Slashdot Mirror
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."
On one side we have a massive industry with an unlimited supply of lawyers (and public officials) and on the other side we have somebody who's obviously right.
Let's see which way this one swings.
[Although the phrase "Michigan's legislature and governor have backed the agency's position that an investigator's license was required" does make me cautiously optimistic - Let's get this one right, Michigan!]
He's getting rather old, but he's a good mouse.
So long as critical thinking courses are conspicuously absent from public school curricula, people will not understand the concept of logical fallacy.
I recently had the "file-sharing is theft" discussion with a manager i'm on otherwise good terms with, and the guy doesn't understand how fallacious it is to compare this activity to shoplifting.
Trying to convey small but consequential logical differences to the common man is like trying to explain to a creationist why science is not diametrically opposed to their beliefs.
If they worked in the industry it's even harder. The idea that the crusade against file-sharing can conflict with the international declaration of human rights simply doesn't register with them.
VLC FOR MAC IS DYING! IF YOU DEVELOP, PLEASE SAVE IT!!
I hate this notion where ya can't do squat without some license from the government. So on purely libertarian grounds I'm forced to take SafeNet's side. Yes there are some legitimate chain of evidence issues involved, as other posters note, but basic liberties have to trump that. Evidence collected by a licensed & bonded investigator should be given extra consideration in court perhaps but ANYBODY should be able to collect evidence of criminal activity from the public Internet and should be able to testify in a court of law.
Now with that said they ARE a bunch of clueless wankers from all appearances. But on the other hand with the bulk of the tech press so obviously biased against them I'd be listening extra careful so as to form a more informed opinion if I were an actual juror on a case involving them.
Democrat delenda est
Let's consider an alternate story: hardscrabble open-source advocate uncovers evidence that Microsoft misappropriated his GPL'd code, files lawsuit. Microsoft convinces the State of Michigan to prosecute him for failure to have a private investigator license. It's not hard to imagine which side Slashdot would take, no?
Come on! We're all supposed to be good libertarians here. There's no good reason for the government to require a *license* in order for somebody to gather non-private information. We shouldn't cheer when the government abuses a bad law - even if it's being used against a party we personally disagree with.
The only similarity is that at least one party is enriched in both cases.
By that standard, winning a contest and stealing the prize are "pretty close".
Theft: A takes an item from B without B's consent. B has been damaged by the cost to replace the item, A has been enriched
File-sharing of copyrighted material: A creates a pattern of bits the same as one B has. A has been enriched. B has been neither damaged nor enriched. Third party C claims to have been damaged to the tune of $100,000.
Most of the information investigators collect comes from 'publicly available sources'. Safenet's argument is totally meaningless; there is no exemption for evidence gathered from 'publicly available sources'. They're just blowing smoke.
Ray Beckerman +5 Insightful
The RIAA has shown that they are adamantly determined to see this particular gambit through to the bitter end
I have not seen that kind of resolve.
... short of the execs responsible for it going to jail (which I doubt will happen)
I would not be surprised to see criminal culpability for aiding and abetting MediaSentry's felonies and misdemeanors.
... they'll keep pushing forward, just slightly altering their tactics as each old tactic fails them
If your SOLE witness has to take the Fifth, your cases are gone.
I would love to be proven wrong and, gawd knows you know more about the law and its processes than I do, but I just put more faith in the RIAA's pig-headed-ness than their common sense and willingness to play by the rules.
I wasn't suggesting that they have a shred of either common sense or willingness to play by the rules. I believe they will be shut down by (a) their shareholders, or (b) the judges.
Ray Beckerman +5 Insightful
Not entirely true. The PI licenses are there for a reason, the protection of public privacy.
Yes state legislatures may not recognize that to be a PI requires many skills computer forensics experts may not have, but also vice versa. PI's are trained in a multitude of areas including privacy laws.
It is also important to have experts who will be testifying in court to have a clean, ethical background. This is one of the biggest reasons PI licenses exist. Yes many squeak through (as they do in the field of law as well) but overall much more good than bad is done by requiring a clean background and a solid ethics code.
These cases are about copyright law, not logic. You cannot get the answer to legal questions by engaging in logic. But if you are going to do so, you should at least get your assumptions right before you start trying to develop formulas.
There are 6 "rights" included in a "copyright". They are enumerated in 17 USC 106. You will not find any mention there of 'sharing', and the 'distributing' mentioned there is narrowly defined.
There is no prohibition against 'sharing' copyrighted material, and there are hundreds of ways of 'sharing' copyrighted materials which do not infringe a copyright owner's rights.
So if you want to play this game, my advice is to develop some premises that are real, rather than fallacious, to start out with.
Ray Beckerman +5 Insightful
The reason that PIs are licensed is because they snoop on people's lives. So the public has a real interest in making sure that they're not only reasonably trustworthy, but that they have the means and information to punish them if they do something wrong.
The PI licenses therefore encourage accountability by making sure that they can't just lie and get away with it. If they lie, their license can be revoked. If they lie, the court knows who they are and where they live and they can drag them before a judge if they do something wrong.
So while I sympathize with the notion that we shouldn't need the government's permission to do every little thing, I do think that there are cases where people hold too much power and too little accountability. And in those cases, the public has a legitimate reason to demand that measures are taken to make sure that these people have to answer to someone if they abuse their power.
B and C are the same parties, but nice try attempting to portray the **AA as "mean and bad" without appearing to demean the beloved musicians.
Some musicians sell the rights to their creations to others. Some choose to market them themselves. It does not matter — for this argument — the B and C in your example are one and the same, and B is damaged — at least some of the people, who got their music for free, would've paid for it.
Giving away and using copies of somebody else's works without permission is much closer to theft, than, for example, the right to sell pornography is to free speech. Stop blaming other people's common sense, when they disagree with you — American schools aren't that bad...
In Soviet Washington the swamp drains you.
I've mentioned it elsewhere in this thread, but the ubiquitous use of the word "theft" in the context of p2p file-sharing is a slur, not unlike the use of the "n word" in reference to african americans.
It is used to denigrate the practice and practicers of p2p file-sharing (more often than not no matter what the material shared is).
Is there not some basis for a suit in that?
I would imagine there must be a legal reason why more partisan news sources don't use the term "towel head" in reference to people of arabic descent or "kike" in reference to people of jewish descent.
VLC FOR MAC IS DYING! IF YOU DEVELOP, PLEASE SAVE IT!!
One's livelihood is just as valuable, if not more so, than one's property, no? If you work for the benefit of others, it's fair to expect your day's wage.
I worked myself to death on a double major in econ and cs for the betterment of whichever firm takes me. I guess they're all stealing from me since I don't have a job yet.
We quite simply do not have a good, economically sound way to pay the "creative" and "knowledge workers."
yes there is. TPB, kazaa, and many other p2p projects do well enough to sustain themselves AND have full time staff. If they can do it free, anyone can.
Further, that's just copy distribution, there's also concert/theater experience, merchandising, etc. Want a living? Work for it. Nobody else is entitled to keep receiving a paycheck for work they did 10 years ago.
It's not a "slur" against the youth of the nation, it's a very cold and descriptive legal term: music is copyrighted, and the violation thereof is "infringement." The denotations are quite clear, whereas your n-word is all about connotations.
copyright infringement (or simply infringement) is not the term used. "Theft" is the term being used, and it is all about connotations.
And, we do generally call people on anti-depressants "druggies"
The stretched truth has now snapped, entering the realm of, at best, embellishment.
VLC FOR MAC IS DYING! IF YOU DEVELOP, PLEASE SAVE IT!!
You are confusing the "John Doe" cases with the "named defendant" cases. In the "named defendant" cases the MediaSentry investigator is the RIAA's sole fact witness.
It seems more likely I've misunderstood the process as outlined. Without the evidence gathered by MediaSentry's investigator, how does the RIAA obtain the ex parte ruling to proceed to the "Named Defendent" phase? A judge cannot order an ISP to turn over a specific account name without anything to identify the specific account. Isn't there a standard for evidence to obtain such a ruling, implying a presentation of the investigator as legitimate?
Downloading a file, verifying it's content, recording the IP address from which it came hardly seems illegal.
1. You might feel differently if someone accessed your hard drive under false pretenses.
The important thing is to separate false pretenses. I download files, use them, and have access to the IP addresses they came from every day. Those files are hosted with the intent to be served to clients, just as P2P clients do in the process of sharing the cost of bandwidth by acting both in the roles of client and server.
It is software. You haven't persuaded me it's "legitimate".
Hopefully, it won't be up to Safenet to argue in court that the nature behind P2P software is legitimate. Unless they are going beyond accessing shared files on a visible network, I don't see how it's the software that should be called into question.
It is looking like the law in Michigan hinges on receiving a fee with the intention for the gathered information to be used in court, so let's hope any prosecutors are informed enough to distinguish what is and what isn't part of the crime.
Downloading a file, verifying it's content, recording the IP address from which it came hardly seems illegal.
1. You might feel differently if someone accessed your hard drive under false pretenses. 2. Doing it without an investigator's license is certainly illegal. 3. It might even be illegal with an investigator's license, under the Computer Fraud and Abuse Act.
That may be arguable, of course, in the fact that you are deliberately sharing your drive with the intent of having "anonymous" people access your data.
Going to your local Barnes&Noble bookstore, browsing a book while there, buying it and taking it home is not illegal. However, if B&N has a printing/binding operation in the back room, and is making copies of said book to sell, without the authorization of (and presumably without paying royalties to) the publisher/author, that is illegal. Its also illegal for you to run the printing/binding operation in your home and do the same.
On the flip side of that, it is not illegal to run library and loan the originals out, nor is it illegal to "use" excerpts of the copyrighted material (if you give credit to the author) in other works (ie, analysis of their work, examples of the art, etc).
The key point is, of course, they are doing paid investigative work without a license. The easy way around this is for the RIAA to publicly offer a "reward" to anyone reporting illegal file sharing, rather than contracting Safenet specifically - which could potentially have 1000's of "average joe's" reporting people (whistleblowers) to the RIAA for a reward. The problem with that is, of course, the average person has no easy way to associate that information with an actual *person* (ie, translate IP -> name, address, etc). Oh yeah, and it could remove a lot of Safenet's income!
I'm not a lawyer in the US, this is not legal advice, you are a lawyer in the US, it's your call, I'm just shooting my mouth off here like half of Slashdot, but:
For one thing, all the things MediaSentry/SafeNet is logging and presenting in court as factual evidence can be spoofed by a third party or faked. It's hearsay that another machine on the internet has told them, and based on the research that I have seen, they are not actually downloading any material pieces of the files, but simply doing hash searches.
That leaves two distinct questions: The possibility of hash collisions (especially for MD5 and SHA1, as used in Gnutella and Bittorrent - it's unlikely but in practice can actually be demonstrated to be a possibility and is in point of fact guaranteed not to be unique, as they claim; particularly so for, say, the ol' KaZaA network, and eDonkey2000's MD4), and the insecurity of the networks against various attacks and injection techniques and MediaSentry/SafeNet's complete lack of security checks against this.
Were the court aware of the true nature of the networks concerned, and how easily an innocent third-party IP address might be implicated in file-sharing in MediaSentry/SafeNet's tools' view without their actual participation in any way, they might be inclined to chuck the evidence out as too unreliable, or require something more heavyweight to back it up. (As you know, they have nothing else.)
Would any private investigator would be required to act as an expert witness agent of the court (and thus to report in their depositions a factual, balanced, accurate opinion based on the available evidence, even if it works to their client's own detriment, who would then simply have to not present the expert witness evidence in court - that's what usually happens in the UK, but I understand US law may differ on this), or simply as an agent of their clients? If the former then this is likely the reason the RIAA is dropping the suits when the question of evidential disclosure comes along; because the evidence on which they are relying to identify IP addresses involved in copyright infringement is - according to my own research, and other recent research (see http://dmca.cs.washington.edu/uwcse_dmca_tr.pdf ) - blindly believing information provided by a third party who may or may not be spoofing with no real attempts to verify it.
Furthermore, the RIAA have themselves hired other agents to perform that exact kind of spoofing as well as others, in order to disrupt torrents, and the Gnutella (Limewire) network. The two parties - the spoofers and the investigators - are NOT talking to each other, so it is in this P2P researcher's opinion highly likely that given the volume of IP addresses targeted for warnings and lawsuits, at least some of the IP addresses targeted are highly likely to be falsely-injected ones.
Unfortunately, you won't get me into a US court to testify on this. This, too, is hearsay. :)
Fortunately, you could have a word with those U-Wash researchers above who might well be capable of submitting written evidence acting as witnesses given that there are, to my knowledge, no licenced expert witnesses with the required internal knowledge of the P2P networks to make an adequate determination of the validity of the evidence. (And yes, of course, that includes SafeNet. Hah!)
Well, anybody who has a practical interest in this question (or thinks they might) really ought to hire a lawyer.
That said, I'll proceed to the usual bloviation.
I believe what you're grasping for is something that is called "the fruit of the poisoned tree." Evidence gained by illegal means is usually inadmissible. In this case, it is not the actions in question (scanning P2P networks) that is illegal. It is doing so in the capacity of a professional private investigator without a license to act in that capacity.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
What's funny is that an artist's work is his property, but my work is my boss' property.
Seriously, the elephant in the room here is that copyright as it exists now is grossly unfair, with copyright terms expanding 50 years or so beyond the life of the copyright holder. Why do you need to be paid for your artistic creation after you're dead? There is a fundamental injustice at the heart of copyright law in America. This matters, you know. It isn't enough to say that unjust laws are laws, and must be obeyed anyway. The system has to have mechanisms to weed out bad laws.
File sharing has one rather important distinction from theft. Namely, the punishments for theft as defined in the law are generally just, while punishment for file sharing as a subset of copyright infringement is unjust (as are the laws governing copyright as they currently stand). Throwing the two terms together as synonyms glosses over this critical issue.
Rule of Slashdot #0: You and people like you are not representative of the larger population. - A.C.
Yes, I can see this already:
It is a bone-headed law, and it ought to be stricken out ASAP...
I'm not, but that guy, who took spammers to courts, certainly did. The simple activity should not require a license — and this entire forum would've been in agreement, had it not been related to music-sharing. Slashdot would've been outraged, if his lawsuit was turned down, because he was not licensed to collect the evidence (against spammers), that he collected. I do hope, MediaSentry and **AA challenge the very law itself here, instead of trying to weasel out...
In Soviet Washington the swamp drains you.
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."
Bullshit. If private investigator licenses were required to take compromising photographs of people in public places, everyone who owns a camera would be required to have a private investigator license.
Ummm, hey, dumbass; it's not the act alone that matters. It is the act as part of an investigation. Are you retarded, or lying?
Stop-Prism.org: Opt Out of Surveillance
I am not familiar with the law in Michigan. I am somewhat familiar with what was attempted in Texas. I believe they have similar roots and similar objectives.
The idea is to eliminate the "shadetree forensic examiner" from the marketplace. These folks represent themselves as being qualified but often do more damage than useful work. Read up on Bando v. Gates for an example of an unqualified forensic examiner.
The problem is most people are missing the point. States do not differentate between actions taken as part of an investigation or not. States do not differentate between evidence being collected for court vs. information for private use. If you are going to regulate examiners, then by God they are going to regulate examiners. What defines an examiner? Well, the Texas proposal would have regulated anyone doing "examination" work.
Yes, indeed, using Google would have fallen into their definition in some cases. This is not a matter of fine-tuning the law. This is utter silliness. The objective - elimination of unqualified people touching computers - is a good one. I'd really like to have a law like that to keep most of the people that come to me for help from ever touching a computer again. But it is not a realistic objective and not one that is compatible with the current state of the art.
Bemoan the use of "unlicensed investigators" all you want, but be aware that the bloggers license is next if this really were to succeed. I suspect it will not. The law may remain but it will not be enforced. Ever.
I think there is a flaw in the argument by SafeNet/MediaSentry that the information is: "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." is flawed.
Millions of users might have access to all of that information, but only one is making money from it..... Guess who???!? SafeNet/MediaSentry. Their business is based upon the SALE of that information to the RIAA.
That must count for something in this smoke and mirrors game they are playing, don't ya' think?
The problem is that with the printing press copying was expensive (you had to overcome the initial cost somehow), and copiers had to recover the cost. That means: copying was (nearly everytime) a business, and the number of people who had the means to engage in copying was limited.
Thus copyright was a win-win situation for everyone: printers were paying for copyrights to have something to print and sell legally, writers had an incentive to write stuff for the printing presses, readers got more and more stuff to read, cheaper than they ever could hope to make a copy for themselves, and everyone could tell by a look at the print if a copy is legit or not, making it easy to track down on illegitime printers.
This situation is no longer a given. The amount of work of Arts is so immense, that no single person can ever hope to even have a look at the best 5%. Thus for the single person it is no longer important to foster the creation of new works of Art. Copy is cheap, and distribution is cheap, and the initial costs are nil, because systems bought for completely different tasks (gaming, email, websurfing...) are completely fit for the task of copying and distributing. Thus everyone is a potential copier. The definition of legal or illegal copies is becoming more and more circumstantial, it is no longer the object itself that reveals its own legality. It's the situation in which it got to you that makes the difference. So for the single person copyright makes less and less sense, because the existance of copyright does not affect the average person in a personal way anymore. If you not trying to become a paid creator, all copyright does is being confusing and getting in your way, because none of the former advantages is still a given.