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University of Michigan Student Wants SafeNet Prosecuted
NewYorkCountryLawyer writes "An anonymous University of Michigan student, targeted by the RIAA as a 'John Doe,' is asking for the RIAA's investigator, SafeNet (formerly MediaSentry), to be prosecuted criminally for a pattern of felonies in Michigan. Known to Michigan's Department of Labor and Economic Growth — the agency regulating private investigators in that state — only as 'Case Number 162983070,' the student has pointed out that the law has been clear in Michigan for years that computer forensics activities of the type practiced by Safenet require an investigator's license. This follows the submissions by other 'John Does' establishing that SafeNet's changing and inconsistent excuses fail to justify its conduct, and that Michigan's legislature and governor have backed the agency's position that an investigator's license was required."
SafeNet/MediaSentry defended their actions by claiming their company simply "records public information available to millions of users. If private investigator licenses were required to do what MediaSentry does, every user on Limewire and other illegal p2p networks would be required to have a license. Indeed, every search engine and Internet user would be required to have a private investigator license if MediaSentry needs one."
What a bunch of cocks. Don't they understand that it's the combination of collecting the information and presenting it in court that is the issue here?
How we know is more important than what we know.
Our company runs LegalTorrents.com - completely legal P2P distribution as a service to Content Creators.
Anyone who falsely claims the P2P = illegal, you can simply send them a link to our site as a counter example. Oh yeah, and Jamendo, and BitTorrent, and many, many others.
If private investigator licenses were required to do what MediaSentry does, every user on Limewire and other illegal p2p networks would be required to have a license. Indeed, every search engine and Internet user would be required to have a private investigator license if MediaSentry needs one.
First, let me say- Uhh... no.
Here's the requirements, and some of them are quite interesting. Like:
A person, firm, partnership, company, limited liability company, or corporation shall not engage in the business of furnishing or supplying, for hire and reward, information as to the personal character of any person or firm, or as to the character or kind of business and occupation of any person, firm, partnership, company, limited liability company, or corporation and shall not own, conduct, or maintain a bureau or agency for the purposes described in this subsection except as to the financial rating of persons, firms, partnerships, companies, limited liability companies, or corporations without having first obtained a license from the department.
Hmm....
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Let's consider an alternate story: hardscrabble open-source advocate uncovers evidence that Microsoft misappropriated his GPL'd code, files lawsuit
This is a fallacious comparison of the two situations.
First and foremost, the developer himself found the evidence.
Second, he retains a lawyer and sues the company specifically, rather than a john doe in order to gain his identity and go on a fishing expedition.
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Two questions, Mr. Beckerman: First, is there some court proceeding in progress which is likely to require one of the crooks to testify under oath?
There are many. In UMG v. Lindor we had noticed MediaSentry's deposition, and were awaiting rulings on our document subpoena from the Magistrate Judge, when the RIAA made a motion to drop their case. However, the case is pending at this time. There are plenty of other cases in which MediaSentry's deposition can and should be taken. E.g., Andersen v. Atlantic, Atlantic v. Boyer, Elektra v. Torres, Arista v. Does 1-27, Arista v. Does 1-17, LaFace v. Does 1-5, to name a few.
Second, assuming they do take the fifth, and the "evidence" upon which all of the cases are based is wiped out, won't SafeNet just hire some people with investigator's licenses to continue the farce? Or is there some reason that a legitimate, licensed investigator would refuse to participate?
I don't know.
Ray Beckerman +5 Insightful
Scott Moulton gave an excellent talk about Computer Forensics professionals needing Private Investigator (PI) licenses at Defcon 16. Basically the Private Investigator lobby has been pressing state legislatures to classify computer forensics as PI work. This does little to guarantee that the public is protected against poor/shoddy computer forensic work, and it does everything to increase the number of dues-paying members to the PI licensing body.
The law may be making the online community happen, in this instance, where it is causing the RIAA grief. But on the whole, laws like the Michigan law are not good for the computer forensic and computer security community.
Scott Moulton's talk at Defcon 16: http://defcon.org/html/defcon-16/dc-16-speakers.html#Moulton
Pretend I said something meaningful or insightful here.
The law is pretty clear here, it's a bad argument on SafeNet's part.
Section 338.822
(b) "Computer forensics" means the collection, investigation, analysis, and scientific examination of data held on, or retrieved from, computers, computer networks, computer storage media, electronic devices, electronic storage media, or electronic networks, or any combination thereof.
(e) "Investigation business" means a business that, for a fee, reward, or other consideration, engages in business or accepts employment to furnish, or subcontracts or agrees to make, or makes an investigation for the purpose of obtaining information with reference to any of the following:
(i) Crimes or wrongs done or threatened against...or any other person or legal entity.
(viii) Computer forensics to be used as evidence before a court, board, officer, or investigating committee.
Section 338.823
(1) A person, firm, partnership, company, limited liability company, or corporation shall not engage in the business of professional investigator for hire, fee, or reward,
It basically all comes down to the fee requirement and evidence to be used in front of a court.
To most people, theft is taking what you didn't pay for.
You're right about "to most people"... However, that just means that those most people need to be educated...
From good ol' wikipedia:
In English law, theft was codified into a statutory offence in the Theft Act 1968 which defines it as:
"A person is guilty of theft, if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it". (Section 1)
Hence, permanently depriving the "other" of the item being stolen is a key component in defining theft.
This move seems more like a maneuver against the RIAA then a chance to catch Safenet doing something illegal. The impression I received from reading the article you wrote concerning the RIAA's legal practices was that Safenet only made it to the stand a handful of times at most, and each time made no attempt to insist their methods met the relevant reliability standards.
With that in mind, it seems like the RIAA lawyers are the ones presenting Safenet as legitimate investigators, and then dismissing the case once in possession of the desired name. Putting Safenet under the spotlight puts their methods directly in question, and offers the chance to expose a part of the RIAA's own methodology that seems to much harder to achieve when directly dealing with the RIAA's suits and actions.
All the same, criminal charges against Safenet for what they are doing specifically with technology and information might have unintended, negative consequences. Is the push to prosecute Safenet being put specifically into terms of it's actions as agent in the RIAA cases?
Downloading a file, verifying it's content, recording the IP address from which it came hardly seems illegal. All normal things that legitimate software might do. Safenet hands that information over to the RIAA, and the RIAA of course misuses that.
Without being clear on the Michigan law, is it the last step, the releasing of that information to a client with the knowledge that it's going to be used in litigation, what specifically defines it as computer forensics and requires an investigator's license?
Under the common law, it is only possible to sue for defamation of an individual or corporation, not an object or generic group. This is why it is perfectly safe for you to say things like: "Lawyers are all liars and thieves." Saying that about a particular lawyer would be defamatory, if false, but you cannot be sued for the same statement about lawyers as a group. It is only possible to sue for defamation of a generic group if a state has made specific provision for doing so. The only exception that I know of are the food defamation laws that the agricultural industry has persuaded about a dozen states to pass. These which create civil liability for claiming that a perishable food product or commodity is unsafe for human consumption.
IANAL, but that all information gathered by a third party that does not have a private investigator license (or court appointed warrant, whatever) is inadmissible as far as I know. You can gather all the information you want, but whether or not you can use it against someone in a court of law would require gathering that evidence through proper channels, I'd think.
However, holding onto that gathered information and using it in other ways would fall under an entirely different law. But rendering that information inadmissible in court would force the RIAA's corporate spies to follow the law or be essentially useless except for building a case for just cause for a warrant.
File sharing is legal everywhere. Copyright infringement is not. Please don't muddy the waters further.
"So long and thanks for all the fish."
MediaSentry absolutely doesn't want to be an expert witness. As an expert witness they & their methods are subject to cross examination. They've been dancing this dance since day 1. They aren't private investigators, because then they could be regulated, have oversight, etc. They aren't expert witnesses because then their methodologies would have to be displayed & would be eligible for review. They want to play both roles without having to be subject to the rules governing either side.
Thank you, tinkerghost, for reminding people of that. They have argued strenuously in UMG v. Lindor that they are not expert witnesses, in order to avoid having to provide expert witness disclosure. And in the 3 pending Michigan investigations, they have argued,equally strenuously, that the are expert witnesses, in order to avoid having to comply with the licensing statute for investigators.
So what are they really?
Professional liars.
Is any license required for that? No, just the willingness to go to jail when the long arm of the law finally catches up to you.
Ray Beckerman +5 Insightful
You are implying (well, stating outright) the RIAA cases are illogical, and I disagree.
1. Yes I stated. I never imply.
2. Yes I stated they are illogical. I was not speaking as a businessman, but as a lawyer. They are illogical because they are not based on sound legal theory or on evidence that the defendant infringed any of plaintiffs' rights. I don't see anything in your post which disputes that.
3. As to whether the suits are logical from a business perspective, I will leave that to the marketplace, which does not seem to think so.
Ray Beckerman +5 Insightful