Sunday, July 06, 2008

Michigan agency investigates MediaSentry, MediaSentry responds

In Michigan, where a complaint has been filed against MediaSentry for its unlicensed investigations, the agency regulating investigators has written to MediaSentry, and MediaSentry has responded.

We recently obtained copies of the correspondence.

February 22, 2008, and March 31, 2008, correspondence

Commentary & discussion:

Afterdawn.com




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

20 comments:

Anonymous said...

"SafeNet is simply not involved in the private investigation activities associated with companies like Pinkerton's, who might surreptitiously follow and
photograph individuals for whatever reason." Now that is an interesting quote. If their activities are not considered surrpetitious, why don't they announce themselves to those whose computers they are monitoring? Lack of ethical standards is very obvious, but then, look who they are working for.

OldPhart in Kansas

Eric said...

IANAL.... "Notably, no defendant in any copyright infringement action is prejudiced by the extension of these exceptions to SafeNet, because that party will have ample opportunity to examine SafeNet witnesses on any appropriate topic."

Open foot, insert mouth. This will be a fun quote for the next suit when they turn down reasonable discovery again.

Anonymous said...

I don't live in Michigan either. So I guess that I can write to people in Michigan under false pretenses, lure them into writing letters to me, and examine the letters and see if they talk about any property that my employer owns. I then plan to forward these letters to my employer so he can sue them.

Thanks MediaSentry! Glad that I don't need a license to do this either!

Macros said...

Eric: I was going to comment on that same line.

If I recall correctly, SafeNet/MediaSentry/RIAA have desperately protected "SafeNet witnesses" (ie. investigators) from being deposed.

They still make the claim about being under direction of an attourney, as well.

Anonymous said...

One detail stood out for me, simply because I read an article about internet routing a few days back:

"Moreover, SafeNet has no personnel, offices, real estate or bank accounts in Michigan used for the purposes of data collection, or any other purpose. In fact, because the copyright infringer projects its IP address, inter alia, out of Michigan and to the entire world, when distributing music files, SafeNet respectfully asserts that it never comes within the State of Michigan in the course of its business."

First, the internet routes you through the fastest way between source and destination, not the magic route you decide to take. The article I read (which eludes me now) used an example in 2 computers in the same house using different ISPs getting routed through a German hub. The house was in England. "We never came within the State of Michigan" doesn't fly because you can't check every packet's route OR refuse routing if you do cross into Michigan's border. For that matter, if the "infringer"(unconfirmed, of course) is projecting an IP, isn't SafeNet "projecting" their investigation? Oh, and there's that little matter of their request of the local ISP (in Michigan perhaps?) to divulge information for an investigation.

Second, SafeNet claims exemption because they're apparently similar to Geologists, Chemical Engineers, and Surveyors. Never mind that those are all professions that require licenses to work as such, have a governing body to which they are accountable, and have an ethical standard. SafeNet seems to have refused to take ANY license in ANY state to my knowlege, has no governing organization to certify or verify any findings, and has proven to have flexible ethics when it comes to actually being accountable on the stand. At the time of this post, to my knowlege, the body governing licensing to computer forensics had repeatedly been rebuffed by MediaSentry in a "we don't need no stinkin' license" manner.

Third, "...SafeNet's operations are conducted at the specific direction of an attorney, which brings SafeNet within another exception to the private investigator's licensing requirement in Michigan." This blows any doubt that they are operating at all independantly out of the water. Any arguments as to their status as an agent of the RIAA, which should have been laid to rest by now, are now moot. Here it is in black and white.

ZH

Douglas Perkins said...

SafeNet claims it doesn't operate in Michigan. I suppose downloading files from a computer in Michigan counts as operating in Michigan. Nice.

Anonymous said...

"Specifically, SafeNet provides a litigation-support service to the Recording Industry Association
of America ("RIAA"),"

"Moreover, SafeNet's operations are conducted at the specific direction of an attorney,"

This is a point that has bothered me for some time:

Is RIAA practicing law?

Kip Patterson

Anonymous said...

As I read the ruling in Michigan, it allows professionals to practice their profession without requiring them to get a PI license just because their profession takes them into court. I've been in that position, and it certainly makes sense.

On the other hand, the law requires a firm that is in the business of investigations to be licensed. SafeNet may not use the traditional tools of a PI, but it is certainly invading the residence of the prospective defendant. I see little difference between what they do and a PI that uses a telephoto lense to catch someone in a no-tell motel. The RIAA argues that this new technology doesn't fall under the law. Compare that to the elasticity they are demanding of copyright law.

Kip Patterson

Rick Boatright said...

Geologists, Chemical Engineers and Surveyors do not report on the actions of individuals. They report on "the state of the universe."

It would have been better for him to use mechanical and structural engineers for his example, but there, you fall into the whole "yeah, but they're licenced and regulated" thing....

Russell said...

MS again claims executive privledge. the rules don't apply and even if they did, what we are doing is so important that you should ignore them.

Anonymous said...

If SafeNet were to make survey for possible copyright infringers in the great state of Michigan from their home state. Then, having located potential targets, made telephone calls from their home state into Michigan to the homes of these suspected Copyright Infringers and attempt to trick them into admitting incriminating information for a future lawsuit while recording the call without giving notice of this recording process, all without ever revealing that they work for the recording industry under the direction of their lawyers, and collect a fee for this service afterwards, would they not require a Private Investigator's license?

Is what they're doing here any different?

Also, although SafeNet claims no presence in the state of Michigan, can the RIAA and the recording industry overall make that same claim? If SafeNet is their agent, does this sufficiently remove SafeNet from committing incriminating acts that would be clearly illegal (by their own lawyer's admission) if they had a presence in the state?

One must also comment on the logic that the alleged copyright infringer projecting its
ip address, inter alia, out of Michigan, and to the entire world. If that is to be assumed true, then does not SafeNet also project its own ip address(es) to the entire world, and hence should be guilty in every jurisdiction that has an Internet connection?

I would also note that P2P systems are not push systems in the Internet technical sense. They do not broadcast or push content to other connected computers. You have to come looking for the information. This means that the lawyer here clearly does not know what he is talking about in a technical sense of the operation of the Internet. (Note: there are Internet broadcast systems to do perform this exact function, however, P2P isn't any of them.)

Lastly, the attorney for SafeNet asserts that: "SafeNet respectfully asserts that it never comes within the State of Michigan in the course of its business." This clearly contradicts his earlier statement that SafeNet is available for litigation support (one assumes appearances in court in the state of Michigan for which they will be paid) as well as depositions likely conducted in the state where the alleged acts have occurred. How you manage that without coming into the State of Michigan in the process eludes this Common Man's common sense.

Finally one is left to wonder also how helpful these blog comments have been to the lawyers (not just Ray, but including Ray) in picking apart the flawed technical and logical arguments used by the recording industry and the RIAA lawyers? How much of a difference are we making here?

{The Common Man Speaking}

RedShirt said...

I especially love the part:

and would play a limited role in the eventual litigation that the RIAA members
might bring against infringers of copyrights in certain music being illegaliy distributed over the internet. {Emphasis mine}

Limited my rear end! Without this technically incorrect data from SafeNet, RIAA wouldn't have any case whatsoever! Unless you count suing computer illiterate grandmothers, the homeless and dead people.

On a lighter note, Keep up the work Ray 'cause we can only hope these buffoons eventually dig a hole so deep the judge will have to FedEx the sanctions/penalties to them!

Anonymous said...

MediaSentry seems to deny the fact that they Secure "evidence to be used before a court board, officer, or investigating committee." (including IP addresses and catologed list of music). I guess they do not care who or what they lie about. If they play such a minor roll in the investigations, then mabye the RIAA should pay them less for their sloppy work.

RTP said...

Like many others, IANAL, but I am wondering if the letter from Mullaney has opened up another can of worms for SafeNet by using the term "expertise"...

"SafeNet utilizes technical expertise
in gathering factual evidence"

Anonymous said...

Assuming their citation to 1989-1990 Mich.
Op. Atty. Gen. . 263 1989 WL 445979 (Mich.A.G.) is correct, they still don't fall into the"factual information gather[sic] by application of technical knowledge"

In the example cited, a technical expert is hired to study evidence already obtained, after an incident (in this case, a fire). Here, MS/SN essentially creates the case, by generating "evidence" where none existed. Whereas a fire investigator may provide hints and facts about how a fire started, or what types of accelerant were used - MS/SN starts the fire itself, and then provides evidence of the fire to the RIAA for hire.

Q

friend of this blog said...

It is funny that Safenet argues to Michigan authorities that it is not subject to Michigan license laws because it has no facilities there. Michigan should make them show their licenses in the states where they do actually have a physical presence. They don't have any licenses in those states.

dts said...

Perhaps we could also say that since SafeNet uses information that is "publicly available", they're essentially saying that they use information that any half-wit on the street could just as easily find and present to court.

So, is SafeNet as credible and believable as a half-wit, or is that the other way round? Or are both equally as good, or bad?

Ray Beckerman said...

Well folks your comments were very helpful to me, I've put together some of the contradictions.

Ray Beckerman said...

Anonymous Kip Patterson writes:

"
Is RIAA practicing law?
"

Answer: no. In fact even their lawyers aren't practicing law.

Anonymous said...

Regarding RIAA and practicing law:


"Is RIAA practicing law? "

Answer: no. In fact even their lawyers aren't practicing law.



Heh... I'll bet the insinuation that they're practicing law is at least faintly insulting to you. I know if I were an Attorney, I'd be ashamed of being associated with that lot.