In SONY BMG Music Entertainment v. Tenenbaum, defendant has filed a motion objecting to the inadmissibility of MediaSentry materials on the ground of illegality.
Motion objecting to MediaSentry evidence
Commentary & discussion:
p2pnet.net
Keywords: lawyer 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:
May we add that because any investigation took place months before any litigation, and because no one except MediaSentry and the RIAA know what information was gathered, this is even more of an invasion than simply doing what any other user of a P2P network would do.
Based on previous cases I would say that this will be denied, but since it's Mass and they have a two party consent rule for recording electronic communications I say it's a slight chance that they will exclude it. While they were at it, why not throw the DMCA at them as well since there is no Media sentry exception for cracking encryption codes.
I'm surprised this motion contains no attempt to exclude the evidence because of apparent sloppy forensic techniques and errors that have been pointed out by others ( or would be a factual issue for the jury ).
Of course I can just see the RIAA's response... they are not PI's and therefore exempt from any regulation ( barring the fact that the Mass statues are pretty specific ). There is no expectation of privacy from files shared over the internet ( despite the fact that the network is "closed" ). Nothing illegal about monitoring and reporting on traffic that was sent to you ( despite the fact that it was requested by Media Sentry / Mass 2 party rule ).
Seeing as how this case is being held in Mass. where MediaSentry was found to be in violation of the laws of the state, and suddenly removed any mention of being a PI from its website, it could be a different story in this case.
Also its not the question of the fact that they monitored the communication but the fact that they were doing so for hire.
Every honest PI I've talked to about this case is seething since if they'd pulled these antics without a license they'd have been fined and barred from ever being licensed. They've got to submit originals, show how they were collected, certification of programs used, and yet MediaSentry walks into court and is allowed to say "We took a snapshot" without a judge ever questioning the accuracy of the programs used.
This man would like to know why the actual Media Sentry flunky, er Technician, who actually captured the data has never been identified, deposed, or called to testify yet? This is the only person who was actually at the scene collecting the data used in this case. He (or she) was most emphatically not under the direct supervision of an superior at the times involved.
Nor has the programmer(s) who created the highly secretive proprietary code used, or designed the data collection methodology, yet had any of the above happen to him, her, or them.
{The Common Man Speaking}
If this Court holds otherwise, the Internet will have no protection under the wiretap laws: any party could intercept TCP/IP packets — the packets that transmit all data over the Internet — without regard for legal consequences.
This man finds this a powerful argument that Media Sentry and the RIAA Plaintiffs CANNOT be allowed to do what they have been getting away with if any laws at all apply to private communications.
{The Common Man Speaking}
I've rejected some comments from people who think they know what MediaSentry does. In fact none of us knows what MediaSentry does. Even Doug Jacobson has admitted he does not know. And MediaSentry has fought hard to keep it secret.
So don't pretend to know what MediaSentry does; you don't.
If the Magistrate Judge in UMG v. Lindor orders them to respond to defendant's subpoena, then perhaps one defendant will know -- because then it will no doubt be subject to some kind of confidentiality order.
EVERY DEFENDANT'S LAWYER HAS TO SERVE DISCOVERY NOTICES AND SUBPOENAS OF THE TYPE I SERVED IN UMG V. LINDOR.
Common Man,
I would like to suggest what to me seems the most likely reason why the actual person who did the MS investigation has not been called:
He/She no longer works for them.
Of course an admission that this is a true fact could put a hurt in their case.
Also, I fail to see how a proper "chain of custody" can be done with the evidence without the testimony of the first person in the chain.
Also, as far as calling MASS a two party consent state, it is actually an ALL party consent state.
Like the state I live in, no recordings can take place without either 1) a Court Order or 2) Advance Permission of ALL parties.
Since it is quite clear the Defendant never gave advance permission, the recordings should be thrown out because of lack of permission. The Court might never have to reach the PI license issue because the lack of permission is even more clear in this case.
Albert
In the light of Donald's comments, I am surprised that the United States Association of Professional Investigators (USAPI) has not yet stepped forward with an amicus brief at any of these proceedings. The MediaSentry shenanigans cannot be doing their reputation much good at all.
Dave
In particular the Licensed Private Detectives Association of Massachusetts (LPDAM) which I now find is an associate member of the USAPI.
Needless to say, MediaSentry is not listed as a member company of the LPDAM.
Dave
Post a Comment