maybe someone with more knowledge of the law can comment on the 'burden of proof' to connect RIAA to the record labels, for the sake of punitive actions (damages and maybe even better/worse...) It's not even an issue, it's an admitted fact that the lawsuits are being run by the record companies' front, the RIAA; the contracts with MediaSentry were signed by the RIAA.. the extortion -- I mean settlement -- checks are made payable to the RIAA client trust fund.
It's 'way past time we came up with an expression to represent the current situation. Perhaps, "Killing Weasels".
The phrase itself could be something like, "When you're shooting rats near the henhouse, it's inevitable that you're going to hit an occasional weasel." This would cover the RIAA thugs the record companies have hired, as well as the scumbags who actually run the Big Four. As a strong believer in animal rights, I am appalled at your defamation of weasels.
Right, I was aware of the illegality of the MediaSentry investigations. I guess I had my eye on the much jucier RICO charges like racketeering that can carry up to 20 year sentences. Any chances a US Attorney could indict on those grounds even after this litigation is settled? Sure. They'd have plenty of material to work with. In the Napster case the judge held they could no longer assert attorney-client privilege, under the 'crime-fraud exception', because they'd lied to the US Department of Justice when it was conducting its antitrust investigation of them.
Of course the Napster case was settled shortly thereafter.
In this case, I think I'll be happy as long as the RIAA gets badly bruised. The only way this could turn out badly is if the class-action lawyers accept a payoff by the RIAA before discovery happens. Well, if there were a quick settlement which included a consent decree against bringing any more of these stupid cases, and the dropping of the cases that are out there.... that would be okay with me. The main thing in my book is to stop this evil thing.
After reading/skimming my way through all 109 pages of that, I have a question for you. I noticed many of the allegations made against the defendants look like laws with criminal punishments. Is there any chance (please say yes) that some of the people involved in this legal travesty could face prison time? Preferably somewhere with multiple large cellmates named "Bubba"? Yes.
For example, the Michigan Department of Labor and Economic Growth recently pointed out that (a) MediaSentry has no license to conduct investigations in Michigan (b) MediaSentry needs a license to conduct investigations in Michigan (c) MediaSentry appears to have been conducting investigations in Michigan and (d) the penalty for conducting investigations without a license in Michigan includes up to 4 years in prison.
They also apparently have an army of unlicensed private investigators.
It seems that their tactic was:
1)"illegally enter the hard drives of tens of thousands of private American citizens to look for music recordings stored there". That was MediaSentry's job.
2) Fill "thousands" of anonymous lawsuits, only to subpoena the ISP, and then "discover" the IPs that they already illegaly found. The lawsuit is then discarded, having served it's purpose.
3) Profit, by settling out of court, harrassing and such.
I thought I was pretty well informed on those things, and yet it's the first time I hear about that. It sheds a very new light on the fact that they often couldn't give the proofs. (What I still don't get though, is how they ended suing guys without computers.) I wonder about that myself. If I were a judge I would have hit the RIAA's attorneys with Rule 11 sanctions, big time.
Pardon, but aren't existing precedents the reason why they are exposed to this type of litigation in the first place? A precedent doesn't prejudice future litigation against a particular party. It covers circumstances of law, not defendants.
The discovery would sure make interesting conversation around here, but I believe that writing large checks every time they screw up is more effective.
Besides, it's really unknown how often they do make this kind of mistake. Meaning, we don't know that given X number of lawsuits brought by the RIAA, Y are targeting the wrong defendant. Is it one in 100? One in 1,000? One in 10,000? I've no idea Based on my experience, I would estimate that the ratio is closer to 1 out of 2.
Troll
1. One who posts a deliberately provocative message to a newsgroup or message board with the intention of causing maximum disruption and argument There are other uses of the term "troll" on the internet. See this article, e.g. I always use it more in this sense:
people who pretend to be someone that they are not - they create personae that you think are real, but they know is fictitious. I believe there are "trolls" of this sort who are in the employ of the RIAA who are working on Slashdot
Please excuse the stupid question, but how, exactly, is MediaSentry conducting their investigations? It's not a stupid question. Even the RIAA's expert witness doesn't know. (See transcript, p. 32, li. 20 - p. 33, li. 6):
20 Q. Do you know what processes and
21 procedures MediaSentry employed?
22 A. I do not know the inner works of
23 MediaSentry processes and procedures.
24 Q. Do you know what software they used?
25 A. No.
2 Q. Do you know if it was well known
3 off-the-shelf software or if it was proprietary
4 software?
5 A. Again, I do not know the inner
6 workings of MediaSentry's operations.
In states where they would, as you say, have to pursue them criminally, would it be just a fine or would someone be incarcerated? Seems to me that an entity like the RIAA would consider a fine to be just another cost of doing business. Could someone actually (I fervently hope) go to prison for this? According to the letter (pdf) from the Michigan Department of Labor and Economic Growth, it could carry a prison sentence of up to four (4) years.
Why should someone need a license to investigate something? I have no love for the RIAA, but that law seems to be a much bigger threat to individual freedom than the RIAA itself. Often licenses are issued so that there is some power of somebody, i.e. something you can take away from them, which gives the state the ability to ensure that the person or entity is complying with law. In MediaSentry's case, its sloppy 'investigation' yields (a) more than 50% false positives in terms of identification alone, and (b) in 100% of the cases, no evidence that the individual pursued actually infringed a copyright. If you were being forced to pay someone $4500 to get them not to sue you, for something you hadn't done, I think it would be crystal clear why one needs a license to be an investigator. It's because lawsuits are being based on their work, and people's lives are being destroyed by their work. In such cases, if they had a license, the state would have regulatory authority over them by being able to threaten them with revocation of their license. Absent a license, the state's only authority is to pursue them criminally for having sidestepped the licensing law.
this article is only someone's impression of what Zittrain said in his talk. I like the guy's work, I respect a lot of what he does, and I think you might be better off looking at what he himself says rather than someone else's version of it. If you still don't like it, then's the time to call him an idiot. Fair enough.
While I can't match Prof. Zittrain's large stable of self-invented multisyllabic words, I have a 2-syllable word for what he is saying:
Rubbish.
This guy needs to get outside and breathe some fresh air.
He can't possibly believe the conclusion to which his flawed, fallacious, circular reasoning has brought him.
To equate belief in democracy with anarchism and libertarianism.... to equate honest believe using the internet to communicate freely and to learn freely with "malware peddlers, identity thieves and spammers"... to suggest that "malware peddlers, identity thieves and spammers" are an organization... to suggest that there is only an either/or choice of allowing freedom to flourish or allowing "malware peddlers, identity thieves and spammers" to conduct themselves improperly without regulation.... to suggest that one type of authoritarian abuse would reduce the risk of greater authoritarian abuse... to suggest that the only permissible form of regulation is his suggested form of regulation... this is all sophistry.
I love the title of the article. Why ask a question if the answer is obvious? It is a bit trollish, and makes the title seem objective, when clearly it isn't... Bill Sorry, unclebill, I wasn't asking the question philosophically, or playfully. I was asking it as a working question, which I think most of my regular readers got, since they've seen me previously ask the Slashdot community for ideas on what questions to ask the expert witness, and for comments on the testimony he ultimately gave. I submitted a story to Slashdot and to Groklaw, which was published only on Groklaw, in which I asked the tech community for input as to what items I should be asking MediaSentry for.
In this case I wanted to hear people's views, especially those of tech people, on what backup is needed to make an informed appraisal of the scientific reliability of what MediaSentry has done, because that will be helpful to me in my further discussions, or briefing, with the Judge. If you look here, and at the comments under the post on my blog, you'll see that I am receiving a number of responses which are informative and helpful.
How can evidence be considered valid if the source of how it is obtained is not disclosed?
If this was anything except technology, the judge would laugh them out of the court.
Policeman: "He was going 11MPH above the speed limit."
Judge: "How were you able to do that?"
Policeman: "Sorry, but that's proprietary information. If leaked, it would damage our ability to catch speeders.
This has been tested on a slightly different case. Florida police can't use breathalyzers without providing the source [news.com]. Unless you can show that there is no trickery in your technology, it shouldn't be held admissible in a court of law. Very well spoken, Coopjust.
1. Is the media that they wrote the logs to a read/write type such as a hard drive, or is it a write-once medium such as CD-R, WORM, or any other of a litany of one-shot write technologies. Read/write media leave open a gaping credibility hole, as the files can be easily modified at any time to say anything.
2. Can they produce the original media AND prove that it has not been modified since the records were created?
3. What verification of the date/time stamps are they using? Is it just a text or number date/time, or something more robust such as a time-based GUID? And is there a secure checksum of the entered record (such as an MD5 hash) that can be checked to show authenticity?
4. What measures are they using to ensure that their date/time stamps are reasonably accurate?
5. What physical security measures have they taken to ensure that physical and/or remote access to the media and systems used is restricted only to authorized personnel? That's what I want to know.
Work for a small ISP, we get about 140-160 of these notices a week. On average, about 10 per week cant be attributed to a customer reliably. This MAY be an error at their end or it MAY be an error at our end (user logs going missing happen from time to time due to errors in our system) I know, but the RIAA doesn't want the judges to know that.
Normally, the acceptable scope of discovery is pretty broad, and a court will allow a lot of discovery of proprietary or confidential information if it is covered by a suitable protective order. In this kind of case, where the defendant has no trade interest in the proprietary or confidential information, and where it is clearly relevant to the evidence relating to trying the claims, getting it through discovery and allowing an expert witness to review it should be nearly a slam dunk. You are absolutely correct. But there have been some bizarrely protective rulings in the past from this Court in this case.
In response to the subpoena:
7. This is absolutely critical. Most ISPs assign IP number through DHCP. The numbers are only leased for a short time. If the end-user's computer doesn't renew the lease (perhaps because it is shut off or the connection dropped) the number will be freed up and reassigned to someone else. The time (and timezone) at which the activity was recorded could impact who the IP number was supposed to be assigned to.
It is also critical that the system be synchronized regularly. Some systems will log when the clock is synchronized and record the amount of the adjustment. It's also important to note what the clock was synchronized with. Our nation's official time keeper is the U.S. Naval Observatory. They run an NTP server at tick.usno.navy.mil.
9. These are presumably the logs Dr. Jacobson analyzed to conclude no wireless adapter was used, so they should exist. The IP headers will tell you if loose source routing was used (one form of IP spoofing). There should be timestamps on the recorded packets which will tell you latency between MediaSentry and Ms. Lindor. If the latency is less than the speed of light (about 20ms from New York to California) then you know something fishy is going on. It will also give you an idea of what the transfer rate was. If it exceeds the service Ms. Lindor had subscribed to, you again know something is going on. Kazaa likely also includes a wealth of information in its layer of the protocol stack.
The logs may indicate many failed attempts to download files. If the infringer's machine was not able to respond to most download requests it would put an upper bound on damages.
You can set up your own test to prove that Dr. Jacobson's claim about wireless is bogus. Your own test would produce packets very similar to those from the logs.
11. Most software has bugs. Software that isn't exposed to the general public isn't tested as well and consequently has more bugs. It is virtually guaranteed any custom software MediaSentry developed has bugs in it. You need to determine if there were any bugs that would impact the claims MediaSentry is making.
13. If MediaSentry downloaded documents suggesting the machine belonged to someone else it would certainly be pertinent to the defense. Many a public figure has learned the hard way that Word documents record the user who created them. MP3 files contain IDT tags that can include arbitrary information (the actual information depends on the software that created the file). If the documents contain a name and that person uses the same DHCP server as Ms. Lindor it would be a huge red flag that the other person had a lease on the infringing IP number when the documents were downloaded.
16. 11 files in three seconds?? The logs from paragraph 9 would be interesting here.
27. As mentioned earlier the clocks are critical. If MediaSentry and Verizon were out of sync the IP number and all the evidence associated with it are meaningless as evidence. I wish you weren't an "AC". Me thinks you have much good stuff to tell us.
Slashdot Mirror
I'm sure the prisons in Michigan can supply everything you ask for, and more.
Of course the Napster case was settled shortly thereafter.
For example, the Michigan Department of Labor and Economic Growth recently pointed out that
(a) MediaSentry has no license to conduct investigations in Michigan (b) MediaSentry needs a license to conduct investigations in Michigan (c) MediaSentry appears to have been conducting investigations in Michigan and (d) the penalty for conducting investigations without a license in Michigan includes up to 4 years in prison.
The record companies are also defendants, along with their investigators, collection agents, and front organization -- the RIAA.
20 Q. Do you know what processes and
21 procedures MediaSentry employed?
22 A. I do not know the inner works of
23 MediaSentry processes and procedures.
24 Q. Do you know what software they used?
25 A. No.
2 Q. Do you know if it was well known
3 off-the-shelf software or if it was proprietary
4 software?
5 A. Again, I do not know the inner
6 workings of MediaSentry's operations.
that MediaSentry is stonewalling on Marie Lindor's document subpoena. I guess it has some skeletons in its closet.
Sounds like my personal cyber-stalker, Matthew Oppenheim.
Legally they've been told to "cease and desist". If they're violating the "cease and desist" letter, well that's a whole new crime, isn't it?
While I can't match Prof. Zittrain's large stable of self-invented multisyllabic words, I have a 2-syllable word for what he is saying:
Rubbish.
This guy needs to get outside and breathe some fresh air.
He can't possibly believe the conclusion to which his flawed, fallacious, circular reasoning has brought him.
To equate belief in democracy with anarchism and libertarianism.... to equate honest believe using the internet to communicate freely and to learn freely with "malware peddlers, identity thieves and spammers"... to suggest that "malware peddlers, identity thieves and spammers" are an organization... to suggest that there is only an either/or choice of allowing freedom to flourish or allowing "malware peddlers, identity thieves and spammers" to conduct themselves improperly without regulation.... to suggest that one type of authoritarian abuse would reduce the risk of greater authoritarian abuse... to suggest that the only permissible form of regulation is his suggested form of regulation... this is all sophistry.
In this case I wanted to hear people's views, especially those of tech people, on what backup is needed to make an informed appraisal of the scientific reliability of what MediaSentry has done, because that will be helpful to me in my further discussions, or briefing, with the Judge. If you look here, and at the comments under the post on my blog, you'll see that I am receiving a number of responses which are informative and helpful.