Wednesday, February 27, 2008

RIAA & MediaSentry oppose MediaSentry responding to subpoena in UMG v. Lindor

In UMG v. Lindor, the RIAA and MediaSentry have both filed papers opposing Ms. Lindor's motion to compel MediaSentry to answer the subpoena that was served upon it.

February 27, 2008, Letter of Thomas M. Mullaney to Hon. Robert M. Levy (opposing motion to compel MediaSentry to answer subpoena)*
February 27, 2008, Letter of Richard Gabriel to Hon. Robert M. Levy (opposing motion to compel MediaSentry to answer subpoena)*

* 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

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17 comments:

Alter_Fritz said...

Well without actually reading it before commenting, I guess it's the usual lying and/or bovine feces ( I love that "workaround" with respect to the comment policies! :P ) from Mr Gabriel, so just one easy question that came to my mind seeing Ray's caption:

And how exactly has a counsel for a plaintiff standing to ask for something on behalf of a third party that is already represented by its own counsel?
What does your FRCP say to Mr. Gabriel's behaviour?
*Serious question, really!!*
Since it might make it obsolete to even take the time to disect his letter this time.

Shane said...

Nice to see that RIAA Richard is continuing to invoke the Tobacco Industry method of attempting to conceal information by claiming that having council present in RIAA strategy meetings with MS means that all RIAA MS communications are "privileged."

I'm especially impressed by the gumption of asking the Judge to prohibit even asking questions in deposition about any "proprietary" information of MS or the RIAA, i.e., the defendant should not even be allowed to ask MS or the RIAA how the alleged evidence against them was gathered...

How RIAA Richard is able to ethically juggle the concept of MS being a "fact witness" that only does what "any" user of the internet can do with the contradictory idea that all of MS techniques are proprietary and could be copied by competitors if revealed is beyond me. If they really simple "anyone can do them" techniques that MS will testify to in court then how could revealing them in discovery be a competitive disadvantage?

I could never be an RIAA lawyer--arguing contradictory points at the same time would make my head explode. I wonder how RG does it?

Timothy said...

From the perspective of systems engineer, as myself, it appears particularly typical that the plaintiffs do not wish to respond to the majority of definitive technical requests that Mr. Beckerman made in his November subpoena, as those could actually shed light on whether a), the plaintiffs procedures are actually sound from a scientifically technical perspective, or b), whether the plaintiffs have even bothered to actually collect such scientifically accurate technical information.

Mike said...

A particular turn of a phrase caught my eye this time around and I think we have yet another fine example of semantics on the part of Mr. Gabriel here:

Plaintiffs responded that these arguments were baseless and that defendant was provided every single piece of paper and every electronic file that plaintiffs has with respect to SafeNet's investigation into the infringement at issue in this case.

Notice that he's saying they've handed over everything the PLAINTIFFS (e.g. the RIAA) have... not necessarily everything that SafeNet has. I believe it to be entirely probably that SafeNet has significantly more information that could be turned over. Additionally, the subpoena is to SafeNet, not the plaintiffs. From the defendants standpoint, they aren't asking for the information the plaintiffs have - they are specifically asking for the information that SafeNet has.

Once again, "the devil is in the details".

Anonymous said...

From the letter:

"Third, the documents sought involve highly proprietary and confidential information, including but not limited to confidential pricing information and detailed instructions and parameters regarding what SafeNet searches for on behalf of the record companies, how it does so, and where it searches..."

Hmm...I thought Media Sentry was searching on behalf of the lawyers, not the record companies.

*Cough* *Private Investigators* *Cough*

-Mike

Mike said...

A second thought I've had on the matter of the technical competence of the SafeNet investigative techniques is to wonder if the use of a neutral third-party analysis would be warranted?

Similar to the "hard drive examinations", would it be possible to avoid the "privilege" issue by having a neutral third-party provide an evaluation of the scientific methods? This third-party could be restricted by non-disclosure agreement but allow for a proper examination of the procedures used by SafeNet.

As curious as I am on the "how", I'm doubting we are going to see anything concrete for a very long time. This might at least get the public a chance to better understand the inherent problems in their process.

Russell said...

Proprietary information can be submitted under deal (long time Groklaw fan, believe me SCO seals everything). Certainly that information goes to the heart of any defense that challenges their work methods. Sealed documents would also alleviate the potential for damage if released to the general public.

client privilege is a tougher nut but I don't think he is detailed enough in his rebuttal to determine which exhibits are valid c-p and which are not. Correct me if I am wrong, but there are other criteria than just a lawyer being involved with the communications to make it protected.

He also makes it clear that MS is an investigative agency that has commercial interests using this technology beyond the RIAA. How could they be harmed if they are employees of the lawyer as proposed in the BU case.

I may be taking a simplistic view of the 6th amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

But it would seem to me that MS are the witnesses involved.

CodeWarrior said...

Since Ray warns us that the RIAA may quote posters in this blog in court,
it is with great care and circumspection that I make my comment on the issue of the RIAA and MEDIASENTRY opposing the subpoena in reference. It seems that MediaSentry has been a key actor in the cases the RIAA has filed, and as such, there are some serious questions that they should answer. If they have been important enough to become involve as "investigators" in these cases, then they are relevant and should answer the subpoenas. It seems that both MediaSentry and the RIAA seem unreasonably uncomfortable about MediaSentry coming clean in Court.

Therefore, their reluctance to answer is extremely suspicious, and their sore spot here, may mean there is something wrong going on in the RIAA/MediaSentry camps.

~CodeWarriorz Thoughts
http://codewarriorz.blogspot.com

David Donahue said...

After reading the response by MediaSentry, they claim the separatenesses and privileges of being a non-party (an unrelated 3rd party), irregardless of their other arguments, isn't this in conflict with the recent RIAA position that MS, being hired by the plaintiff's attorneys) are protected by privilege, since they actually part of the plaintiff's attorney team?

It doesn't seem, to me, to be fair if I hire someone to break into your house (through an admittedly unlocked door) and then take something, that you can then accuse that homeowner of distributing that something to the burglar. Further, if I hire the burglar through my attorney, the homeowner has no right to question the burglar and how he did it because the burglar is a hired agent of my attorney's team and thus protected by privilege.

Shane said...

OMG! The false analogy that council for MS cites is stunning.

Council for MS is invoking the IP address of alleged file sharing is analogous to phone number argument--an analogy that has been repeatedly and conclusively shown to be false. Council cites the false and inflammatory analogy of a criminal wiretap attributed based on a pen register (and the sound of the persons voice). Here council falsely attempts to equate the civil copyright case with a criminal case and falsely suggests that an internet IP is as reliable an identifier of a person as a recorded phone call of that person with the pen register call trace data, saying "This case is no different"![emphsis added]--sheer bollocks.

Anonymous said...

This is just the same old tired circular arguments by the RIAA. I'm waiting for them to use the "Chewbacca defense" next.

Apparently, MediaSentry is at the same time a non-involved third party and part of the RIAA legal team. They are an investigator and not an investigator. Black is white, white is black.

Similarly, they claim defendant admits her computer was used in the alleged infringement, when their own expert witness testified that her computer was not involved. So essentially they are saying that she is simultaneously guilty and not guilty. Will they want her to simultaneously pay and not pay a judgement if they prevail?

Ray, I'm glad that they reference your blog in just about every opportunity now. It must be striking close to home for them. Shouldn't they be paying you royalties?

Regards,
Art

Anonymous said...

SafeNet has certainly not provided documents proving that they were lawfully employed as licensed investigators while investigating and providing evidence in this case. They have not shown who hired them, paid them, what the parameters of their investigations were, what methods, processes, and software they used, how they can ensure the accuracy of their investigations, or what known deficiencies existed in their investigations. They have not explained how they are "like any other user" despite their long and expensive development of proprietary methods. These are all relevant in determining how hard the Plaintiffs should go down over this gross excuse of a case, and whether or not they have any valid evidence to pursue any other alleged infringers over the information you have provided. This goes far beyond the scope of the so-called "Lindor file", and everything they have may all turn out to be Fruit from the Poison Tree.

All this information certainly also goes towards the Defendant getting all of her legal fees paid by SafeNet's shoddy and inaccurate naming of her as the primary infringer in this case.

I observe that while SafeNet freely admits to a contractual relationship between themselves and the RIAA that they wish to keep details hidden, they have yet (to this observer) ever admitted to contractual relationships with the actual attorneys in this case, as they now claim in the other recent case update posted here. Claims that would shield them from needing investigator's licenses for their illegal investigations.

I must admit to being very puzzled on how Richard Gabriel can claim attorney-client privilege between the RIAA team and SafeNet simply on the excuse that Counsel may have been involved in the business negotiations. Since SafeNet isn't being sued, they aren't a client. Under Richard Gabriel's legal theory, every business contract that involved a lawyer in the negation (that means every business contract period) is protected by attorney-client privilege. I believe we know that this is not true.

As for other companies usurping SafeNet's secret methods and taking away their business, they could only do that if the RIAA were to dump SafeNet and contract for these same services with another company. There is no other RIAA client out there for SafeNet to lose their business.

As for file sharers being able to avoid SafeNet if they knew of these "secret" methods, this is vital information to discover because it's a red flag admission that SafeNet's procedures are far from perfect. But until you know just how far they are from perfect, they are assumed to be perfect in the court room.

Lastly, Richard Gabriel whines that you're only using discovery to get fodder for your blog. Of course, they only use discovery to extort anyone they wish to declare guilty of copyright infringement, in the hopes that all those people will just pay up nicely, rather than fight them in court.

-DM

Alter_Fritz said...

Note that at the time of my first posting February 27, 2008 3:33:00 PM EST there was no indication that third party counsel also filed papers. So I guess my question is obsolete then.

One comment though!

What a *beep* is this counsel for MediaSentry (if indeed he is the author of his piece which I highly doubt!)?

It was Counsel for plaintiffs' that introduced the vitriolic blog argument/reference without actually naming RIvsTP as that blog!

Mr B. did not described (t]his blog as vitriolic! Neither "proudly" nor otherwise.

What he did was writing an clearly marked Editors Opinion stating:
To the extent that [some part of plaintiff's comment] was directed at "Recording Industry v. The People", I would like to make the following clarifications: (a) I confess that "vitriolic" is a good word to use to describe the feelings I have towards the unprofessional behavior of the RIAA attorneys. "Detest", "contemptuous", "outraged", "appalled", "repulsed", and "sickened" also come to mind[...](emphasis added)

I read from his ED OP that Defendant's counsel described HIS FEELINGS, not what the blog, that reports about and "makes available" plain factual courtfilings, is about.

About Mr. Mullaney's other accusations I'm lacking the knowledge/search results to say how he comes to the accusations that Media Sentry is "fabricating evidence" and that such a behaviour was reported by the blogowners.
I guess some slander lawsuits against TMM might be appropriate in the near future.

zi said...

Ray, I'm a little confused here, and perhaps I'm not the only one. How can plaintiff's lawyers claim that SafeNet is a non-party to this complaint? They've said this twice now. MediaSentry conducted the "investigation". Is changing your name and using an f/k/a all you need to do to become a non-party?

Alter_Fritz said...

zi,
its not that SafeNet is a non-party because they changed their name or that they are further known as MediaSentry which gives them non party status in this initial action. (That would be then really realyl much too rediculous even for american law, wouldn't it?!)

No, They have the non party status, because They are not the ones that sue the people for copyrightinfringements.
The -nowadays for distribution purposes technicly obsolete- "evil4" that for so long has "legally stolen" the music/the copyrights from the artists/the public are the parties in the action.

SafeNet/MediaSentry will only become a party in a seperate action if its "the USA vs SafeNet" in a criminal court for operating as an PI without license or in a seperate civil case "defendant in a RIAA-case vs SafeNet" like what seems to happen in the Andersen incident.

Hope this helps, and keep in mind, I am not a lawyer, not a law student, and not even an american and have no more background knowledge about your lawsystem then what I have learned from hanging around on this blog and reading the provided links blogowner gives. so take above explaination not only with a grain of salt but with a handfull of it.
Nnone the less I'm confident Ray will correct my analysis if its seriously flawed; see his comment rules about pseudo legal advice ;-)

Ray Beckerman said...

Yes MediaSentry is a nonparty witness in UMG v. Lindor.

In the prosecutions it will be a party.

Anonymous said...

Imagine that this was a slander case. The plaintiff has an audio recording of the supposed slanderous comments, which the defendant believes is a recording of a sound-alike. In such a case, would the judge allow the defendant to subpoena the plaintiff's method of obtaining the recording? Surely there's some burden of proof on behalf of the plaintiff to show that the recording is actually of the defendant.

It's the same situation here. The whole basis of the case is the "proof" that MediaSentry have that the defendant was distributing copyrighted material. Such digital records are fairly easy to fabricate, and there's a definite possiblity that a mistake was made during the evidence gathering stage.

Is it possible to argue this to the judge, that you need to verify that the evidence is correct, and that the only way to do that is to (a) get information on the methods used to gather the data, and (b) get information that those procedures were followed correctly?

-Jamie