Monday, April 09, 2007

RIAA Disputes Defendant's Objection to Magistrate Order Granting Protective Order for MediaSentry Agreements in UMG v. Lindor

The RIAA has filed a response disputing the defendant's objection to the Magistrate's order granting plaintiffs' motion for a protective order preventing defendant's lawyers from having copies of the RIAA's agreements with MediaSentry, in UMG v. Lindor

April 9, 2007, Response of RIAA to Defendant's Objection to Magistrate Order Granting MediaSentry Protective Order Motion*

* Document published online at Internet Law & Regulation

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8 comments:

Scott said...

I think HR&O, in describing the relationship between the RIAA and MediaSentry, said some things that were not prudent to say.

If MediaSentry communicates information to the RIAA that leads the RIAA to erroneously sue someone, then that communication is libel. And it's not covered by attorney-client privilege, is it?

If you're declared the prevailing party, but you can't recover your costs from the RIAA, why not sue MediaSentry directly for libel?

AMD FanBoi said...

Hasn't it been pointed out before that Media Sentry HAS NO COMPETITORS in this field? If true, then a big argument for confidentiality here because of damage it would do to Media Sentry is bogus. In fact, keeping the terms secret under those grounds actually hurts the RIAA, who might otherwise find better services at a cheaper price. They should, you'd think, Love to have this information out.

As far as instructions and parameters for conducting on-line investigations, if you know what those are you might be able to realize that, with those strictures, Media Sentry COULD NOT HAVE SUCCEEDED in detecting with certainty the infringements they claim to have detected. You really do need to know what their limitations are in order to conduct a proper defense, and I think they're afraid you'll actually show that The Emperor Has No Clothes!

And just where is the "See id. at [par]7" note that justifies with specifics their statement that in the past infringers have learned how to evade detection once the nature of these efforts was determined. That would make for some interesting reading.

It's even possible, btw, that Media Sentry is conducting illegal investigations, and attempting to shield themselves from the law in the process. Things like, registering domain names and IP addresses under fictitious names to avoid being identified with these efforts. That's against the law, but you have to be able to prove it. There appears no doubt that a lot is attempting to be hidden here.

And they mention that Media Sentry was involved in the formation of legal strategy. Are they lawyers too? Is this privileged information, or not?

The RIAA admits that this strategy was created with the idea of resisting litigation from the beginning. That implies that they realized that their methods are questionable at best, and would not stand up well to legal inspection. All the more justification for the defense to see them immediately.

Nice to know that Magistrate Judge Levy can get something right in the RIAA's eyes. They love him when he agrees with them, but he's an idiot (so to speak) when he doesn't.

I would say for the reasons I've given above, that the Defendant can greatly show relevance for the Media Sentry agreement in their defense. It looks like a cover-up of shoddy investigative work otherwise.

And when they claim that defendant has every single piece of paper and every electronic file that plaintiffs have with respect to Media Sentry's investigation, does this mean they have everything given to the RIAA, or does it mean they have EVERYTHING? I suspect the former, and of course nothing exculpatory would have been turned over to the RIAA in order to prevent the defendant from getting their hands on it. Can the RIAA really distance themselves from their investigators in this manner?

Remember what a lousy job the hard drive so-called expert did. Without seeing all the raw data collected and possibly kept in Media Sentry's hands, you will have trouble knowing how questionable the Media Sentry investigator has been.

AMD FanBoi said...

P.S. Find out the IP address of the computer that Media Sentry was using at the time it claims to have detected the alleged infringement. And don't let them tell you it was either: 192.168.xxx.xxx or 127.0.0.xxx. Tell them you need this information to determine if their computer ever even connected to the defendant's computer.

Todd said...

I'd think that, while the entire agreement might legitimately be confidential, the part about the procedures Media Sentry used and the parameters they operated under (starting near the bottom of page 2 of the PDF) would be very relevant to the case. Isn't how the evidence was obtained directly relevant to the credibility of the evidence, and the credibility of the evidence exactly legitimate material for the defense?

Alter_Fritz said...

scott, your libel argument is interesting.

I thought it a bit further: since RIAA is fighting tooth and nails to say media Sentry is NOT the expert, but just the data gathering company....

...who is it that tells the RIAA the information that leads to the situation that they sue you?

Right, you got it!
And now this guy (I refered to him once as "trial-virgin") might see in what for a possibly dangerous situation he has maneuvered himself with his "fast money for a sloppy job" deal!

Dr. J, better get a lawyer that will safe your butt once those class action suits are rolling in.

Remember dear Doctor; "I just followed orders" was more then once in history not an adequate defense....

:-P

Scott said...

alter_: From what very little I know about libel law (very little), it seems to me that the plaintiff would only have to prove that MediaSentry was negligent. That's far from impossible to do, given the record of the RIAA's expert witness, Dr. Johnson. Moreover, unlike other libel cases, the damages are tangible and well documented (the cost of defending oneself against a wrongfully filed lawsuit, for starters).

If MediaSentry were proven a serial libeler in court, would this open a floodgate of new litigation against the record labels, brought by all those who caved on "settlements"? Maybe a lawyer could answer that question.

StephenH said...

Amd Fanboi,

MediaSentry DOES have Competitors:

MediaDefender: http://www.mediadefender.com
BayTSP: http://www.baytsp.com
cyveillance: http://cyveillance.com/

Scott said...

Oh, IANAL, but on the negligence standard in libel cases involving private persons: Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). This is a much lower threshold than the ones established for public figures in New York Times v Sullivan, 376 U.S. 254 (1964).

Also, public figures can't collect for intentional infliction of emotional distress, but private persons can. Hustler Magazine v. Falwell, 485 U.S. 46 (1988)

Again, IANAL, but MediaSentry seems really vulnerable to hundreds of potential litigants for libel claims. Any libel lawyers out there? This one should be put up on Groklaw for comment.