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

[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

[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]

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

[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

[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

[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

[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

[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

[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

[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.

Laws

[whisper_jeff]

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

Yours truly,
MegaCorp America (tm)

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

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

[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.

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!

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.

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

[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).

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).

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?

*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.

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.

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?

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.

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:Ummm ... proof is where?

[NewYorkCountryLawyer]

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

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.

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: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.

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.

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.

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: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.