Friday, February 08, 2008

Practice tip : collecting materials on MediaSentry relating to (a) illegality, (b) discoverability, and (c) admissibility

This post is a work in progress, and will be expanded upon.
-R.B.


There is going to be lots of litigation in the days ahead over the issues of (a) MediaSentry's unlicensed investigations, which are a crime in most or all states of the United States, (b) the discoverability of the underlying MediaSentry materials, and/or (c) the admissibility of the doctored text printouts, prepared for litigation, upon which the RIAA will seek to base its case.

From clues left about by the RIAA's PR hacks and other agents, it can be anticipated that their lawyers will argue that (a) MediaSentry wasn't really 'investigating', (b) it was doing what any other KaZaa (or other Fasttrack) user could do, (c) it isn't an expert witness, and (d) what it was doing was secret and "proprietary". (If you find any inconsistencies among these, please don't complain to me; complain to Richard Gabriel and Matthew Oppenheim, the architects of the house of lies).

It is important to the practitioner to be able to access a collection of the RIAA's prior pronouncements on MediaSentry, because the RIAA's lawyers will say just about anything, and often will contradict what they say in one context, in another context (sometimes even in the same document).

So the astute practitioner should be ready with a complete set of the papers (although it is of course a growing collection).

Here are some materials you might find useful. It's of course just a partial list. If you have any additions to suggest, please email them to me, or post them in a comment.

A collection of MediaSentry affidavits and declarations

A transcript of the deposition of an officer of MediaSentry*

RIAA's reply memo, in UMG v. Lindor, in support of protective order* (Arguing at pages 6-9 that MediaSentry's processes are "highly proprietary")(Arguing at page 4 that MediaSentry does only what any KaZaa user could do)(Arguing at pages 9-10 that there's an attorney client privilege even though there was no attorney and no client)(Arguing at pages 11-12 that MediaSentry is not an expert witness)

Declaration of Bradley Buckles* (Arguing that MediaSentry was given "instructions and parameters for conducting online investigations" by the RIAA)(Arguing that MediaSentry's processes are highly proprietary to MediaSentry and highly confidential)

Thanks to the ever vigilant Jon Newton of p2pnet.net for reminding us that one would also do well, in this context, to study up on the rejection of MediaSentry's flimsy investigation by the Dutch and Canadian courts, who thus spared their respective judicial systems from the plague which is causing such a blemish on ours.


* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net




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

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The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.




9 comments:

Alter_Fritz said...

Hm, long time ago that I locked over the Millin Depo, probably that's why this "conspiricy theory" just came now to my mind... (Its late here, and I might need some sleep now, sorry if the idea is much to absurd, even given with what plaintiffs you guys deal ove rthere)

Remember how we all speculated that Harvard isn't on the list because of the prof the lawschool and the hike thingy?

maybe it's much simpler to explain!

RIAA might have not send yet any letters there because they simple have indeed no infos about pirating students there because of this:

16 6. Q. And you [Millin ]have an MBA from Harvard?
17 A. That's right.


Probably MediaSentry just excluded the Harvard IP range in their highly properitary processes that on the other hand every person can do, so that Mr Millin will not get confronted with angry ex fellows and their follow up students after their graduation year since they know Gary was not only technology litterate to set up an email service company, but also knew how to get the newest big 4 stuff back then?!

Maybe someone should ask him in his next depo if MS indeed have not so far reproted harvard IPs to the RIAA and their national lead counsel HRO's Richard.
If he tells then that he did report it is clear that RIAA members are indeed not interested in protecting their copyrights against direct infringers, but run a highly selective "see american joe average, you better be afraid of doing ANY kind of filesharing at all or we will terrorize you"-campaign where they only choose the most vulnerabe and defenseless individuals as examples for the masses to see and fear.

MicrosoftHater said...

Ray you say we should not complain about incosistencies. I agree with
that to a degree, but I do think we should point out any inconsistencies so that they can be argued in court.

Basing this on what your post alone, you say that the RIAA is trying to introduce doctored text printouts as evidence, and is at the same time claiming that Media Sentry is (?) not an expert.

If Media Sentry is not an expert, then how can anyone know that the
documents have not been doctored in a way that severely distorts
what they represent factually?

They might argue that Media Sentry
is only following instructions, but the same thing could be said of a MacDonalds employee doing an appendectomy using a surgeons instructions. I bet you don't want him doing it on you. Experts are experts for a reason, they are competent at what they do.

I would be suprised that no else has yet noticed this argument, but
I thought I would mention it anyway. Just in case.

blhseawa said...

Ray,

The following taken from Gary Millan cross-examination transcript of the President of MediaSentry.

23 BY MR. SCOTT:
24 161. Q. You say in paragraph 93 of your
25 affidavit:
47
1 "Once an ISP is given an IP address within
2 the range of IP addresses it manages, and the date and
3 time it was used, it should be a relatively
4 straightforward task for the ISP to determine the identity
5 and contact information of the Infringers,"
6 Are you using "Infringers" as being the
7 person who is operating the computer that has this IP
8 address associated with it; is that what you mean by
9 "infringers"?
10 A. We don't have the identity of the
11 person operating the computer, so we -- we have the IP
12 address that we could see where that piece of content was
13 being offered from.


My question is why are the judges in these case not handing down sanctions to RIAA attorneys making knowingly false statements?

Is this something the ABA should be involved in?

Aren't attorneys officers of the court, having sworn to tell the full truth and nothing but the truth?

How is this allowed?

Perhaps it is time for the public commissions to policy attorneys rather than the bar!

Confused citizen.

Ray Beckerman said...

I think they're getting there.

Barry said...

I think it's pretty clear that MediaSentry is gathering information for hire on behalf of a private party in preparation for further legal activity. In Oregon (where they seem to be in the most trouble at the moment), that is one of the qualifying characteristics of a private investigator.

Of course, one notable exemption is if they doing research in preparation for being an expert witness. (Also note that Oregon law seems to require individuals to register separately, but I haven't been through the statute so thoroughly as to say this for certain.)

I guess an important question is whether MediaSentry (or its employees, if they are considered individually) can be considered both at the same time, if they are sometimes doing research when they know they won't be called as an expert witness to testify as to the results. That is to say, can someone benefit from the expert witness exemption if they are going on a fishing expedition first and only testifying when they dig something up? Or, if lower MediaSentry employees dig up the data, but the president testifies in court, do the lower employees forego the exemption because they never personally testified?

Russell said...

microsofthater,

an expert has a specific legal context as opposed to a factual witness. factual witnesses are often experts in their field but they can attest only to the facts as they know them and aren't supposed to offer opinions. expert witnesses may not know the facts first hand but are allowed to offer opinion based on their experience and training.

I don't have any problem with them not being an expert witness as long as any opinion and conclusions are excluded.

I do have a problem with their investigative methods and protocols not being vetted to ensure the facts presented are the only possible facts. Any new forensic lab test would have to be reviewed before it is accepted in court.

Russell said...

If the facts that MS collects are accomplishable by any p2p user, could they be forced to demonstrate that in open court?

Although it is probably a bad idea to do something like that. you don't know the results of demonstration would be.

Shane said...

Basing this on what your post alone, you say that the RIAA is trying to introduce doctored text printouts as evidence, and is at the same time claiming that Media Sentry is (?) not an expert.

I think a few issues are getting confused here. Ray (IIRC) has contended that the kind of work MS claims to do and must testify to is specialized knowledge and falls into the class of witness known as "Expert Testimony" and that MS standards and procedures do not pass muster for proper and admissible Expert witness testimony since their methods do not pass legal or scientific muster as set by our legal system for Expert testimony.

The RIAA says MS techs are just ordinary people who only do what everyday users of Kaza do, and thus need not qualify under Expert testimony rules and may testify as "fact" witnesses. Such a position is clearly BS since MS has refused to produce discovery on the basis that their methods are secret and proprietary and are based on thousands of man hours of development. Thus the RIAA has painted itself into a corner--and that's without the fact that MS is not a licensed private investigator in any state let alone New York as it must be in order to legally perform investigations and evidence for use in legal proceedings..

tekel said...

"the architects of the house of lies"

Man, that is a nice turn of phrase.

I want that on a business card. "ARCHITECTS" in big bold block all-caps print, "house of lies" underneath, lowercase, smaller font, spaced so that it sits directly beneath...