Monday, August 11, 2008

University of Michigan Student Files Complaint against MediaSentry

We have learned that there are now at least three (3) cases pending against MediaSentry in Michigan's Department of Labor and Economic Growth.

In addition to the Kruger case, involving Northern Michigan University, and the Central Michigan University case, there is a case that was brought by a student at the University of Michigan, Case no. 162983070 v. MediaSentry.

The Kruger case is the one in which MediaSentry's lawyer made representations to the DLEG which directly contradicted representations he'd made to Judge Levy in UMG v. Lindor a month earlier.

Complaint

Commentary & discussion:

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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

10 comments:

Anonymous said...

Why doesn't Media Sentry just get the darn license? Certainly they can't be that expensive. Are they perhaps afraid that their they can't pass the certainly required background checks, or that they would then have to live up to the standards required by such licenses?

Given their caviler disregard for warnings, I would suspect that only jail time, along with having all evidence gathered by them in every case tossed out, will have any chance of changing their current ways.

{The Common Man Speaking}

Ray Beckerman said...

At this point in time I don't think they could get a license; their prior criminal conduct in carrying on an investigation business without a license would probably get in the way.

At this point they should be taking the Fifth.

Ray Beckerman said...

What I want to know is when is one of you defendant's lawyers out there going to take MediaSentry's deposition?

Alter_Fritz said...

So in case this millioaire that was sued by the MPAA for allegedly copyrightinfringement has $4000 in his pockets just to show what greedy criminals the record companies are.
Here are the terms of the settlement against the unknown doe from main uni.

If I had the money, I would have completed the "online settlement" now and then this student could sue them for clearly extortion since it is then obvious that they don't care who is infringer or not, but just that they get money fast!

We have found your case. (Case ID # 162983070 )

The copyright holders are willing to settle the claims against you online now on the terms contained below. Please carefully review these terms. If you accept these terms, click 'I Agree' to indicate your acceptance and to proceed with the settlement

Terms of Settlement:

ID # 162983070

The following recording companies and their respective United States record company and record label affiliates and subsidiaries involved in the marketing and distribution of sound recordings (the 'Record Companies') own or control many copyrighted sound recordings that they allege you have infringed upon.: EMI Music North America, BMG Music, SONY BMG MUSIC ENTERTAINMENT (successor-in-interest to Sony Music Entertainment Inc.), Warner Music Group Inc., UMG Recordings, Inc., and Univision Music, Inc.

You and the Record Companies agree as follows:

1. You shall pay to the Record Companies the total lump sum of $4,000.00 by credit card. Your payment must be received by the Record Companies in order for this Agreement to take effect.

2. You agree not to infringe any sound recording protected under federal or state law, whether now in existence or later created, that is owned or controlled by any of the Record Companies. This agreement not to infringe shall include, but not be limited to, using the Internet or any online media-distribution system to upload or download the Record Companies’ sound recordings or otherwise to distribute or make available for distribution to others any such recordings, except pursuant to a lawful license or with the express authority of the Record Companies. You further agree to destroy all copies in your possession of any of the Record Companies' sound recordings that you have downloaded onto any computer hard drive or server without the Record Companies’ authorization and also to destroy all copies of such downloaded recordings that you have made onto any physical medium (e.g., CD-R) or device in your possession, custody, or control.

3. So long as you comply with the obligations under this Agreement, the Record Companies agree not to pursue claims against you for infringement of the sound-recording copyrights in any sound recording protected under federal or state law, whether now in existence or later created, that is owned or controlled by any of the Record Companies, based solely on your use of a peer to peer network to upload or download such sound recordings prior to the date of this Agreement. However, if you breach your obligations under this Agreement at any time, the Record Companies shall have the right, among other things, to assert copyright claims for infringement against you based on your infringement of any sound recording in which any of them owns or controls the copyright.

4. You acknowledge that we have advised you that you may consult with counsel of your choosing prior to entering into this Agreement and that you have entered into this Agreement of your own free will, without any promise or inducement not stated in this Agreement. You also acknowledge that your are at least 18 years old and are otherwise legally competent to enter into this Agreement. You further acknowledge that nothing contained in this Agreement constitutes an admission or denial of wrongdoing by you. The Record Companies each reserve all rights not expressly waived herein.

5. Your payment and acceptance of these terms by clicking on the 'I Agree' button below creates an enforceable contract binding on you personally. This Agreement is not transferable or assignable.

Ray Beckerman said...

"Anonymous" submitted a post, which I rejected, making an unsubstantiated accusation of criminality against someone. I have previously rejected posts making the same unsubstantiated accusation. If anyone is going to say that someone committed a crime, they should not say it unless they can substantiate it.

I'm wondering if the submitter is working for the RIAA.

David Donahue said...

"Anonymous" is working for the RIAA now?

Oh the Irony of that.

David Donahue said...

I'm no expert on this but as I understand it, Media Sentry (as a corporation) cannot get a private investigation license in any state, only it's individual employees could. Media Sentry could then employ these individual investigators to conduct surveillance and gather information in any state in which that individual employee is licensed.

For each case, evidence gathering methodology, chain of custody and similar issues would have to confirm to the relevant state law standards where the investigation occurred.

The reason Media Sentry probably doesn't go and pay for it's employees to go get these PI licenses is that the licensing requirements are very tough and it's likely that none of their employees could qualify.

The Private Investigator directory says this regarding getting a PI license in California: the California Department of Consumer Affairs requires private investigators have a combination of education in justice, criminal law or political science and investigation related work experience equal to three years or six thousand hours. The candidate must also pass a criminal history background check by the FBI and California Department of Justice and receive a sufficient score on a written examination covering regulations and laws.

Media Sentry's existing employees are probably technical folks and management types and don't have the background to qualify. it would take several years to get the required training and experience and then pass the exams.

Franky its more feasible that Media Sentry would partner with an existing national Private Investigation firm that already has licensed private investigators in every state.

The problem MS would then have is that it makes their initial investigations much more expensive and the "PI's verifiable facts" would much weaker. For example: they could testify that they personally witnessed a bittorent client/server monitoring screen showing that a computer at IP: 127.0.0.1 was seeding a torent of a RIAA member's song. They could then claim to use a customized bitorrent client (that downloads the whole song from just one user) to download the song. Now the PI is a witness to an actual event of infringement and distribution. The contracts with the PI firm could be written in a manner that specifically does not name them as a authorized agent of the content owner, so unauthorized distribution would have actually taken place.

MS has whole host of problems with using this model though. First off it costs way too much for the RIAA to break even with any amount that folks would be willing to settle for (ask for $4k and some will go for it, ask for $15k-20k and most folks would go to court).
Another problem is that the above example is for just one song, not dozens. Using this method it could take days and days to download a significant percentage of the kind of infringement the RIAA now commonly claims.

It's also likely that most of the computers detected offering torents won't actually upload any whole songs (just data fragments) to anyone due to it not being running long enough to do so.

Also it would be trivial to modify bittorent clients (like utorent) to stop this exclusive client download behaviour.

I think that since MS can't do what is right and legally required and still make money on the settlements, they fluff their data, conclusions and identifications. They use untrained and unlicensed investigators to use untested, uncalibrated, secret and proprietary software to make observations about activities that are not actual violations (offers not distributions) and then print logs to a file which is then read by someone unfamiliar with the actual case at a deposition.

There is an interesting article at PrivacyRights.org that discusses what a PI can and cannot do in California as as:
[regarding] Undercover [Private] Investigations
California case law indicates that:

(1) The PIA prohibits investigators from misrepresenting themselves or their principals--whether the misrepresentation occurs affirmatively or by silence and whether or not an investigator actually lies. Violations of this prohibition my lead to suspension of or other action against the private investigator's license.

(2) Evidence obtained as a result of misrepresentation might be excluded in civil proceedings.

(3) Victims of torts related to misrepresentations may seek damages against investigators.

(4) Victims of intentional torts may seek damages against attorneys or others hiring the investigators.

(5) Victims of negligently supervised or entrusted investigators may seek damages from attorneys or others hiring the investigators.


These sound to me like what Media Sentry is claiming to do and how California law would be applied in these cases.

Scott said...

Following up on David's excellent comment regarding California law: Has anybody gone after Media Sentry / SafeNet directly for damages relating to unlawful activity, misrepresentation, or libel?

I've wondered about this before in the comments: If this unlicensed private investigator libeled me to the RIAA, it seems to me that suing them for the libel would be the first thing to do, not the last. But then IANAL so I don't know if this is a reasonable option.

Alter_Fritz said...

Well Scott,
While the world at large knows that america has some rediculous laws and you guys are so sue happy that even a guy that is against downloading of one of his song has made a song regarding this special american behaviour named: "I'll sue ya!", I don' tsee where mediaSentry can possible has libled you. They don't tell the RIAA your name and say bad things about you, they just have an IP address.
Your ISP that gives the RIAA a name that they can sue might a target for your libel uit, but on the otehr hand, they will claim they don't accuse you of doing anything wrong, they accuse you jsut that you are responsible for a certain IP at a certain time.

I doubt that a judge will agree with you that your ISP saying you had a certain IP at a certain time is libel.

David Donahue said...

Alter_Fritz,

I believe the libel that is commonly committed by Media Sentry is that they say they "detected an individual" (meaning a person) when in fact, they "detected the state of a computer".

This computer state (that it's offering torent data fragments of RIAA songs) may or may not have been created by an individual. It could have been created by a virus, a hacking program or by a configuration error.

It's also extremely difficult (without a witness) to prove that if it was "an individual" that that individual is the defendant.

I think you could also say there is another Libel, for the RIAA is making false assertations to the court that the identity of Media Setry's "individual" can be determined if only the ISP's DHCP server logs can be pulled for that day, when in fact these logs are very error prone and only identify PCs not people. DHPC server logs are also not designed for even identifing computers. They aren't clock syncronized with the Media Sentry Detection PC (a key/important feature) and likely contain critical gaps and errors and are easily subject to external manipulation (anyone in that part of the ISP's network can send DHCP requests with anyone else's computer's MAC address).

A decent analogy for a ISP's DHCP Server log would be would be a camera with poorly maintained timestamps on the images, pointing at the parking lot of a store. Now imagine there was a crime at that store and a monitoring company detected that crime with their own poorly maintained time-stamping monitoring PC.

By matching the two inacurate timestamps down to the second (the camera and the PC) they get a picture of a single car in that lot. By tracing the ownership of this car, they claim that "by information and belief" that I (the owner of the car) committed the crime, when in fact my wife was a innocent customer of the store 20 minutes previous to the crime (that day, the PC's clock was 11 minutes fast and the camera's time-stamp was 9 minutes slow).

You can thereby conclude that by the RIAA and Media Sentry making these false written assertations to the court that they know to be flawed, the defendant has been harmed financially and his/her reputation damaged. That's what Libel is all about.