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

[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 . . .

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: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.

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?

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.

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.

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.