Sunday, August 24, 2008

Linares declaration evolving to evade detection?

One of our readers, who wishes to be known only as "Concerned Citizen", did an analysis of the Linares declaration filed recently in LaFace v. Does 1-7 in Michigan, comparing it to the Linares declaration used in an earlier Michigan case, LaFace v. Does 1-5. These were Concerned Citizen's findings:

There are some changes that have been made in the Carlos Linares Declaration from last September 11. 2007 (LaFace v. Does 1-5 NMU) and the Current July 8, 2008 LaFace v. Does 1-7 U of M. version. They include the following changes.

(1). "I am an attorney and...", to Linares opening statement. Not a big surprise , but per Michigan's new Professional Investigator law, the attorney needs to be licensed to practice law "in Michigan" in order to exempt an investigator for the requirement of licensing.

(2) the Addition of "Allows users to further distribute files to other users..." in paragraph # 7 section 4

(3) the addition of "In some cases more that one computer can access the internet over a single IP address by using Network translation..." in Paragraph 12 page 5

(4) Removal of the word "Illegal" and "downloaded music files" from the most recent declaration Paragraph 15. In the September 2007 version as Linares referred to the copies as "Illegal copies of sound recordings", but that language has now been changed to "copies of sound recordings" (the word Illegal does not appear in the most current declaration anywhere that I could find)

(5) Replaced the term "Offered for download" and "were offered" with "Distribute" the new boilerplate language.

(6) Added a new paragraph # 24 to the mix claiming that "...Fourth, computer evidence by its very nature is subject to being overwritten. At times, plaintiffs have sought evidence from defendants computers only to find that the evidence of infringement was destroyed (intentionally or unintentionally). Expedited discovery is critical to allow Plaintiffs to put Defendants on notice of the need to preserve the electronic evidence and avoid the loss of evidence.



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 portable music player

8 comments:

DreadWingKnight said...

Curiouser and curiouser.

Almost sounds like they're hiding something.

It's definitely worth bringing the changes to the attention of the court.

Anonymous said...

I don't understand. It sounds like Linares is simply fixing weak points from his old declarations. This is worth noting if you're a defendant under an old declaration, I imagine, since you'll want to attack the old weak points. But I don't know what you mean by "evade detection".

XYZZY

Friend of this blog said...

I don't see how the new version of the Linares declaration solves RIAA's problems with SafeNet f/k/a MediaSentry because he still says that RIAA hired the investigator, not him as an attorney. Also, in paragraph 18 he still claims RIAA listened to the files and confirmed they were "illegal copies," which is ludicrous since they have no technical way of doint that. They have never demonstrated that any file they saw in a shared folder was unlicensed. See Bestavros declaration in Arista v. Does 1-21, D. Mass. In that case, in spite of many pleadings following the Bestavos declaration and related pleadings by Doe, RIAA has never even tried to refute Bestavros's opinion. Yet they go on la de da making the same false statement in all of the Linares declarations. Over the eyes of how many more judges can they pull the wool and get them to sign the expedited discovery orders?

Igor said...

I wouldn't use the word "evolving" as much as I would say "intelligently designing" :)

Scott said...

igor: No politics please. :) (rofl)

Anonymous said...

Ray,

I think paragraph 4 in the "new" declaration is more troubling for Mr. Carlos Linares.

If I understand the paragraph under the rules of English grammar, it appears Mr. Linares is admitting participating actively in the investigations.

If this is so, and Mr. Linares, is not a licensed attorney in in the state the defendants reside, I believe a Private Investigators license would be required. For MI, CA and Washington, D.C., none of the BAR's have any record of a licensed attorney by the name of Carlos Linares.

If Mr. Linares, is an attorney, doesn't he need to state where he is licensed? In order to submit an affivadit in a state he is not licensed in, doesn't he need the Court's permission prior to appearing?

Inquiring minds have questions for Mr. Carlos Linares.

Regards,

blhseawa

Anonymous said...

To follow up on blhseawa,

When MediaSentry investigates, there is no case in existence. Only *after* it finds data and gives it to the RIAA is a suit filed. So at the time of the investigation, even if Linares is overseeing (which he does not claim), it's impossible for him to be acting as an attorney. Not that that matters, since he states MediaSentry doesn't work for him.

-grue

Albert said...

If these cases go to Court, at least one or more of these unlicensed investigators are going to have to show up at the Federal Courthouse in Michigan to testify.

I would love to see them get arrested at the Court House. After all, my understanding is that unlicensed investigation is a criminal offense. Their sworn statements in these cases will go a long way in proving that the Michigan PI laws were being violated.

Albert