward]

"All access to network resources through my WAP is under the disclaimer that you are responsible for your own actions, not me."

Check your ISP's TOS and you will see clauses that flatly state that you using their service means that you're responsible for any and all traffic coming from your connection.
You have a open WAP and a disclaimer? Doesn't matter, you're still responsible for the traffic, and you agreed to it when you signed up for the service.

You might end up getting sodomized in the shower after you get nailed for child porn flowing through your open WAP, numbnutz... but hey, try to feel good about that.

Re:Mediasentry's repsonse

[Anonymous Coward]

Your example doesn't quite fit, since it deals with a lack of a license, but in the case at hand one party has been explicitly forbidden to perform a certain task. It's more like beeing forbidden to serve any customers at your premises because it doesn't conform to fire safety regulations, and then selling it to your wife for US$1 and let her operate it, since it has not been forbidden to her.

Re:Mediasentry's repsonse

[MirthScout]

IP addresses do not identify an individual. Dynamically assigned IP addresses via DHCP, multiple users, guests all prevent identifying the individual in cases such as Media Sentry trying to ID an individual by IP address.

BUT, in this case we aren't trying to ID an individual. We are identifying a COMPANY, Media Sentry. The IP addresses are assigned to them, almost certainly static. The people using those addresses work for Media Sentry. The activity detected as originating from those IP addresses are the very things Media Sentry advertises that it does and has been ordered to stop. I'd say that positively IDs the COMPANY using it's own IP addresses as Media Sentry. Can't ID which individuals at Media Sentry and don't care since it simply doesn't matter.

Re:Mediasentry's repsonse

[MobyDisk]

IANAL.
There are 2 problems with this entire line of thinking:

1) This is not a double-standard.

In the first scenario, MediaSentry is submitting a dynamic IP address that cannot be linked to an individual. In this scenario, they are presenting what is probably a static IP address tied to MediaSentry's offices. That is much stronger evidence. Also, it sounds like the second scenario is being used as pre-trial evidence that MediaSentry violated the restraining order -- not as evidence to be admitted in a trial.

2) IP addresses should always be admissible evidence.

The value of an IP addresses varies. Sometimes it is a dynamic IP. Other times it is static, but not assigned to an individual port or desk. Other times it is tied to a specific computer that only a few people have access to. IP addresses should always be admissible - but the judge and jury must understand the difference. Making a blanket rule like "IP addresses are never admissible in court" is too limiting.

It would be like saying that scratch marks are never admissible as evidence because you cannot specifically tie that to an individual. The scratch marks still indicate that a struggle happened, and where it happened, and who might have been in that location when they were made. etc.

Re:Mediasentry's repsonse

[Repossessed]

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).

Re:Mediasentry's repsonse

[drmerope]

No, the RIAA court filings declare that Media Sentry engaged in the activity. So its irrelevant what the Media Sentry IPs are. This isn't part of the counter-suit. the RIAA's own filing is.

Re:Mediasentry's repsonse

[LordEd]

Not a lawyer or american

Music downloaders can not be identified by IP. This is because anybody could potentially use a computer on the specified network to perform the action.

Now, consider that the cease & desist is towards a business. It is not an individual who is being targeted, but the business entity. The IP address can identify a network, which belongs to the business itself.

I suppose unauthorized use could still be an argument, but many businesses (especially larger ones) have security measures in place (domain logins, firewalls, etc), not to mention stricter controls on who is permitted in the area. Considering mediasentry's claim to "proprietary methods", it would be hard for them to argue just anybody could access their network.

Re:Mediasentry's repsonse

[cromar]

I may be wrong, but if the case is dismissed, no precedent is set, right?

Re:Mediasentry's repsonse

[Jerry Beasters]

You can't? Oh really? Do I seriously have to point out the multiple situations in which an IP address can indisputably be linked to a single computer?

Re:Mediasentry's repsonse

[spazdor]

This is silly. You can also change the numbers displayed on your house but it doesn't mean mail to your new "address" will get to you, ever.

Re:Mediasentry's repsonse

[Jerry Beasters]

You're damn right they shouldn't. If someone has a static IP that can be then linked to the computer, it is then valid evidence and should be treated as such. A dynamic IP is completely different.

Re:Mediasentry's repsonse

[spazdor]

You mean you ain't got 'cho Mystery Solvin' License?

Re:Mediasentry's repsonse

[Anonymous Custard]

Even leasing out the lines would be stepping on the C&D- you can't even allow someone else to be doing what you're told to stop doing using your resources. Even an alternate player leasing the lines out would be in violation.

AFAICT, this flies in the face of all established US law interpretation. It's quite common for companies to, if prevented by law from doing something, allow their resources to be used by someone who do have a permit to do so. This is perhaps most commonly with liquor and restaurant licenses -- if a restaurant loses its licenses, for whatever reason, the premises are leased to someone who do have the necessary permits.
Do you have any references that corroborate your claim? Just like any other company, Mediasentry is allowed to hire a licensed private investigator to do PI work in Massachusetts. Just like a company can hire a licensed lawyer to practice law for them, even if the company itself isn't licensed to practice law.

I doubt that's what happened, though. I think Mediasentry just never stopped the activities that earned them the C&D in the first place.

Re:Mediasentry's repsonse

[galoise]

Apart from the reliability issues already put up by several of my fellow /.ers, there's another problem related to the different standard of proof required by different legal actions. ie, you requiere lesser standards of proof for a civil case, where in theory you are not violating the liberties of anyone, than in a criminal case, where the outcome might strip someone of very basic rights.

In this context, you need totally clean, perfect and irrefutable evidence to convict of piracy, than the one you need to prevent a private third party of violating your liberties by spying on you.

Now, the above has two twists:

1.- The possitions can be reversed, mediasentry has rights of their own, although juridic personalities (or whatever you call organizations) don't have the same rights as natural personalities (or whatever you call people).

2.- The above is nothing more than a more legalesse formulation of the argument about the reliability of IP addresses as proof. That's what standards of proof are all about.

The point is that you can have it in such a way that IP based evidence is inadmisible to prove copyright infringment, but admissible to proove C&D infringment. And this is no doulbe standard, and we are still much muhc much better than them.

ps: IANAL.
pps: I'm not from the USA, so things might be different in your legal system... but AFAIK, that's what the "reasonable doubt" thingy you use is about.

Re:Mediasentry's repsonse

[dgatwood]

prima facie. But yes.

Re:Mediasentry's repsonse

[KutuluWare]

Our whole justice system is based on the accuser having to provide evidence against the accused, and that the absence of evidence counts for the defendant, never the accuser.

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.

----

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.)

Re:Mediasentry's repsonse

[Anonymous Custard]

Even leasing out the lines would be stepping on the C&D- you can't even allow someone else to be doing what you're told to stop doing using your resources. Even an alternate player leasing the lines out would be in violation. I suggest you carefully read the C&D order.

All it says is "you're operating a private detective company without a license, so you must stop or else we'll press charges."

It doesn't say they're not allowed to hire a licensed private detective company to investigate on their behalf. They could even give the PI their software to use, and lease the PI an office in their building as part of the PI's contract.

Re:Mediasentry's repsonse

[sjames]

Actually, it sets up a far more interesting logical problem for RIAA and MediaSentry.

IP addresses are never personally identifying, but do indicate that someone on that network (authorized or not) was responsable.

For the typical home user, that means a freeloader on their WiFi, someone making unauthorized use of their PC, or someone on the same subnet at the less than secure ISP.

Home networks often have less than stellar security. That's neither crime nor tort. Since the typical use of a home network is unimpeded by such security issues, it's not even a real problem for the most part.

However, a would-be investigative agency (legal or not) has a real problem if THEIR network is insecure. If their computers and network are insecure, their 'evidence' is questionable at best.

Furthermore, the IP address being one of Mediasentry's means that either the information came from MediaSentry (and so is the result of an illegal act by Mediasentry) OR it came from some other agency that was making unauthorized use of Mediasentry's network (and so is also as the result of an illegal act). In the second (unlikely) case, the 'evidence' is in any event untrustworthy.

So, if Mediasentry would like to deny violating the C&D alleging someone hopped onto their network without permission, they may do so. Without further evidence to the contrary, we'll just have to accept their explaination and let it go. However, THEY will have to live with the implications of their claims. Their alternative is to maintain that their network remains uncompromised and own up to violating the C&D.

As you can see, there is no double standard. Consistantly applied reasoning with a single standard is all that is necessary to show that the Mediasentry IP showing up in the 'evidence' is damning to Mediasentry's position either way but is not adequate to find against a defendant in any of the RIAA's many lawsuits.

Re:Mediasentry's repsonse

[geekoid]

No really.
We can find out what computer is was, the problem is who was using that computer at the time. Since they are a corporate entity, it doesn't matter who the individual is, you go after the corporation. That is the fundamental difference.

You want to spread out your liability among several people(share holders) thats the price of the game.

Re:Mediasentry's repsonse

[arth1]

Since you're not American, it might surprise you to hear that in the US, business entities are protected by the same rights as individuals (but they don't always have the same obligations).

And, they don't have to argue that "anybody" could have used their network. What's to prevent them to argue "Our network was used by Schyster, Schyster, Iqbal and Schyster, a law firm that is entitled to do investigations in Mass? And, by the way, thanks for so clearly pointing out that IP addresses are valid identifiers -- now apply the same logic to these 5,000 RIAA cases too please."

Unfortunately, I see this as someone with good intent shooting themselves (and a bunch of others) in the foot. Only by offering even MediaSentry or other "enemies" the same protection as you want individuals to have, can you guarantee that individuals will be protected.

Re:Mediasentry's repsonse

[arth1]

If reported to the police as a crime, sure, the police could investigate it and decide whether or not to press criminal charges. However, that doesn't seem to be the case here.

Re:Mediasentry's repsonse

[sjames]

To put it in an analogy (with true stories to back it up). If someone breaks into your house and finds you're growing pot (kidnapped children, etc. etc.). Just because what they did was a crime, doesn't mean that the police can't still prosecute you. They have, can, and will regardless of how that evidence was obtained.

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.

Re:Mediasentry's repsonse

[LordEd]

Our network was used by Schyster, Schyster, Iqbal and Schyster, a law firm that is entitled to do investigations in Mass? Response: Please show proof of hiring and activities on ___ days.

And, by the way, thanks for so clearly pointing out that IP addresses are valid identifiers -- now apply the same logic to these 5,000 RIAA cases too please." RIAA: Your network has been used to steal music
Home: There are 5 people who live here. Who are you suing?
RIAA: _??_

IP addresses are identifiers of a network, not of a person. In a home, a network may be used by multiple inviduals. In a business, a network is used by the business.

Re:Mediasentry's repsonse

[KDR_11k]

Not by default but this would be after evidence against the defendant was presented, it's the job of the defender to counter that evidence to prevent it from proving guilt. If party A presents a document saying someone with a MediaSentry IP was active in the state and MS didn't refute that evidence or at least provide reasons why it's insufficient to establish guilt (and I don't think just saying MAYBE they rented out a VPN connection would be enough, they'd have to show they actually did) then the judge should rule MS guilty.

You may be innocent until proven guilty but once you've got evidence pointing at you that's going to turn into proof if you just sit there and take it.

Re:Mediasentry's repsonse

[arth1]

In the first scenario, MediaSentry is submitting a dynamic IP address that cannot be linked to an individual. In this scenario, they are presenting what is probably a static IP address tied to MediaSentry's offices. That is much stronger evidence.

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.

Re:Mediasentry's repsonse

[arth1]

IP addresses are identifiers of a network, not of a person. In a home, a network may be used by multiple inviduals. In a business, a network is used by the business.

With VPN, no, IP addresses are not identifiers of a network anymore. And in a business, a network is used by the business and business partners. Just because MediaSentry holds the IP range in question doesn't imply that it's MediaSentry that uses the IP addresses. It could be a business partner of them.
And it must never be up to the defendant to prove who used something -- the burden of proof must always fall on the accuser, lest we take the first steps toward a system where you're guilty until and unless you can prove yourself innocent.

To be honest, I see no evidence that it was MediaSentry that used the IP addresses belonging to MediaSentry. Allowing the IP address as evidence here is either saying that you want IP addresses to be permissible evidence in general, or you use double standards.

I detest what MediaSentry does, and think they should be stopped, but this is not the way to do it -- I fear that it will ultimately harm everybody who in the future wants to use an "IP address does not imply culpability" defense.

Re:Mediasentry's repsonse

[sjames]

I don't think you understand how evidence works. Evidence is a collection of facts that can be used to demonstrate one's guilt in a court of law. It is up to the defense to provide reasonable explanations for that evidence, such that the conclusions no longer point to the crime being tried. If the defense fails to defend against the evidence, then the Judge/Jury may find against the defendant.

Only once the prosecution demonstrates that the evidence points to a crime (beyond reasonable doubt) in the first place. The defense is free to present counterarguments (a plausible alternate explaination of the evidence is good enough) or to present evidence that the prosecution's evidence is flawed (or even falsified).

Re:Mediasentry's repsonse

[arth1]

Check your ISP's TOS and you will see clauses that flatly state that you using their service means that you're responsible for any and all traffic coming from your connection.

That only pertains to disputes between your ISP and you. If someone not affiliated with your ISP presses charges against you, you are not culpable because of your contract with your ISP. You may very well violate that contract, willfully (in which case the ISP can toss you out and charge you for it).

It's like when renting a car -- you are not allowed to let anyone else drive it. Yet, if you let your pal drive it, and he mows down a police officer in it, you're not culpable for killing a police officer, no matter what the contract between you and the car rental company said.

Re:Mediasentry's repsonse

[UncleTogie]

They could even give the PI their software to use, and lease the PI an office in their building as part of the PI's contract.

The question is: Would a PI be willing to lose their license by using tools that have been shown to be faulty, and presenting that as "evidence" in court?

Re:Mediasentry's repsonse

[AKAImBatman]

Only once the prosecution demonstrates that the evidence points to a crime (beyond reasonable doubt) in the first place.

An IP pointing to MediaSentry's network is pretty strong evidence and will most likely be admitted into testimony. Of course, there's still the problem of solidly documenting what that IP was doing, but that isn't the argument at hand.

Re:Mediasentry's repsonse

[Anonymous Coward]

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 . . .

Re:Mediasentry's repsonse

[canuck57]

The Parent is, in fact, insightful. If you refute RIAA and their minions' claim that they should be allowed to (and is able to) pick out illegal file sharers based on IP address, you can't turn around and use IP address evidence to prove that MediaSentry defied the court order.

I think you can. If you see a TCP IP session going from one IP to another. You can assume which network originated it because of routing. You can in fact be pretty sure the network was the source, just not which person/PC it came from. Only that someone had access.

For example, if I was a student, evil one at that. I could scan out the IPs on the network. MS-Windows being noisy, just listen, get the MAC addresses. When I can't ping them, I change my MAC to theirs and join the network with their IP, in fact masquerading as them. Download the stuff. Then disconnect. RIAA comes and gets the wrong person.

You must catch them in the act to be sure. As I could also break into their PC, drop of say 50 tunes, or turn their system into a proxy.

And these pranks at any school I know, do happen.

Now you can prove the network, but not who did it. You know which network someone was using.

The same can be said about MediaSentry. If it came from their network, you can verify that, but cannot tell which PC/person inside did it.

Re:Mediasentry's repsonse

[Eevee1]

I have to agree with that. I have a dynamic IP, and I remember one time that it switched to that of a spammer on Spamhaus. I was glad when it switched back.

Re:Mediasentry's repsonse

[arth1]

The question is: Would a PI be willing to lose their license by using tools that have been shown to be faulty, and presenting that as "evidence" in court?

If it pays well enough, hell yes.

Re:Mediasentry's repsonse

[NormalVisual]

To be honest, I see no evidence that it was MediaSentry that used the IP addresses belonging to MediaSentry. Allowing the IP address as evidence here is either saying that you want IP addresses to be permissible evidence in general, or you use double standards.

*Someone* performed the investigative work for the RIAA using their network, and this is irrefutable. So, MediaSentry either did the work themselves (most likely, and illegal), someone did it using their network with permission (still illegal), or they had no knowledge of it. I'm perfectly fine with MediaSentry totally invalidating any expectation of ever again being taken seriously in a courtoom by admitting to ridiculously lax network security policies (which really seems their only workable defense), but I think what will probably happen is that if the state chooses to pursue this, they'll subpoena every last bit of information regarding how MediaSentry runs their network. I expect that MediaSentry actually does run a pretty tight ship with regards to security, and that fact will be used to hoist them by their own IP addresses in court, particularly when the results of this break-in were coincidentally used for the benefit their best customers instead of for personally beneficial reasons like almost every other computer break-in.

Most residential users don't know the first thing about how networking works, much less effective security practices, so it's quite proper to claim that there's no provable connection between the IP address itself and the user at the time in question. Claiming unauthorized use is much less effective when you're an organization that has a competent IT staff whose job it is to protect against such things, and firewall and other logs documenting the network's use at any given point in time.

Re:Mediasentry's repsonse

[dshadowwolf]

Your argument falls apart, however, because renting a location out means that the company without the license is no longer utilizing said property. What MediaSentry has done, if they did, in fact, rent out the lines to a company that was not under a restraining order, is to attempt to sidestep the ruling against them.

They are still doing their jobs - ie: collecting evidence for the RIAA - even though they are not doing it directly. In other words, they are providing the lines to an "authorized agent". Since MediaSentry was enjoined from collecting the data themselves, any company that they provided the lines to and "authorized" to collect the data in their stead is also enjoined from doing the collection. QED: No matter how you try to twist the facts, MediaSentry is still breaking the law.

Re:Mediasentry's repsonse

[sjames]

An IP pointing to MediaSentry's network is pretty strong evidence and will most likely be admitted into testimony. Of course, there's still the problem of solidly documenting what that IP was doing, but that isn't the argument at hand.

yes, in this case, it's not looking good for Mediasentry.

Re:Mediasentry's repsonse

[kesuki]

Cable modems drive me crazy. I had an original cable modem, from when cable modems first came out, and because it didn't have adequate thermal protection, i wound up breaking it open, and putting heat sinks on all the hot chips (there were 2) it wasn't as fast as it originally was because of thermal damage to the chips, but that sucker would stay up and running for years at a time...

but now, you get a POS cable modem that can't even change it's own ip address without a power cycle WTH is wrong with cable companies? Do they really want to loose customers to DSL or fiber to the home? my sister's DSL company even shipped a DSL router complete with a wireless access point (with encryption enabled by default) she never ever has to power cycle the DSL...

Re:Mediasentry's repsonse

[Anonymous Coward]

I disagree, IP geolocation is mostly B.S. I purchase a portable SAT 'net link from a company that uses an IP block registered to the Chinese. I then take it to most anyplace in the world. So, what happens when you trace my address? These little boxes aren't so common in the US, they are however more common overseas and fairly portable.

Re:Mediasentry's repsonse

[Anonymous Coward]

To be honest, I see no evidence that it was MediaSentry that used the IP addresses belonging to MediaSentry.

Seriously? You're either a moron or woefully unaware of networking basics. Since this is Slashdot, my vote goes for both.

Mods, do yourselves a favor and mod this idiot down.

Re:Mediasentry's repsonse

[DrLang21]

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. Just because you are not responsible for it does not mean that it can't be admitted as evidence if you are the one suspected of and prosecuted for a crime that was committed with it. It's only a piece of evidence, not proof. In the case of a dynamic IP address being used as evidence, it is up to the defense to provide an expert witness to explain why it is practically meaningless as evidence.

Re:Mediasentry's repsonse

[LifesABeach]

Was the "Criminal Behavior" based on what the RIAA has done in perverting law, or MediaSentry's?

Re:Mediasentry's repsonse

[GuyverDH]

But wouldn't the evidence of Mediasentry's illegal investigation be the start of a new criminal case against Mediasentry, and possibly the RIAA as the ones who hired the dirty-deed done (akin to someone hiring a hit-man), albeit not in the same category, but similiar...

Re:Mediasentry's repsonse

[EverlastingPhelps]

But wouldn't the evidence of Mediasentry's illegal investigation be the start of a new criminal case against Mediasentry, and possibly the RIAA as the ones who hired the dirty-deed done (akin to someone hiring a hit-man), albeit not in the same category, but similiar... Possibly, but unlikely. And, even if it was, and Mediasentry refused to qualify, the law normally allows the civil court to draw an inference that they are most likely doing it because they are liable (and most likely is the standard of proof.)

Re:Mediasentry's repsonse

[LordEd]

To be honest, I see no evidence that it was MediaSentry that used the IP addresses belonging to MediaSentry. The article had a correction on it at some time. The posted evidence showed previous offenses, not current. This is still a good theoretical argument though.

Allowing the IP address as evidence here is either saying that you want IP addresses to be permissible evidence in general, or you use double standards. I am not implying a double standard. Quick google search for an example bring up a statement very similar to what I am attempting to argue (but probably better phrased).

While there are indeed problems with mapping IPs to people, in this instance there was no doubt as to who occupied the IP in question (namely, the Fosters). There was considerable doubt, however, that it could be convincingly argued that it was in fact Ms. Foster or her daughter who downloaded the material in question. The RIAA backed off of the case, but without specifying why. An IP address points to a network. It can not point to a person. I believe it would have a better chance to be successful against a business than an individual. The IP address is a narrowing evidence, not the end evidence. It can prove that somebody in __ network (yes, vpn is another technical potential argument, but has security locks on it) did something inappropriate. Now, if that inappropriate action is a core property of your business, I think it would require some explaining by the defendant.

I believe there was another case that the RIAA was successful because the person used a username that they use everywhere on the internet in addition to the source being on their network.

And it must never be up to the defendant to prove who used something -- the burden of proof must always fall on the accuser I do not believe it is unreasonable to ask for an explanation if a network owned by a company whose core business is to perform that action is directed where it shouldn't be.

If a building explodes for no apparent reason, but there is a small smoke trail leading from a local missile developer, is it unreasonable to ask for an explanation because they might use a contractor or lease space?

Re:Mediasentry's repsonse

[MobyDisk]

For what it's worth, a static IP doesn't mean that the registered IP user is the one that uses it Granted.

any more than you are responsible for what tenants do if you rent a house to them, Yes, but the RIAA isn't holding the school responsible. They are merely requiring the school to divulge who they assigned that IP address to, at the time. A better analogy would be requiring the landlord to reveal the name of the tenants. Doing that is perfectly reasonable. After that, it is up to the prosecution to show that tenant was the one who was actually present at the time of the crime. Likewise with the IP addresses. Asking the school to divulge who was assigned the IP address is reasonable, assuming they have proper evidence to submit the subpoena in the first place.
(Yeah, big IF!)

NOTE: I assumed "IP holder" meant "IP address holder" not "Intellectual Property holder"

Re:Mediasentry's repsonse

[NewYorkCountryLawyer]

Asking the school to divulge who was assigned the IP address is reasonable, assuming they have proper evidence to submit the subpoena in the first place. (Yeah, big IF!) Yeah, very very big IF, since they've admitted they haven't a clue as to who committed the alleged copyright infringements.

So now it's us Vs. RIAA?

[socz]

Now that they have this against them, can all those who paid up because of their accusations counter sue and reclaim some of the damages paid? Or will they just get a slap on the wrist?

Also, will they just say "it's not us, it's the record companies, we just represent them..." crap?

Re:So now it's us Vs. RIAA?

[JamesRose]

I think its far more likely the RIAA will have "distributed" the money from the cases ot the big four record companies, so when the counter suits come, there's no money left to sue for.

Re:So now it's us Vs. RIAA?

[91degrees]

Also, will they just say "it's not us, it's the record companies, we just represent them..." crap?

I don't think it makes a difference. The actual lawsuits have been filed under the name of the record companies (This particular one was Arista vs. John Does, I think). As such, any counter suit can be filed against the record company.

Re:So now it's us Vs. RIAA?

[conlaw]

can all those who paid up because of their accusations counter sue and reclaim some of the damages paid?

No, the people who settled essentially paid to avoid going to trial so they don't get to change their minds and have a trial now just because they found out that they probably wouldn't have lost.

Surprise!

[Anonymous Coward]

Surprise! The RIAA blatantly violates the law! Everyday people get screwed!

*scrolls down*

Surprise! Microsft blatently violates the law! Everyday people get screwed! ...Ahhh.... A great day to be on /.

Laws

[whisper_jeff]

The law applies to you. The law does not apply to us.

Yours truly,
MegaCorp America (tm)

Re:Laws

[sm62704]

This is America, buddy, where no rich and powerful man ever goes to prison unless a richer and more powerful man wants him there. It's called a "plutocracy".

Don't you people get it?

[NotBornYesterday]

Laws only apply to little people like you, not big people like us. Now give us some money and go away. Sincerely, RIAA

Re:Don't you people get it?

[Anonymous Coward]

Legal results are completely changeable ... So to say they have "won" or violated a subpoena does not quite make sense. Even with this temporary result, lawyers would get together and come up with a ruling that would undo this "win." Point to be taken... law is not like programming or math which may have a definite answer... lawyers perform what ever legal manipulation possible to justify the result they want. The rules are there only to put up the appearance of fairness and propriety to the public.

JUST ASK ANY LAWYER...

Important note

[Enlarged to Show Tex]

Most likely, the only papers that they will be able to vacate are those based on investigations taking place after being served with the C&D order. Whether that costs them enough evidence to prevent them from winning a judgment remains to be seen, however...

Re:Important note

[R2.0]

"Most likely, the only papers that they will be able to vacate are those based on investigations taking place after being served with the C&D order. Whether that costs them enough evidence to prevent them from winning a judgment remains to be seen, however..."

As I understand it, MediaSentry is not licensed in the state of Massachusetts period. That means that their previous behavior was illegal as well. The C&D is a legal tool to make it absolutely clear to someone doing an activity that their actions are illegal - it does not relieve them of responsibility for those actions before the C&D.

Re:Important note

[Anonymous Coward]

nice to see you have moved out of the shithold that is k5. come to reddit, where the trolling is once again fun and the users too stupid to notice.

Re:Important note

[NewYorkCountryLawyer]

As I understand it, MediaSentry is not licensed in the state of Massachusetts period. That means that their previous behavior was illegal as well. The C&D is a legal tool to make it absolutely clear to someone doing an activity that their actions are illegal - it does not relieve them of responsibility for those actions before the C&D. I would say you "understand it" pretty well.

Re:Important note

[Anonymous Coward]

Nope. The C&D "order" has no legal effect (other than the inherent effect to give notice and is therefore useful for proving intent). What they were doing before the C&D notice was no more legal than what they have done after it. Maybe they don't agree with the state police that they are doing detective work, or maybe they think the law is unconstitutional.

Re:Important note

[sumdumass]

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.

How pathetic

[Anonymous Coward]

IP infringers try to justify their unauthorized downloading of copyrighted material.

These legal issues with Mediasentry are petty technicalities. The important thing is that greedy pirates are trying to entertain themselves with content without paying. This isn't fair to the labels, artists, or countless artisans involved in this hard work.

Every Madonna song you download illegally impoverishes the people of Malawi. Please pay the market price for this regulated scarcity.

Madonna is the best!

Re:How pathetic

[conteXXt]

"Every Madonna song you download illegally impoverishes the people of Malawi"

Slashdot Gold Baby.

Pick up your prize at the door on the way out.

Re:How pathetic

[Jason Levine]

Since when are Cease and Desist orders, especially ones issues by the state police, "petty technicalities"? If I was to violate such an order, I can guarantee you that the judge wouldn't just shrug his shoulders and call it a technicality. Media Sentry violating the law is not acceptable even if doing so results in them getting evidence of other illegal activity. First of all, such evidence would be thrown out in any trial. Secondly, companies can't just violate the law when it's convenient for them without consequence. (Queue the cynic in me saying "Of course they don't violate the law. They pay some congressman to change it for them.")

Re:How pathetic

[nomadic]

Since when are Cease and Desist orders, especially ones issues by the state police, "petty technicalities"? If I was to violate such an order, I can guarantee you that the judge wouldn't just shrug his shoulders and call it a technicality. Media Sentry violating the law is not acceptable even if doing so results in them getting evidence of other illegal activity. First of all, such evidence would be thrown out in any trial. Secondly, companies can't just violate the law when it's convenient for them without consequence. (Queue the cynic in me saying "Of course they don't violate the law. They pay some congressman to change it for them.")

The state police do not have the authority to adjudicate criminal charges; they may have decided that MediaSentry is violating the law, but if they want to hold MediaSentry accountable the state will have to prosecute them.

Re:How pathetic

[Tenebrousedge]

It's absolutely terrific that you managed to spell queue correctly (are you using Firefox?) but the word in question would actually be "cue". Webster tells me that it's mangled Latin.

Usage:

"Cue the trumpets and the chorus, for Tene has arrived!"

"Tell me the one where the drummer doesn't come in on cue."

Lastly, we have the normal /. usage, "Cue the flamers!" **ducks and runs**

Irrefutable proof?

[milamber3]

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.

Re:Irrefutable proof?

[LordEd]

I'm a bit confused on the Irrefutable proof as well. Somebody correct me if this guess is wrong, but:

a. The exhibit document lists a number of reports generated by Mediasentry

b. The documents identify IP addresses of supposed infringers

c. These IP addresses on a quick traceroute identify these investigations to be located in Massachusetts (at leastone IP is at Boston University)

d. These documents have been submitted to courts as evidence (each document has a case #)

e. Because the IP address is in Massachusetts, the investigation has crossed into these borders. Because they have been submitted to courts, it is proof of investigation.

Otherwise, I think the proof needs some notes along with it.

Re:Irrefutable proof?

[LordEd]

printouts labeled from early 2007 but nothing from 2008? Probably should have read that before posting.

Re:Irrefutable proof?

[Lloyd_Bryant]

As far as I can tell, that "proof" doesn't exist. Ray's summary appears to be exaggerating quite a bit.

But not to fear - this *is* still quite useful. The challenge clearly shows that
a. MediaSentry *did* conduct investigations in Massachusetts.
b. The police, upon becoming aware of this, sent them a C&D letter.

So, as of Jan 2008, as far as the police could tell MediaSentry was not licensed to investigate in the state of Massachusetts. Which means that it is very probable that any evidence gathered in May of 2007 was not gathered by a licensed private investigator, and as such qualifies as illegally gathered. Which may or may not be enough to get this case tossed.

Now what will *really* be interesting is if the RIAA file any cases in Mass. that has "evidence" dated *after* Jan 2008. But given the long delay lag between detection and case filing, it'll be a while before that's likely to happen.

Re:Irrefutable proof?

[NimbleSquirrel]

It seems everyone is confused. This isn't about IP addresses. The IP addresses themselves are not the irrefutable proof, but the timestamp on those IP addresses is. The reports, which supposedly have already been submitted as evidence to the courts, have all been made after January 2nd, when the cease and desist order was made.

If the RIAA have submitted these as evidence, then MediaSentry would have signed an affadavit that they are true and corrrect. This means that they have already admitted to the courts that they are operating after January 2nd.

If they try to refute that, at the very least they could be charged with fraud and/or perjury, not to mention the charges of operating without a permit.

This then throws MediaSentry on very shaky legal ground, and therefore all the evidence they have presented to date.

Re:Irrefutable proof?

[techno-vampire]

e. Because the IP address is in Massachusetts, the investigation has crossed into these borders. Because they have been submitted to courts, it is proof of investigation.

OK, there's something here that looks wrong. Let's say I'm a PI in (at random) Ohio, with a license there, but not in Massachusetts. Sitting in my office, I do a traceroute on an IP and it ends in Boston. How does that lead you to say that I was investigating there? You certainly wouldn't say that if I called somebody in Boston on my phone, or emailed them, would you? How is a traceroute different?

Re:Irrefutable proof?

[LordEd]

Good question. I have no idea what is legally considered 'investigation'. Here's where we need some legal interpretation.

My 'guess' is that because the object of investigation is located in Mass., then it would prevent me from investigating it.

If I scan somebody's computer who is in a state that I am not permitted to investigate, am I still allowed?

How about if I was in Massachusetts, but investigating into a state I was permitted to investigate?

What if I do so from another country? Can I go on vacation to Mexico, drink tequila, and gather evidence for the RIAA?

Re:Irrefutable proof?

[Paradise Pete]

ow what will *really* be interesting is if the RIAA file any cases in Mass. that has "evidence" dated *after* Jan 2008.

Here ya go.

Turning Point...

[psychicsword]

Looks like the table has turned RIAA. You will not win this war.

No meaningful retribution

[sm62704]

Will they have to pay a fine? Maybe, but ten bucks says* it won't be the hundred thousand dollars the RIAA can collect for a single copyright violation. Will anybody go to jail? Maybe, but again ten bucks says* no way in hell.

Did someone say "rule of law"?

-mcgrew

*offer void where prohibited. I live in Illinois, and gambling is illegal here. Except in the casinos. And the state lottery. And horseracing tracks. And in the bars that have bribed the cops to look the other way.

Me? Cynical? Whatever gave you that idea?

Re:No meaningful retribution

[dkleinsc]

It's called contempt of court, and it can get you into all sorts of trouble. When you're in contempt, you're directly challenging the judge's authority, and the judge is not likely to be lenient when you've just pissed him/her off.

Of course, there's always the possibility of appealing to a more $upportive venue, but it's still a great way to end up in jail or losing a law license.

Re:No meaningful retribution

[scubamage]

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).

Re:No meaningful retribution

[NotBornYesterday]

This is a civil matter, not a criminal one.

Re:No meaningful retribution

[Anonymous Coward]

Like, guaranteed jailtime, and adding another 2 or 3 zeros to their fines (or more). I'll believe that when I see it.

Re:No meaningful retribution

[compro01]

unless i'm mistaken, the penalties for performing civil investigation without a license is similar.

Re:No meaningful retribution

[nomadic]

It's called contempt of court, and it can get you into all sorts of trouble.

They're not violating a court order though (or at least in this instance). It's a letter from the police.

Re:No meaningful retribution

[NotBornYesterday]

Egad! You may be right.

IANAL, but here is the Mass law re: licensing a firm in the business of doing investigation work.

"Whoever violates any provision of this section shall be punished by a fine of not less than two hundred nor more than one thousand dollars or by imprisonment for not more than one year, or by both such fine and imprisonment."

Here is the law about impersonating a police officer.

"... shall be punished by a fine of not more than four hundred dollars or by imprisonment for not more than one year."

The investigators might actually have it easier if they posed as officers. Hell, the fines imposed are a lot less than the RIAA would like to hit the John Does with for far slighter infractions. No indication if either qualifies as a felony, though.

Re:No meaningful retribution

[scubamage]

Some civil matters have criminal penalties. There's not many cases where the two overlap, but some acts are considered both criminal and civil (interestingly, most crimes have a civil and criminal side.. for instance murder is criminal, wrongful death is civil). This is one of the few cases where the two overlap.

Re:No meaningful retribution

[KiahZero]

A conviction that carries a maximum sentence >= 1 year is a felony.

Re:No meaningful retribution

[Anonymous Coward]

Will they have to pay a fine? Maybe, but ten bucks says* it won't be the hundred thousand dollars the RIAA can collect for a single copyright violation. Will anybody go to jail? Maybe, but again ten bucks says* no way in hell. I wonder whether some bright attorney will be able to make a case for applying a "proceeds of the crime" law to RIAA's hiring an unlicensed PI. (IANAL)

Not to worry

[elrous0]

If things get too hot, the RIAA will just pull some Congressmen out of their pocket and have them change whatever law they violated (with enough bribery maybe they can even get a retroactive change).

Irrefutable proof?

[Anonymous Coward]

I'm almost certainly missing something, and probably something obvious, but where eactlyis the "irrefutable proof" of MediaSentry violating the C&D?

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?

/CF

but i don't like madonna...

[Anonymous Coward]

...or Malawi, for that matter.

Another wrinkle......

[NewYorkCountryLawyer]

is that it appears that MediaSentry has been telling the State that it IS in compliance. Hmmmm.... could that be yet another crime?

Re:Another wrinkle......

[andphi]

This is slightly off-topic, Ray, but did you intend for the filename of your blog entry to be a double entrende or did BlogSpot just randomly generate it?

Re:Another wrinkle......

[NewYorkCountryLawyer]

:)
No blogger.com gets all the credit.
Me, I'm not that clever.

Re:Another wrinkle......

[CodeBuster]

If a material misrepresentation or omission is made during sworn testimony AND the fifth (5th) amendment privilege was not or could not (i.e. immunity) be invoked then isn't that perjury?

Re:Another wrinkle......

[moderatorrater]

Good thing for MediaSentry that nobody takes perjury seriously ;)

Re:Another wrinkle......

[NewYorkCountryLawyer]

I don't know, CodeBuster.

MediaSentry's criminal lawyers would probably know. Why don't you ask them?

Re:Another wrinkle......

[Anonymous Coward]

The fifth amendment recognizes RIGHTS not privileges. Rights cannot be taken away.

Re:Another wrinkle......

[CodeBuster]

Right, but if you wish to invoke your 5th amendment rights then you say, "I assert my fifth amendment privilege" in answer to the question that you do not wish to answer due to self incrimination (I believe that is the customary phrasing in court, but variations should be accepted as long as the everyone understands that you are invoking your rights under the fifth amendment). However, in some cases you can be compelled to testify and cannot take the fifth. For example, if you are granted total immunity from prosecution for anything arising out of your sworn testimony then you can be compelled to talk because you cannot incriminate yourself if you are immune from prosecution (embarrassment doesn't count, you have a right not to incriminate yourself but not a right to be free from potentially embarrassing testimony under immunity). IANAL, but I am reasonably certain that this is how it works.

Winning the war...

[KGIII]

It's great to see us, the people, actually winning the war. The industry has gone too far, long ago, and their tactics only speak of their desire to avoid change.

The reality is that stealing music is, in fact, wrong. It is a crime. However... Suits that attempt to claim vast amounts of damages are beyond idiotic, reaching to the realms of sophomoric, and don't prove anything other than the lack of initiative (or common sense) from the folks running the music industry.

Disclaimer: As an artist, starving artist really, I can say that I'd be grateful for people taking my music for free but I speak only for myself though the other artists have contractually agreed with the labels and thus with RIAA and are probably not in a position to change much.

Re:Winning the war...

[zappepcs]

Now, I'd say that your opinion should carry some weight around these parts. Clearly you understand that it's not about free vs. expensive music, it's about the bullying criminal tactics of those that don't want anyone to have anything for free, that don't want to change their business model to suit the new markets.

IMO, you are part of the new guard, the wave of artists that gets it. Soon, not just music/movie artists will find it difficult to make mega-bucks from their craft, so will athletes and others who are making way more than they should.

This is not necessarily because of the digital age in some cases, but recession means fewer ticket sales etc. The digital age will in turn cap their market worth as well. The further that the sports industry goes into the digital age, the more it will change the very nature of their business. My guess is that many such industries have reached their peak capital performance values and are stagnating or slowly in decline. Much revenue is based on advertising and THAT has drastically changed. The entertainment industries on the other side of the advertising will have to follow suit, if not now then sometime in the VERY near future.

They adapted to color television, cable tv, advertising changes... they will have to adapt or die. Right now the NFL et al don't seem to be doing much better than the **AA, but I'm hoping they are watching the news and paying VERY close attention to how well it has worked out for the **AA so far.

Re:Winning the war...

[KGIII]

My next question will be... (I know you're expecting it...) How much longer will it take before the industy "gets it?" (Just asking for your opinion, guess, or insightful comments.)

Re:Winning the war...

[zappepcs]

Well, the 'gets it' part will be something of an afterthought as most retail industries are (or should be) preparing to dig in and wait out the recession (it's official now... nearly) and the wrath it brings to the currently propped up consumerism in Westernized societies.

Energy is taking a huge hit, and the knock on from that will begin happening as current stocks dwindle and must be replaced. In 6 months you will see a lot more online activity though free shipping might become a once useful dream. As adverse as Americans are to exercise, 'let your fingers do the walking' may get repurposed from old ads to new uses on the Internet.

When the retail spaces begin to implode, less traffic in the mall means less traffic to all of the stores. The Internet is going to have a huge role to play in the recovery process of the US if not more countries. While it is too costly to go cruising around in your SUV, cruising the Internet will be acceptable, and during and after the recovery process, it will remain as a way to find what you want from who you want it. Most brick and mortar operations already have Internet presence and it will become more important. Tagging along with that will be the industries that are forced by market forces to follow suit and bolster their Internet presence. This will lead to new business models and expansion of current 'gets it' models.

For artists, this means that Internet exposure becomes the new wave of posting bills on the side of telephone polls. Giving away stuff to get people to attend the concerts will be more prevalent, and you will see this in other industries also as the now highly mobile society in North America becomes a bit more isolated from the hustle and bustle of in your face interactions. Already people are not spending as much as they did last year, they worry about what they are spending on. You will have to give them free stuff to get their attention as many of them will only be looking at free stuff. Just putting your name and logo in their face 40 times a day won't do it.

Remember the last recession? That started an entire marketing ploy industry of get 20% more for free and other tricky things that have morphed into ways of making you think you really get something for free that are still with us today.

As the recession bites harder, selling anything but groceries and gas will become more difficult and those industries that are not willing to, or are unable to bribe customers into their shops or onto their website will be the real losers. Remember that in tough times, people begin to spend only on things they 'need' rather than on things they want. The Internet is thought of as free (fixed cost) so there will be more time spent on it, further entrenching some Internet technologies and industries. That will be where those businesses that want to succeed will go now. To not go there is foolish IMO.

Think of it like this: It costs nothing to come shop online in our Second Life store, or on our website, and if you spend more than $50, we'll give you a 15% discount in any of our stores... good for 45 days from date of purchase.

You as an artist... start something viral: offer to give anyone with more than 20 of your songs on their MP3 player a voucher for a libation at the concert. Yeah, sounds like you're paying them to download your music, but it's at the concert that you make your money on shirts and concessions.

Right now, in the early running, anyone that is tagging up with IBM's efforts is probably going to vault over the recession into the new digital era with grace and style. Google-partners will also.

The current white-knight issue with Yahoo will end up being a very big issue in 6 months. The Internet as a market place is consolidating just as other industries have in the last decade. This is both good and problematic. Google is about to prove that anyone can have a web-based email account but only if you are a gmail user do you have real convenience and power.

Watch for the industries that follow along

Re:Winning the war...

[Fx.Dr]

How much longer will it take before the industry "gets it?"

Something tells me, short of a full blown overhaul - rebuild the entire organization from scratch and start anew - these tactics won't change. I see them getting much worse before they get any better. This is a group who, when confronted with new and popular technologies that could have netted them even greater fortunes (had they played their cards right), turned on their collective heel and ran off. Each and every time, this group spat on the ground and became much more insular.

This apple is rotten to the core.

Re:Winning the war...

[sm62704]

If you're wondering why your post was marked "flamebait" it's because there's no mod "-1, incorrect and false". Also because you are calling people thieves when, in fact, they are NOT thieves. Here is the difference between copyright infringement, stealing music, and piracy:

Stealing music: You walk into a record store and stick a CD under your shirt when nobody is looking. You then walk out without paying. If caught you will be charged with misdemeanor thieft and pay a few hundred dollars fine. The store has paid for the CD you stole and no longer has that CD.

Copyright Infringement: You walk into a store, pick up a CD and pay for it. You then rip the tracks to MP3 and place them in your shara folder in kazaa, allowing people to download them from your computer. The people downloading them are not breaking the law. Rather than a criminal matter, it is a civil matter and if caught you will be liable for thousands of dollars, despite the fact that the people downloading from you may discover that although they "kinda" like the track they hear on the radio they LOVE the one you provided, and go buy the CD.

Piracy: You go on the high seas, find a rich man's yacht, kill him and all his passengers and take his boat. It is a felony and if caught you will face prison or perhaps even the death penalty.

Flamebait: See the uncyclopedia entry

-mcgrew

Re:Winning the war...

[KGIII]

If this could be modded +6 I'd do it. Insightful and thought provoking. *pondering for a while*

Ummm ... proof is where?

[gstoddart]

Based on what appears to be irrefutable proof that MediaSentry has been violating that order

So, the link to TFA which us highlighted as "irrefutable proof" is the blogspot entry. It has a lot of links on it, and some of its links are other blogspot pages.

Can someone identify the section that is supposed to identify the "irrefutable proof" so we can look at it and try to decide for ourselves if it is as ironclad as the very optimistic summary sounds.

I don't consider a blogspot page to be irrefutable.

(Not that I don't think it would be cool if it was true, I just completely fail to see where in the links the conclusion of it being irrefutable is actually laid down.)

Cheers

Re:Ummm ... proof is where?

[LMacG]

Oh yay, domainism. New York Country Lawyer's "People vs The Recording Industry" blog has always been there. Suddenly today he's not reputable?

Re:Ummm ... proof is where?

[NewYorkCountryLawyer]

The "irrefutable proof" is in the Exhibits (Cease & desist order, printouts) (pdf). Boy are you a lazy reader.

Re:Ummm ... proof is where?

[gstoddart]

The "irrefutable proof" is in the Exhibits (Cease & desist order, printouts) [ilrweb.com] (pdf). Boy are you a lazy reader.

Ummm, yeah. A link to another site (the 5th link down the posting mind you) with an embedded PDF, in a blog posting which doesn't even contain the words "irrefutable proof" ... and I'm a lazy reader??

*laugh* You damned lawyers are just too used to the sheer volume created by your profession to assume us normal folks would ever find that. That's not exactly the most glaring nugget of information available from the link. :-P

It was on display in a dark cellar with no stairs in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying "Beware of The Leopard".

Cheers

Re:Ummm ... proof is where?

[NewYorkCountryLawyer]

Didn't mean to offend you. Was just attempting a little levity. As with most of my attempts at levity, it didn't work out.

Re:Ummm ... proof is where?

[gstoddart]

Oh yay, domainism. New York Country Lawyer's "People vs The Recording Industry" blog has always been there. Suddenly today he's not reputable?

I'm not saying he's not reputable. For the most part he seems informed and intelligent, and posts some interesting stuff.

I'm saying the connection between the summary here and the blog entry and the links to the supporting legal evidence doesn't make it obvious what the "irrefutable" proof is, where it might be, or, if in fact the blog or the supporting links ever actually implied "irrefutable proof" or if it was a Slashdot editor making claims not supported by any of the links.

Bad Slashdot editing and sensationalist writing aren't exactly uncommon around here.
might find it. A summary which seems to have nothing to do with the linked article isn't exactly a stretch.

Cheers

Re:Ummm ... proof is where?

[NewYorkCountryLawyer]

Seriously, when I first discovered Slashdot back in 2005.... I was stunned by what goes on here. There was some pretty interesting debating going on. My initial reaction was to think to myself: "who the heck are these people? i can tell they're not lawyers. but they seem kind of like lawyers, but a lot of them seem smarter than lawyers".

Then when I decided Slashdot was a keeper, and that I wanted to keep people here informed about what was happening, I made a deliberate and conscious decision to talk to them the same way I would talk to a fellow lawyer. And to give them access to the actual legal documents.

In the beginning I usually would submit links to the actual *pdf documents in addition to my blog posts. Then I found that some readers hated clicking on those *pdf links and getting their computers all overworked. So now I use the *pdf links themselves sparingly, and always (if I remember) with a warning that it's a *pdf file.

Re:Ummm ... proof is where?

[NewYorkCountryLawyer]

You are right that it would have been clearer if I linked separately to the *pdf -- the cease and desist order and the printouts -- which were the "irrefutable proof".

Re:Ummm ... proof is where?

[gnarlyhotep]

I don't consider a blogspot page to be irrefutable.

What is this, wikipedia, where we discriminate against certain domains and sources, calling them unreliable because they aren't harmonious with our own pov?

Re:Ummm ... proof is where?

[Bobb9000]

The "irrefutable proof" is in the Exhibits (Cease & desist order, printouts) (pdf). Boy are you a lazy reader.
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.

Re:Ummm ... proof is where?

[gnarlyhotep]

Could you explain how this constitutes irrefutable proof? To my semi-trained eye (worked several jobs in an assistant capacity without any formal training or certification) I am not seeing this as proof. I see a letter dated january '08 and several attached filings dated may '07. Something about ex post facto being applied makes this not proof of anything, to my mind. Then again, I'm not the lawyer.

Re:Ummm ... proof is where?

[Bobb9000]

BTW, I just noticed that that reply was from NYCL, so I retract my (semi-sarcastic) question of whether you've read the link. Point stands, though; I don't see how this constitutes a violation of a C&D.

Re:Ummm ... proof is where?

[gstoddart]

What is this, wikipedia, where we discriminate against certain domains and sources, calling them unreliable because they aren't harmonious with our own pov?

Ummm ... dude, chill and re-read my post.

1) I didn't say I refuse to accept a blog as being a reliable source because it's a blog. However, the linked post doesn't contain the words irrefutable, so I was trying to identify how the summary and the linked article meshed. The link seems tenuous at best.

2) Irrefutable and reliable don't mean the same thing. I was looking for any place where there was, in fact, any "irrefutable evidence" being proffered or suggested by the linked article, or any of its immediate links. Critical reasoning demands that I actually try to decide what is irrefutable on my own. Irrefutable means something very specific, and claiming something is irrefutable doesn't actually make it so, especially if I can't look at your evidence.

3) While he might post a lot of things on Slashdot, not all of us immediately recognize his URL, and even if I did, I'm *still* going to want to read it.

Just because I asked for a little clarification because the link the this so-called "irrefutable evidence" was seemingly a little tenuous, doesn't mean I'm rejecting the source out of hand because it doesn't conform to my world view. In fact, nothing could be further from the truth. I think the *AA are morons as much as everyone else here does. But, seriously, re-read the summary, the linked blog entry, and the linked articles, and what I posted. The evidence and any claim of "irrefutability" aren't exactly obvious or directly apparent.

Or, have I offended the orthodoxy by actually questioning one of the well known people here? I'd disagree with anyone claiming irrefutable proof and not showing it.

Cheers

Re:Ummm ... proof is where?

[NewYorkCountryLawyer]

Well in this instance you're more of a lawyer than I am. I made a big mistake, reading "2007" for "2008". Here is my corrected story and here is my retraction on Slashdot. Sorry about that.

Thing is, I have been advised by another source of a violation of the cease and desist order, but don't at this time have documentation in my possession.

Re:Ummm ... proof is where?

[gnarlyhotep]

Fair enough, we all make mistakes. Admitting culpability and retracting your error puts you far above many of the other lawyers I've met.

I support you and all the hard work you're doing in this arena, keep it up.

Can we get NYCL's post pointing out the error and retraction modded up please?

Re:Ummm ... proof is where?

[NewYorkCountryLawyer]

have I offended the orthodoxy by actually questioning one of the well known people here? I'd disagree with anyone claiming irrefutable proof and not showing it. Me too. There are no sacred cows in my book.

I go with what John Milton had to say about the robust questioning of "orthodoxy":

Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter? The day I become deferential to orthodoxy, take me out and shoot me.

Re:Ummm ... proof is where?

[NewYorkCountryLawyer]

Thanks, gnarly.

Sorry about that.

Re:Ummm ... proof is where?

[Anonymous Coward]

Let me pull out my law dictionary here for a minute... Now exactly what is meant by "irrefutable evidence"?

1). This evidence is absolutely impossible to deny or disprove.
2). When accepted at face value, this evidence is absolutely impossible to deny or disprove.
3). We want this evidence to look very compelling and it seems to be so, but please don't look too deep.
4). You might have to pay overtime in order to argue against this evidence.

When it comes to such issues, can you really say any evidence is irrefutable?

Re:Ummm ... proof is where?

[gstoddart]

Dude, I hope you don't think I'm picking a fight with you over this. I keep responding to the other people, and you keep responding to me. =)

You've been cool and level-headed through this -- it's just everyone else who feels the need to chime in and hasn't actually read/understood what I wrote. :-P

Cheers

Re:Ummm ... proof is where?

[burgundysizzle]

Ray, you're doing a great job. Your posts are always interesting and generate a lot of comments/discussion.

I've got a question for you though. Does the discussion actually generate much useful information for you (as a lawyer) that may lead you to re-evaluate strategies or directions in a case you're involved with?

Since you're still here I have to imagine that it's at least sometimes useful for getting technical details or just having many people thinking about the issues and coming up with some useful comments or suggestions.

Re:Ummm ... proof is where?

[NewYorkCountryLawyer]

Ray, you're doing a great job. Your posts are always interesting and generate a lot of comments/discussion. I've got a question for you though. Does the discussion actually generate much useful information for you (as a lawyer) that may lead you to re-evaluate strategies or directions in a case you're involved with? Since you're still here I have to imagine that it's at least sometimes useful for getting technical details or just having many people thinking about the issues and coming up with some useful comments or suggestions. It's always healthy for one's mind to engage in discussion with smart people and to be exposed to many different viewpoints. And I do learn things, not much about law, but a lot about technology. It's like talking things out with friends; it's a good thing.

But if you want to know if it's a really smart use of my time, from a time management perspective, probably not. But everyone needs to have some fun.

Re:Ummm ... proof is where?

[NewYorkCountryLawyer]

Dude, I hope you don't think I'm picking a fight with you over this. I keep responding to the other people, and you keep responding to me. =) You've been cool and level-headed through this -- it's just everyone else who feels the need to chime in and hasn't actually read/understood what I wrote. I did NOT think you were picking a fight with me at all. I just wanted to support you in what you were saying, because it reflects my outlook. I never want people to just swallow things I say just because they might think well of me, because I never just blindly accept anything anyone says, no matter who they are. For me, the truth is what it's all about. And the way to get at the truth is to be skeptical and employ critical thinking. Mindless following of 'leaders' is a good path to fascism.

When I was a kid, I used to go to a "schul" (an Orthodox Jewish synagogue). The Rabbi was this famous, legendary, very revered person, who carried himself very humbly. It was a small congregation, mostly a few old men who practically worshipped the ground the Rabbi walked on. When he was reciting from the Torah (scroll containing Old Testament), which is hard because when you're reading directly from the Torah scroll no vowels are supplied, he would sometimes make a slight mistake. I was shocked when the congregants -- who revered this man -- shouted out the correct pronunciation. At first it seemed so rude to me, until I realized this was what he WANTED them to do. What it meant was the word was more important than any one of us. He wanted us to just be sure to get it straight what was in the Torah. It didn't matter if the correct word came from the most educated and scholarly among us, or if it came from the least of us... what mattered was getting the word.

If I'm in a room, and everyone in the room agrees with me, I don't smile and say "ah how nice to have consensus"; if everyone agrees with me, I worry.

In fact what happened here today is a textbook illustration. My initial story had a whopping mistake -- I believe it was the first such mistake I've made since I've been posting here on Slashdot. Some astute readers caught it -- realizing that the order was dated January 2, 2008, and the documents which I was calling "irrefutable proof" that MediaSentry had violated the order represented screen captures from 2007. I'm glad they caught the mistake. (I'm also glad I was able to come up with the other documents showing that it has in fact been violating the order.).

So we're cool.

Re:Ummm ... proof is where?

[Anonymous Coward]

As much as I disagree with the RIAA's and MediaSentry's tactics, I have to admit. I'm a bit confused, and my gut is telling me that MediaSentry did not violate any C&D order, based on the paperwork in that link. The C&D letter is dated 2/2/2008, while all of the exhibits from MediaSentry were dated in January and February of 2007. The exhibits were filed with the court in May of 2007.
How is that irrefutable proof that they violated the C&D order? All I can say is that yes, they were possibly breaking the law; but no, they did not necessarily violate that C&D order based on the exhibits in the link.
IANAL. Perhaps one can explain whether or how a C&D order can be retroactive?

Re:Ummm ... proof is where?

[Anonymous Coward]

Well. Now that I loaded more comments, I see NYCL's retraction. I therefore retract the previous post. My bad.

Cool... and;

[jskline]

Cool and would this not be a thing where one could sing;

Slam-a-lan-a-ding-dong

on their lawyers for stooping to this level.

These people really believe that the law is for everyone else except them.

Where do you want your IP to be from?

[RingDev]

Give me 30 minutes and an SSH connection and I'll get you the latest Ricky Martin album downloaded to an IP apparently in Brazil.

True, the vast majority of infringers are not going to go to that kind of extreme or hassle, but downloading to another IP isn't that hard, especially if you have physical access to the machine.

-Rick

Re:Where do you want your IP to be from?

[j_166]

"Give me 30 minutes and an SSH connection and I'll get you the latest Ricky Martin album downloaded to an IP apparently in Brazil.

True, the vast majority of infringers are not going to go to that kind of extreme or hassle, but downloading to another IP isn't that hard, especially if you have physical access to the machine."

Hell, give me 15 minutes, Ricky Martin, and a length of rubber hose, and I'll get him out to your IP apparently in Brazil *personally*.

*SOMETIMES* they are...

[Joce640k]

IP addresses of smalltime users who connect dynamically via big ISPs or are behind NAT routers aren't too reliable.

IP addresses of corporations who buy blocks of addresses or entities who have machines inside server farms can be a very reliable form of identification.

I don't know the exact details of the case so I'm not judging. I'm just saying that reliability depends on circumstance.

Re:*SOMETIMES* they are...

[UncleTogie]

IP addresses of corporations who buy blocks of addresses or entities who have machines inside server farms can be a very reliable form of identification.

What if a machine inside those corporations or server farms is compromised?

Re:*SOMETIMES* they are...

[PoopyMerl]

The bottom line is IP addresses are not reliable as a geographic location. I'm in Seattle (maybe) and could have posted this post from dozens of different IP addresses around the planet (just like all of you).

If IP addresses were accurate to a location we would not need GPS. We'd just all make sure our phones/laptops/pcs have data plans/net access and our IP address would tell us exactly where we are, right?

As for when they are/are not accurate, It's the opposite in many cases....

External Public IP Addresses in large corporate WANs can be pointing back to thousands of computers within the organization (anywhere on the planet), or millions of PC's that are connected via VPN to this corporate WAN.

Public IP addresses for smalltime users who DHCP (cable, dsl, dial-up) could be identified if there's DHCP leases with their MAC address of their cable/dsl modem in the ISPs records (I'm sure RIAA investigators can "create" these records if the ISP admin forgot to turn on logging).

Not so brilliant

[arth1]

Or RIAA pays MediaSentry to take a fall, admitting that yes, IP addresses irrefutably shows that they did a wrong thing. And by the way, y'rhonors, now that IP addresses have been shown to be good evidence, there's these 5000 cases that RIAA wants you to look at...

That would be a big win for RIAA, only made possible because the opponents of RIAA tried to apply double standards, and, by doing so, killed their own defense.

Re:Not so brilliant

[Fulcrum of Evil]

IP address identifying a company who owns that block of IPs is a far different thing than using them to identify a user who doesn't even own a single address, but gets them from DHCP and slings them from behind a NAT firewall where they share the computer with everyone else in the house and, possibly, their neighbors if they don't know how to set up security.

Re:Not so brilliant

[Svartalf]

It doesn't win them anything.

In the case of the IP's they've been using, it doesn't connect anything other than an act to a machine- they must pin it to a person doing the deed to count.

In the case of this situation, unless Mediasentry can prove they got hacked into (heh... Do security ever again with THAT black mark...) with the express purpose of being framed, they are as guilty as a cat caught in a goldfish bowl. ANY use of those IP's, allocated to them, unless conclusively proven that nobody IN your org did it, the whole org is accountable- it's a distinction of a person versus a company.

Re:Not so brilliant

[Dhalka226]

Or RIAA pays MediaSentry to take a fall, admitting that yes, IP addresses irrefutably shows that they did a wrong thing.

It doesn't matter. Them admitting the crime and saying IPs irrefutably show something is... them admitting the crime and saying something. It is not in any way a finding of fact, presents no precedent (binding or otherwise) and it would almost certainly not be admitted in any other court case, much less listened to if they tried to slip it in someplace.

Here's the thing...

[JustNiz]

If an individual went around pretending to represent the law, then he would get into serious trouble right away.
Why aren't the police taking direct action against the RIAA's illegal operations instead of just sending them a cease-and-desist letter?

They violate a lot more than a C&D order.

[mmell]

*Ba-dum ching*

Delaying tactic??

[timias1]

So what is the prevent Media Sentry from applying for and receiving a PI license in all 50 states, or contract a licensed PI in they state? I would just to prevent this tactic from being used against me more than once.

Re:Delaying tactic??

[shentino]

Optimistically I'm hoping that their illegal conduct will *prevent* them from getting a license.

Re:Delaying tactic??

[deniable]

A simple profit/loss calculation. They can run a cheap, half arsed 'investigation' and rake in the dollars from their protection racket. If they have to actually work for results, then they stop making money.

What does it cost them to grab an IP, get a name and send a letter? Probably nothing. Once they have to use real investigators and lawyers, they have to spend real money and have a risk of losing.

Not unlikely, but provably untrue.

[Xenographic]

> No, you can not. It is fully possible, however unlikely, that MediaSentry upon being blocked from doing investigations in Mass., rented out a VPN line to a company that was, in fact, allowed to do so.

According to all the Court documents I've seen, MediaSentry itself conducts the investigations using their own custom programs. Because at no time have they alleged to use licensed investigators, I must presume that they have never done so. Their lawyers aren't stupid (tricky, yes, but not stupid) and if they could prove such a claim, they would be off the hook. Therefore, the ONLY reason they haven't made that claim is because they cannot.

While IANAL, more than a few legal opinions have drawn inferences using identical logic (they did not claim something because they could not), so I don't think I'm out on a limb, here. As such, I will not waiver from that opinion until and unless MediaSentry produces proof to the contrary in court. Anything less is an admission to the contrary on their part.

Wake up RIAA.

[pclminion]

Wake up, RIAA. You might be a big bad fish, but unless you have a freakin' military to back yourself up, you are still subject to the laws of the even bigger, badder fish, which is the state government. Go fuck yourself.

How about sanctions?

[Xenographic]

I guess the real question is what to do about sanctions? I don't know the law, but the RIAA claims that there's no exclusion for illegally obtained evidence in civil cases (though I don't think that removes them from liability for the illegal act) and that the law doesn't allow the Court to dismiss the case.

Personally, were I the judge (and I'd probably need to be a lawyer or at least go to law school first), I would draw an analogy from copyright misuse cases, strip them of their copyrights (because, after all, sanctions are evaluated by how effective a deterrent they are, NOT how 'fair' they are). After that, I'd let the other party file for summary judgment, because they no longer have a claim upon which relief may be granted after their copyrights are gone...

At least, that's MY logic. I only wish the Court would adopt something like that. I think it would be a VERY effective deterrent, too, given that copyrights are almost the only thing the RIAA seems to care about (other than money).

Re:How about sanctions?

[NewYorkCountryLawyer]

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.

Re:How about sanctions?

[mooingyak]

good faith evidentiary basis

This one wasn't so easy to find a definition for. My layman's understanding suggests that that means the party submitting the evidence holds an honest belief that the evidence will hold up (or at least stands a chance of holding up) during trial proceedings. Do I have it right? Or even close?

Location...

[msauve]

An IP address may not conclusively identify the ultimate location from which communications are originating, but it does identify a logical location though which the communication has passed. To identify a physical locaton might require subpoena over the ISP and/or telco providing the link.

In any case, showing two way communicatons to a particular IP is sufficient to show an association of some sort. In the case at hand, Mediasentry, owner of the IP block, can't deny they have something to do with the packets. As someone has pointed out, they _could_ be providing VPN access to a licensed MA PI. If that's the case, I'm sure they'll tell the court exactly that.

Unlike the copyright infringement cases at hand, where an individual and not an IP address must be identified to sue (a family or set of roommates is not a legal entity), Mediasentry, as a company, _can_ be associated with a range of IP addresses.

To paraphrase Ricky Ricardo: "Mediasentry, you got some 'splainin' to do."

I can hear it now

[kseise]

RIAA: Somebody set up us the bomb
The People: All your papers are belong to us. Make your time.

Money

[Anonymous Coward]

It is just that simple

Your analogy doesn't work

[Weaselmancer]

The problem with your analogy is that breaking and entering, growing pot, and kidnapping are all crimes provable through existing forensics.

An IP address may or may not be a person - it's still being decided. Therefore you're breaking into a home and discovering a crime - but somehow nobody knows who's home it is. That's where your analogy breaks down.

Re:Your analogy doesn't work

[Jerry Beasters]

But it IS provable through existing forensics, to differing degrees depending on the situation. Seriously, what planet do you life on?

Re:Your analogy doesn't work

[Jerry Beasters]

live on*

Re:Your analogy doesn't work

[immcintosh]

That's not really the problem with the analogy. The REAL problem with the analogy in his post is that the premise isn't even true. How much evidence gets thrown out on a regular basis because of failure to Mirandize the suspect, failure to get a search warrant, failure to show due cause for investigation? A whole goddamn lot. We do have rules in this country about the kind of evidence that can be admitted (much as the current treasonous administration would like to think otherwise).

Re:Your analogy doesn't work

[Weaselmancer]

to differing degrees

Currently, we're still innocent until proven guilty. Your statement here pretty much defines why an IP address is not the same thing as a person.

Let's say file sharing activity comes from a given IP address. Is it the person who bought the account? A friend's laptop computer? Your neighbor who's mooching off of your wifi? Is your PC part of a botnet?

And that's the problem with "differing degrees". Your IP address can be guilty as hell without you personally doing anything wrong.

Re:Your analogy doesn't work

[innerweb]

That is reassuring actually. I thought Bush had killed Miranda rights.

[/humor]

InnerWeb

expected RIAA response:

[swschrad]

"hey Vinny, just off 'em. dis "court" ting ain't for us."

Surprised?

[BanjoBob]

And this surprises who? The RIAA and MediaSentry have repeatedly shown that they don't care about the law. Their gaming of the legal system is proof of that.

The problem is that our stupid courts don't put a stop to this illegal behavior right away and then, they continue to abuse the system. After a while, it becomes allowable behavior.

If our legal system would put a stop to this, it would stop. Since they continue to allow it, this behavior will also continue.

This is wonderful

[PingXao]

I applaud the people and universities who are pushing back against the MAFIAA, er.... uh, I mean the RIAA. They are winning tactical victories only, however, on the state level. What's not being won are strategic victories. Those would come in the form of big chunks of the population starting to realize that copyright abuse by the big money players is harmful. They would come in the form of Congress actually passing reasonable copyright reform, not the outright bribery they engage in today. Let's face it, when the RIAA starts losing enough in the courts they will shift tactics, and those will almost certainly involve paying off congress to pass draconian new criminal penalties and to lower the burden of proof.

I'm happy when I read stories like this but it's important to remember cases where people push back are wins in little battles. In the long run, most of the public doesn't care about their rights, and the war will be lost. There's already a conspiracy underway to de-legitimize the whole concept of Fair Use. Not a theory, either. A fact.

Sweeet

[EdIII]

on the ground that the RIAA's 'evidence' was procured by criminal behavior.

BEST .... IRONY .... EVER ....

OT - your sig

[sm62704]

What made you pick that particular quote for your sig?

Correction on page

[LordEd]

The evidence page showed timestamp prior to Jan 2, not after. Looks like the page has posted a correction:

Correction. The motion in London-Sire v. Doe 1 (formerly Arista v. Does 1-21) did not show violation of the cease and desist order, it showed prior violation of the Massachusetts licensing statute. I made an error in reading the printouts. However, I did learn from another source of a violation of the cease and desist order by MediaSentry, but do not at present have documentation of that breach. Sorry for the mistake. -R.B.]

CORRECTION .... I MADE A MISTAKE....

[NewYorkCountryLawyer]

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.

Re:CORRECTION .... I MADE A MISTAKE....

[Bobb9000]

Thanks, but I wasn't the first - I saw some others wondering about it before I got all the way through the pdfs. Sorry for the snarkiness in my comment, though - I really respect what you do, and that you've been so willing to help people here understand the law. I'm a law student myself, probably going into the patent field, so law & technology stories are always at the top of my interest list.

Re:CORRECTION .... I MADE A MISTAKE....

[Anonymous Coward]

Typical shoddy work from a guy that has won exactly ZERO cases in this area. BROVO, Beakerman, BROVO.

Re:CORRECTION .... I MADE A MISTAKE....

[shentino]

A lawyer mans up enough to admit a mistake and you bash him for incompetence?

I rather approve of his integrity here. In fact, this is exactly the sort of thing that the RIAA's lawyers need to start practicing.

I am offended that you would troll and flamebait like this...and I don't even know the guy.

Re:CORRECTION .... I MADE A MISTAKE....

[NewYorkCountryLawyer]

Thanks, shentino. My hunch is that that was an RIAA troll.

Re:CORRECTION .... I MADE A MISTAKE....

[shentino]

On behalf of /., nothing personal.

The RIAA is so high up on our hit list that unfortunately some collateral damage is inevitable :/.

How is any of this 'irrefutable proof'?

[Swift Kick]

I don't understand how NewYorkCountryLawyer claims that the Exhibits (Cease & desist order, printouts) constitute 'irrefutable proof'.

Assuming he's referring to the lists of recordings found on that Boston U. IP address, I don't think Mediasentry would have to 'be' in Massachusetts to get those lists.
Whoever was making those files available was 'advertising' their availability to the whole world when he/she is on a P2P network, so Mediasentry
could conceivably never step foot in Massachusetts to obtain this data.

I'm in the West Coast, but I could easily get a listing for MP3 files available on publicly-accessible webservers on Boston U.'s network if I spent 10 minutes looking for them, and I wouldn't have to be a 'private investigator' in MA to get them After all, these 'precious snowflakes' are advertising that they have this stuff available to everyone.

Re:How is any of this 'irrefutable proof'?

[DynaSoar]

I'm in the West Coast, but I could easily get a listing for MP3 files available on publicly-accessible webservers on Boston U.'s network if I spent 10 minutes looking for them, and I wouldn't have to be a 'private investigator' in MA to get them After all, these 'precious snowflakes' are advertising that they have this stuff available to everyone. Finding such files is not the same as doing so while acting as an investigator, which is what MediaSentry is specifically claimed to be by their RIAA handlers. Attempting to determine the 'owner' of the available files is beyond simply finding the files, and is what MediaSentry is trying to do in their stated role of investigator. Looking for the files after being told not to by the law is a violation of that law, regardless of status of 'investigator' or not.

The uncannily similar ridiculous behavior of RIAA and MediaSentry makes me think that the latter was not hired by the former, but rather formed by and spun off from the former for its own purposes and according to its own operating principles. If so, and that comes out, RIAA could not only be the primary defendant, but also guilty of perjury for claiming otherwise. That'd tear a hole in every case in which MediaSentry generated data was used.

Too Little, But Not Too Late

[DynaSoar]

"... the Boston University students ... 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."

That's all? Just vacate them? If they are in fact violating it, file charges and have the bastards arrested and tried. The RIAA would get sucked in by an "or caused to" clause in the law and/or a suit filed against them by MediaSentry in self-protection. Such a violation would place their balls firmly in the hands of the 'defendants'. They should squeeze.

Then, "nuke 'em from orbit. It's the only way to be sure."

Documentation of violation of C&D order now in

[NewYorkCountryLawyer]

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.

Nothing Stops the RIAA

[Nom du Keyboard]

Nothing else has stopped the RIAA, and this won't either. They're on a Mission from God to destroy all pirates, and they'll argue (and rationalize to themselves) that everything has to be fair in the battle because they're being killed off every second by filesharing. Put 'em all in prison for life + 999 years and they may get a clue.

Not sure you made a mistake

[mzungu]

IANAR (reader), but page 18 seems to indicate a date of 2008-02-04 18:10:28 EST.

If the c&d was in january, then there's your proof right there.

Or did I miss something obvious?

Re:Not sure you made a mistake

[NewYorkCountryLawyer]

You're talking about the second document I posted, which does show violations of the cease & desist order. The first one represented screen captures prior to the cease & desist order.

Not quite the full facts

[A nonymous Coward]

I believe they are combining the dynamic IP address with IS records of which customer it was assigned to. So yes, they can locate the specific DSL box or firewall or whatever DHCP client asked for the address. However, a family computer is not necessarily only used by just one person. Even if the owner lives alone, there may have been friends over.

On the other hand, an office ought to be better controlled, especially something as sensitive as private security investigators. Their only defense would be that they do not control access to their computers, in which case their evidence on those computers ought to be thrown out. Evidence is supposed to be under control at all times. If they don't have control, it could have been tampered with. Either they have shoddy control which invalidates all their other evidence used to help the MAFIAA, or they have excellent control and only their private investigators used that computer for illegal activity.

Why do states interefere with free enterprise?

[Anonymous Coward]

The problem is more fundamental. Why should they need a licence to operate? The right to free enterprise is established in the US Constitution, which as a federal document, therefore it tramples state's right. Interstate commercial activity is a clearly established solely federal domain of authority.

If the state tries to ban the investigators via permit machinations, RIAA should clearly contact the FBI, because such behaviour is fundamentally the same as southern states' sabotage of negro civil right realted killings were in the 1960's.

Compromised by who? By Mediasentry?

[Joce640k]

Are you suggesting that Mediasentry is compromising other people's machines to do their thing...?

Re:Compromised by who? By Mediasentry?

[NewYorkCountryLawyer]

Are you suggesting that Mediasentry is compromising other people's machines to do their thing...? I think the Attorney General for the State of Oregon has made . As have a number of private litigants.

Re:Compromised by who? By Mediasentry?

[NewYorkCountryLawyer]

Are you suggesting that Mediasentry is compromising other people's machines to do their thing...? I think the Attorney General for the State of Oregon has made that suggestion. As have a number of private litigants.

As quotes go,it's not exactly obscure...

[Joce640k]

I'm old enough, and English enough, to have sat up listening to the original HHGTTG broadcasts on the BBC.

Re:As quotes go,it's not exactly obscure...

[sm62704]

Well yes, I'd gathered that, but out of the gazillion quotes why that particular one?