Wednesday, July 09, 2008

MediaSentry's statements in Michigan administrative case contradicted by prior statements in UMG v. Lindor

You may recall that several days ago we posted some correspondence between MediaSentry's lawyer and Michigan's Department of Labor and Economic Growth, in connection with administrative proceedings in Michigan over MediaSentry's being engaged in investigation without a license.

MediaSentry's lawyer replied that

SafeNet's activities fall squarely within the 1989 Opinion of the Michigan Attorney General, Frank J. Kelly, which excepts persons who are providing testimony in a lawsuit based on factual information gathered by application of technical knowledge. See 1989-1990 Mich. Op. Atty. Gen. . 263 1989 WL 445979 (Mich.A.G.) (the "Opinion"). The Opinion expressly cites the example of a chemical engineer who took photographs of, and samples from, the scene of a fire and from them prepared exhibits for use in Court. See id. The Opinion also included physicians, geologists and surveyors in the category of those who ought to enjoy the exception. SafeNet utilizes technical expertise in gathering factual evidence for use in just the same way as those other professionals, and thus enjoys the same exception. (Italics supplied)
Just for the heck of it we dug up some of their statements, and the RIAA's statements, from UMG v. Lindor, directly contradicting those representations, and representing to the Lindor court the exact opposite: saying that MediaSentry didn't rely on its technical expertise at all, but was just doing what any other Kazaa user does:

Excerpts from 3 documents in UMG v. Lindor denying that MediaSentry relied on its technical expertise.

[Ed. note. These people will say ANYTHING. Now let's hope that the Lindor court finds out about what they've been saying in Michigan, and the Michigan authorities find out what they've been saying in Brooklyn. -R.B.]

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28 comments:

Anonymous said...

Looks like the hammer is about to drop on all of their lies.

Can't stop laughing . . . Nope, still laughing . . . Yep, probably still laughing tommorrow and the next day . . .

Thank goodness for people like Ray who work within the rules and still manage to get morons like these people to paint themselves in a corner.

Is there anyway to absolutely make sure that these inconsistencies get pointed out to the respective judges?

Anonymous said...

I sure hope someone is forwarding this to Michigan's Department of Labor and Economic Growth.

Q

Anonymous said...

I wonder.

Would it be inappropriate for interested readers here (non-parties) to offer input regarding these two matters and send highlighted copies of MS's conflicting public documents to the Michigan admin office and the court case to bring attention to these conflicts?

I suppose worst case they'd ignore them and I suppose I might bring RIAA wrath down on myself and get subpoenaed or something.

-Harod

Anonymous said...

The plaintiffs LOVE to talk out both sides of their mouth, not only with the Lindor case and this new Michigan administrative case, but with everything they say. How can a lay person bring this information to the courts so a judge can see they will say whatever they feel the need to say to extort money?

T

Anonymous said...

Ray, is it permissible for you as an attorney to call these things to a courts attention or in the alternative to notify both attorneys in a case to information that may be important to the case?
Barlow.

skeeter said...

Maybe the people at SafeNet are mutants who undergo some sort of metamorphosis to adapt to certain situations. They can change from ordinary Kazaa users, to protect their work-product, to experts like an engineer to cloak their private investigator appearance. I have to meet these people. But then again I may have and didn't even know it.

Anonymous said...

MediaSentry lies, and this is news why...?

It's the same thing Comcast is doing (see ArsTechnica) where they tell the FCC that it doesn't have the authority to regulate their "traffic shaping", while they then tell the California court where they're being sued for exactly that, that it's not Comcast's fault because it's all in the FCC's hands. And, unsurprisingly for readers of this blog, the California judge has bought it and put that case on hold indefinitely.

Estopple anybody?

XxX

Ray Beckerman said...

This is in response to anonymous XXX's statement "MediaSentry lies, and this is news why...?"

I know you were being tongue in cheek, but please don't make comments about the newsworthiness of litigation events I publish. This is not that kind of publication. If we delight and entertain, fine. And the RIAA and its attack dogs do supply us with plenty of entertaining material....but......

The purpose of this blog is to make all significant information about what goes on in these cases publicly available. Some of it is entertaining; some not. But this blog is based on the premise (and the past 2 1/2 years have proved the premise to be correct) that making this information public would nullify one of RIAA's strategic advantages, the monopoly on information which it used to enjoy, but no longer does.

Jadeic said...

I suppose some public-spirited person could email each judge a copy of the relevant correspondence ... That said, I would be somewhat disappointed to learn that they do not already read this blog.

I know that this legal profession of yours can be pretty esoteric at times but it sometimes seems as if the judges involved act a lot like Worzel Gummidge with his set of interchangeable turnip heads - each head allowing Worzel to perform a certain skill or to suit a particular occasion - so that, as they step in to court proceedings, they take off the normal human head and replace it with a judge head. Are they really so dislocated from what is happening out here in the real world - often under their very noses?

Dave

Alter_Fritz said...

more "this is news" the RIAA probably does not like!

"Victims of WiFi Theft Not Responsible For Illegal Uploads"

http://torrentfreak.com/victims-of-wifi-theft-not-responsible-for-illegal-uploads-080709/


That *IS* news! ;-)

Anonymous said...

it still boggles my mind as to why mediasentry just doesn't get the required licenses for all the US states... is it that expensive to do so?
It would save them so much embarassment having to say one thing to one group of people, and something else to another (or even say different things to the same group of people depending on the circumstance)

--talax

Albert said...

Their flipping positions at SafeNet reminds me of the old SNL skit of "Its a Floor Wax, NO it is a Dessert Topping".

From what Ive seen, both the RIAA and SafeNet say whatever is required to get away with a specific case.

My hope is that Michigan would go ahead and pass this case for Criminal Action. It would be very funny to me to see their SafeNet "expert", "fact witness" or whatever they are calling that person in the Michigan cases arrested when he/she shows up to court.

Nothing else short of arrest looks like it will stop SafeNet.

Albert

Douglas Perkins said...

Dear talax,

I speculate that trying to get licensed involves some examination of methods used by MediaSentry. Because methods used in the past (and now, presumably) are somewhat unreliable, this makes a problem for MediaSentry. It's also expensive, and so far they haven't faced any penalties for not being licensed.

Albert said...

Talax,

I suspect the true reason they dont get the required licenses is not because they are unwilling to pay the fees, but the simple reason that they are not eligible, or are unwilling to fund 50 states worth of offices and investigators.

As an example, this is the requirement in my state:

2) An applicant for a Class "MA" license shall have 2 years of lawfully gained, verifiable, full-time experience, or training in:

(a) Private investigative work or related fields of work that provided equivalent experience or training;

(b) Work as a Class "CC" licensed intern;

(c) Any combination of paragraphs (a) and (b);

We are likely one of the easier states, many states require much more than 2 years. Also there is a bond requirement which could get very expensive in 50 states.

Another expensive requirement is that many states including mine require an actual physical office location in that state, staffed by the holder of the Class "MA" license, as well as the class "C" and "CC" investigators, and does not permit anyone not licensed to perform investigations.

Albert.

Albert said...

Talax,

Looking more thru the requirements and the things we have been discussing here and wonder if MediaSentry/SafeNet could meet this standard from our law:

(7) "Good moral character" means a personal history of honesty, fairness, and respect for the rights and property of others and for the laws of this state and nation.

If I was the one deciding if they should get a license, I would refuse it.

Albert

Steve Glista said...

Apart from the self-contradictory statements they've made in various courts, there is another flaw in MediaSentry's response. Physicians, engineers, and surveyors are licensed professionals. I don't personally know about geologists, but if it's in the context of e.g. examining the rock that I'm going to build a house or bridge on top of, I'd want to see more credentials than a bachelor's degree from some diploma mill.

What licensing authority has evaluated and approved of Mediasentry's so-called expertise? Oh, right, they're unlicensed- that's the whole problem isn't it? No, an MCSE does not count.

Here's a free style tip from a second-year law student (this is not legal advice): generally it's not a good idea to call the court's attention to your fraud by repeating it in writing.

dts said...

I wonder what would happen if the judges decided to come together, bring together these claims of what the RIAA lawyers claim SafeNet is (or isn't), and decides that both statements are true...

Then proceed to say in UMG vs. Lindor that "Nope, you said that MediaSentry utilises technical expertise", and vice versa in the Michigan administrative case, to blow both their cases out of the water.

It's either this, or both judges penalise them for outright lying. One wonders; which d'you think hurts them more? Having their tactics exposed or having their tactics used against them?

MacIke said...

Albert,

Of course the real question is why not place a current state certified PI on retainer in all 50 states. Yes it would be expensive, just bill the RIAA.

Others,

I would like to see both judges penalize the RIAA for bad faith and find against them.

Ray,
Why is this news again? Of course it took me awhile to stop LMAO before I could write, thanks and KUDOS!!!

Albert said...

Macike,

That would not help them here, because ONLY A LICENSED PI may investigate in this state, and there is not an easy way to divide the work on P2P geographically. Plus, Im sure they would have to pay much more.

In many of cases, MS does not even know till after the subpoena is responded to WHICH state the target is in. Thus the investigator cannot pass the case on to the licensed investigator, since he/she would not know which state's investigator to pass the case on to. Also, since that initial look is "investigation" as well, they are already on the way to unlawful conduct BEFORE it was passed on.

bbsux said...

Ray, I wonder if this might influence the judge on the dismissal pending in "Lindor" Maybe someone should show him....

Anonymous said...

Excuse me Albert but, there are excellent IP location services available now. Haven't you ever logged onto a web page and had them offering auto insurance deals or dating services clearly identified as in your own home town? The only way MS doesn't know the state, if not the city or even actual zip code of any IP address they detect is if they are Intentionally seeking not to know this information - which would indicate a lack of due diligence, if not outright negligence on their part. They are like a teenager who breaks all the rules and doesn't know what his own limits are because nobody has slapped them down hard enough over this yet.

XxX

mhoyes62 said...

One of the other things is that they say they were doing this at the behest and in conjunction with a lawyer. Who is that lawyer and is he authorized in the state of Michigan?

meh

Alter_Fritz said...

albert wrote
"[...]MS does not even know till after the subpoena is responded to WHICH state the target is in. Thus the investigator cannot pass the case on to the licensed investigator, since he/she would not know which state's investigator to pass the case on to.""

That is FALSE!
(At least in all those cases where the ISP does some geographic routing of his IP pool and the Reverse DNS entry for the nnn.nnn.nnn.nnn IP number has some geographic component in it's name.)

I admit a reverse DNS entry like "hey.mpaa.and.apb.bite.my.shiny.metal.ass.thepiratebay.org" (*) as The Piratebay had for some time after they were the victim of an illegal MPAA action in 2006 does not say much about the location of an IP adress.
But a reverse DNS like "nnn.hsd1.ca.comcast.net" (CAlifornia) or "pool-nnn-nnn.dllstx.fios.verizon.net" (DaLLaS,TeXas) for example are quite clear and obvious where the IP address ends!

(*)
http://torrentfreak.com/the-piratebay-back-home/

A REAL Security Expert said...

Lets see:

Claim they are not an expert but are testifying on TCP/IP, MAC addresses, how Kazaa works and functions, how to deliberately track an IP down and tie it to a specific PC and user; if not an expert then this is all just speculation and hearsay based on what they "think" or "heard" is correct and is inadmissible.

Claim they are an expert but do not want their procedures or work product peer reviewed or verified via another experts review, yet offer it as conclusive 'evidence'.

All their personnel are titled "Investigator" and sell their services for "Investigation" purposes, deliberately and intentionally launch and conduct investigations to gather evidence to be used in a court of law, yet claim they do not need PI licensing. Their "Investigators" are not licensed professionals yet claim they are exempt from needing a PI license to conduct "Investigations".

Claim they can pinpoint a user/PC location and address, but no one addresses the fact that ANYONE can move a cable modem to any location on the cable network and use it from there. The MAC will show who the modem is registered to, but not where it is physically located at any given moment. Just that it is on and has an IP assigned.

And we won't even bring up the fact that anyone such as kids, a neighbor, a visitor, a workman in the home, etc. etc., can use your PC when you are not around or watching them.

They prey on the weak and those who cannot afford to pay exorbitant attorney fees to protect themselves from a baseless inconclusive law suit. They extort payment because they know it is cheaper to settle then to fight a prolonged costly court battle.

The courts need to stop the use of such tactics and focus on what they were meant for: protection and justice for all.

Anonymous said...

With regard to the whole P.I. aspect, how does this potentially effect the RIAA?
http://www.pcmag.com/article2/0,2817,2324220,00.asp
(Texas computer techs need PI licenses)

Albert said...

Alter Fritz,

I know in the case of my ISP, their default reverse DNS entry is simply the last 2 digits of the IP, followed by the name of the ISP. They serve the 9 State Former Bellsouth region with the same IP pool for all.

I find the dating site and other such ads funny, as I am nowhere near Miami, but that is where they always geocode me to. It is even more amusing, since I have my own domain as my reverse, but that never gets looked up in the geocode vendors searches...

Of course this is trivial to me as a Network Admin. But do remember, SafeNet are just "fact witnesses" and are not "experts" so I would never expect them to understand any of this. :)

Albert

dts said...

Even better: when this anomaly is brought up in both cases, they'll probably attempt to state that the other case is irrelevant to the current one (i.e. They deny the existence or validity of their "investigator" statement in UMG vs. Lindor), or they'll try to call for exception (as they have tried for the courts to accept MS's unlicensed evidence). It'll bring about a double-double whammy when these arguments get picked apart.

Shane said...

My, my. Media Sentry is full of it. They say that people are free to cross examine their witnesses, except that they won't even tell Ray who any of the techs who worked on the case were. Their letter, IMO, is full of outright lies.