Wednesday, July 22, 2009

Motion to suppress MediaSentry evidence denied in SONY v Tenenbaum

Defendant's motion to suppress the MediaSentry evidence has been denied in SONY BMG Music Entertainment v. Tenenbaum.

Judge Nancy Gertner: Electronic ORDER entered denying [853] Motion to Suppress. "The Defendant raises a number of arguments why MediaSentry's monitoring was illegal under state and federal wiretap laws, as well as state licensing requirements for private investigators. See Mass. Gen. L. ch. 272, s. 99(A); Mass. Gen. L. ch. 147, s. 22. Given that MediaSentry did not conduct its monitoring from Massachusetts, does not maintain a presence in the state, and the computer on which MediaSentry detected Tenenbaum's file-sharing was located in Rhode Island at the time, Massachusetts' wiretapping and licensing provisions would not seem to reach the conduct at issue at all. See Connelly Aff. (document # 866-5); Cox Comm. Subpoena Resp. (document # 866-9). Regardless of which state's licensing requirements are invoked, the Court previously considered a similar motion to strike in London-Sire Records, Inc. v. Arista Records LLC, Case No. 04-12434, holding that "[n]either the rules of evidence nor the Fourth Amendment bar the use of evidence arguably unlawfully obtained by private parties in their private suits." Jan. 9, 2009 Mem. and Order at 3-4 (document # 230). Tenenbaum's remedy for a search he believes illegal under state laws is not exclusion of this evidence, but a separate action against MediaSentry or its employer under the state statutes he identifies. That leaves only the federal wiretapping provisions. See Electronic Communications Wiretap Act, 18 U.S.C. 2510 et seq. Here, Tenenbaum proposes a difficult analogy when he compares MediaSentry's activities to illegal eavesdropping. The Defendant made his computer's "shared folder" visible to the world of KazaA users, for the very purpose of allowing others to view and download its contents -- an invitation that MediaSentry accepted just as any other KazaA user could have. The electronic communications that ensued were conducted with the consent of both parties. As a result, it is bizarre indeed to describe MediaSentry's decision to examine and record its counterpart's IP address as eavesdropping, as though federal law prohibited MediaSentry from determining where the data sent to it from Tenenbaum's computer originated. It is as if one received a letter in the mail, but was not allowed to look at the return address.This principle makes no more sense on the internet than in the non-digital world, and it is not encompassed by the Act. The type of IP information transmitted by KazaA and recorded by MediaSentry is accessible to almost anyone with a computer. Even if viewed as an "interception" -- a characterization that the Court accepts here only as a hypothetical -- MediaSentry's monitoring activities fall within the statute's safe harbor for interceptions by a party to the communication. See 18 U.S.C. 2511(1), 2511(2)(d); see also R.I. Stat. s. 12-5.1-1 et seq. (one-party consent rule parallel to the federal statute). Tenenbaum transmitted the digital files at issue to MediaSentry, making it a party to the communication, and he has not shown here that any interception occurred with the purpose of committing a "criminal or tortious act" under state or federal law. Id.; see also Order on Motions in Limine, Capitol Records Inc. v. Thomas-Rasset, Case No. 06-1497 (D. Minn. June 11, 2009). The Motion to Suppress MediaSentry Evidence [853] is DENIED." (Gaudet, Jennifer)

Commentary & discussion:

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


Tim said...

"The Defendant made his computer's "shared folder" visible to the world of KazaA users, for the very purpose of allowing others to view and download its contents"

Couldn't this be construed as the judge having already found Mr. Tenenbaum guilty in her own mind, by implying that he is understood to have actively engaged in file-sharing, contrary to any arguments he might be prepared to make that he was not the one responsible, or did not take such actions knowingly?

Sebastien said...

It does show a pre-judgement on the part of the Judge.

Which is too bad, I really do like this judge over all.

I really wish people would focus not on (this evidence is ilegally obtained, but more on Where is Media Sentry's chain of custody, where is the proof that their logs/etc were not tampered with in the last 3 years. How does their system work, how does it pull information from Kazaa. How accurate is it, how do we know we're even looking at logs of files from Joel's computer during that time period.

These are the same questions I feel should have been asked in the Thomas case.

The exhibits I can see on this site for the Thomas case, have CLEARLY been edited by hand. There is information on them that makes no sense. There is also information on them that is incomplete. How do we know the media sentry evidence is real. For all I know it could be a complete fabrication.

I wish this line of questioning was being put to Media Sentry. They should have to prove that the evidence they have is good enough to destroy someone's life. Especially given that the awards here are ludicrously large.

The Maximum fine for an individual who breaks the Consumer Products safety regulations is $250,000.

This is for distributing a product that can actually harm or kill people. The RIAA gets to ask for up to $150,000 per song?

With punative damages that high, Preponderence of evidence should NOT be good enough. These are criminal cases in all but name, and should be handled as such.

Jadeic said...

I am as frustrated as Sebastien that, as important as the illegality of MS activities in these cases is, it is a side issue. The focus should be on the reliablity of their findings as they are presented in the plaintiff's submissions to the court. This is exactly where the 'access to the internet' could play such a significant part in these proceedings. If either party does manage to recreate accurately a P2P scenario from circa 2004 then it will become immediately apparent that the screen shots submitted as evidence by the plaintiff have been edited which throws open the whole issue of MS's chain of custody.

Eric said...

@Tim, devils advocate might point out that Tenenbaum's use of KazaA has been admitted and agreed to as a matter of fact. So has Tenenbaum's knowledge that others were downloading music from his shared folder.

Anonymous said...

Why does the court always accept MediaSentry's investigation as limited to a shared folder? This company was founded by former National Security Agents, and there is no evidence to show that they only limit their intrusion to shared folders on a p2p network.

The Common Man Speaking said...

Does this ruling mean that if this man can figure out how to tap telephone calls made in one state from another state that he's completely in the clear with using whatever he hears on them?

One way to show absurd judicial rulings is to show the full effects of them.

This judge is completely wrong in this aspect of this case.

Shane said...

"Does this ruling mean that if this man can figure out how to tap telephone calls made in one state from another state that he's completely in the clear with using whatever he hears on them?"

Well, actually, that is partially the case. Recording calls requires the consent of 1 or 2 parties, depending on the state. It is legal, to the best of my knowledge, to record a call to a 2 party consent state if you are one of the parties and record it a 1 party consent state. I'm unsure of the admissibility of such recordings if brought back to the 2 party state, especially if somebody went to the 1 party state for the sole purpose of avoiding the 2 party consent law for purposes of making the call.

However, that isn't analogous to the Media Sentry case, where they are operating without a license in any state in the nation, neither in the state they or their technicians were located in nor in the target state, so such an arbitrage of laws doesn't create an easy out for Media Sentry, not that the judge cared in this instant.

Anonymous said...


The problem is that Defendant brought up the wrong state's laws. Surely the judge would look closer at laws from MediaSentry's state or from Tenenbaum's state.

In fact, since the RIAA argued MediaSentry wasn't acting in Minnesota in the Thomas-Rasset trial (though I personally disagree with their claim, and much more importantly the issue hasn't gone through appeal yet), the easy angle might be MediaSentry's physical location.


Russell said...

"Does this ruling mean that if this man can figure out how to tap telephone calls made in one state from another state that he's completely in the clear with using whatever he hears on them?"

A. It doesn't mean that you can use a third states laws to claim a violation. Although the case is in Mass, it is in Federal court not state, and all of the activity happened outside the state. Unlike the Thomas case, this seems a no brainer.

B. Wire tapping in a seperate federal law and the conditions that apply are pretty specific. Evidently one of them is that it doesn't apply if you are a party to the conversation. That is not the scenario you posit.

C. I thought it interesting that as an case between two private parties, evidence gained through illeagal means is not inadmissable.

This case can only be won on the basis that the exact terms of the copyright law were not violated (the reporduction right)

It won't be argued on that basis, and considering the evidence, the legal team and its motives, and the lack of a proven defense, I expect that the case will go the same way as Thomas.

When you are arguing about the law instead of the facts, you are in trouble.

Sebastien said...

Like I said Russell.

It's not whether the Media Sentry evidence was illegally obtained that should be the center of the Media Sentry objections. The focus should be on whether or not the evidence has been properly maintained and is actually genuine evidence, and not edited and questionable.

Go look at the Plaitiff's exhibits in the Thomas case. They have "log files that have a few problems in them.

1) it has her NAME in one of them (which is clearly impossible)
2) one of the reports looks like it was manually edited (how we don't know)
3) some of the data that was supposedly collected is just dubious at best.
4) They maintain that their Methodology is a trade secret and protected.
I'm sorry, if you're going to be using this evidence to destroy my life over $30 worth of music, you don't get to use evidence with no chain of custody, no verifiable reliability.

It's like if I presented a video of you going out and shooting someone. But, I would not allow anyone to review it to see if it was a valid video because how the video was recorded was a trade secret.
Noone would stand for that, especially today where we know it's easy with the right technology to doctor video.
Text files are trivial to doctor, and yet the RIAA wants us to take them for their word that the Media Sentry process is infalible. Even though it has sued dead people and printers before.

Russell said...


I agree, the chain of custody is a more fruitful course of attack than the investigator lic. If you don't have the facts to get you from start to conclusion, you don't have an airtight case.

But even if some of the evidence is discarded, this is a civil case with lower standards and IMHO there are enough facts to be a problem.