Since the RIAA is now Pleading it “Detected” Downloading, Find out who “Detected” and if that entity is licensed to “Detect”
By Tony Sarabia (firstname.lastname@example.org)
Most “detecting” in RIAA cases is done by MediaSentry. But MediaSentry is based in a state which requires a private investigator’s license for detective work (broadly defined in the statute).
Practitioners should elicit information to determine if MediaSentry did the detecting and specifically ask for all its licenses during both Rule 26 disclosures and discovery.
Using an unlicensed investigator can form the basis for a number of counterclaims and third party claims (negligence per se, negligent supervision, federal computer fraud, violation of the federal Stored Communications Act) and even recovery of attorneys’ fees from MediaSentry under the tort of another theory (which applies in most jurisdictions).
An illegal investigation does not sit well with most judges. MediaSentry is part of a large company.
(Antonio R. Sarabia II is a licensed investigator and lawyer who focuses on Internet investigations of intellectual property. Mr. Sarabia is qualified to testify as an expert witness on generally accepted standards of conduct by private investigators, and generally accepted standards of supervision of private investigators. He is a graduate of the University of Chicago Law School and is based in Southern California. )
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Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs