In Atlantic v. Shutovsky, pending in Manhattan, the defendant is making a motion to exclude the "evidence" prepared by MediaSentry, on the ground that MediaSentry procured such "evidence" through criminal conduct.
February 6, 2008, Memo Endorsed Order of Hon. P. Kevin Castel*
* Document published online at Internet Law & Regulation
Keywords: digital copyright law online internet 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 intellectual property
7 comments:
The judge's penmanship rivals that of a medical professional, and the scanning of the document doesn't ever help that situation. I think I've sorted out the handwritten bit. Feel free to correct anything I've got wrong:
"At the time any motion for summary judgment (or opposition to summary judgment) is filed, defendant may file his motion in limine. If no summary judgment motion is filed, then motion in limine may be filed 21 days prior to the final pretrial conference. So ordered. -Signature- USDJ -date-"
Good to see that MS' illegal investigations are being called what they are.
I'm not sure whether to be encouraged by the characterization of MS investigations as "surfing the internet." While that does describe the level of professionalism, rather the lack thereof, it does make it seem like MS could be a legitimate fact witness to the eyes of the judge, in spite of the fact that MS uses secret software and methodologies of un-reviewed and un-proven reliability which fail all proper application of the standards for expert testimony.
I hope this motion to exclude is granted. If MediaSentry is found to be an unlicensed investigator, this would give defendants in a lot of these RIAA cases a defense. I beleive this could also pave the way for class actions of former defendants to sue and win. I know there are similar investigations going in Massachusetts and Oregon, too. I read that the Massachusetts Police sent MediaSentry a cease-and-desist letter. In Oregon, the attorney general is investigating them and asked MediaSentry to prove it has an investigations license in the state of Oregon (which it presumbably does not even have).
I wonder what RIAA will do if MediaSentry is found guilty of investigating without a license.
Notwithstanding the serious flaws in the so-called 'evidence' presented by the RIAA courtesy of MediaSentry and the collective defences' inability thus far to obtain a favourable ruling that dismisses it out of hand then I suspect that this simpler and more direct approach may yet work. Certainly the increased level of media comment of the (il)legitimacy of the MediaSentry operation in respect of their work for the RIAA must be causing some concern. I am on the lookout for a concerted RIAA media blitz (similar to their response to the hoohaa over 'ripping to mp3') to appear sometime but I suspect they are having some problem putting a spin on this without undermining their own case. My heart bleeds!
Not to put too fine an edge on what has already been a winning legal argument, but MediaSentry doesn't merely "surf" the internet seeking access to music files. They instead use secret, proprietary investigation software that has required tens of thousands of man hours to create. They say so themselves. This is not some casual undertaking or hobby by them, but serious – and very importantly, PAID FOR – investigative work on their part.
And in truth, they are the ones who believe that current laws don't, and cannot, reach out to touch them in the virtual world of the internet. That they can do what they wish there with complete impunity.
All the best luck with really socking it to them over this!
-Dodge Magnum
"...MediaSentry doesn't merely 'surf' the internet seeking access to music files. They instead use secret, proprietary investigation software that has required tens of thousands of man hours to create. They say so themselves."
What MediaSentry says is likely to be at variance with the truth, in my opinion. In any case, it's irrelevant because we all know their investigations have resulted in the wrong people being attacked by the RIAA in a number of cases we know about; and probably thousands more that we don't. Their presumed role is finding persons illegally downloading unlicensed software. Their actual role is to provide the RIAA with justification for using the courts to terrorize thousands of people, many of whom may be innocent of any wrongdoing, for purposes that are purely political; and do it in a way that keeps the lawyers at HR&O in Briani suits and Gucci loafers.
MediaSentry's "evidence" cannot continue to be held above reproach by the courts. The fact that it has is to the discredit of the legal system. And I'll stop right there lest Ray ping me again for pontificating.
Correction: "unlicensed software" = "unlicensed music" in my post above, graf 2. (My mind was on work, my apologies.)
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