Monday, February 04, 2008

Boston University student files supplemental brief, notes that Massachusetts state police have issued "cease and desist" letter to MediaSentry

In Arista v. Does 1-21, the case seeking the identities of Boston University students, the student "John Doe" has filed a supplemental brief, mentioning a number of factors about the weakness of the RIAA's case and the impropriety of its methods.

Among other things, the brief mentions that the Massachusetts state police have issued a "cease and desist" letter to MediaSentry, directing it to cease and desist from conducting investigations without a license. (See page 10).

Defendant's supplemental memorandum of law in support of motion to quash*

* Document published online at Internet Law & Regulation

Commentary & discussion:
Ars Technica
Heise Online (German)

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


Reluctant Raconteur said...

I notice that the attorney only asks for the cease and desist order, not that the MS evidence be thrown out.

Is this because the 'official' copy has to come from the plaintiff's? And after it is produced, further action can be taken?

Nick Rout said...

I am a lawyer in NZ and i can't say I understand all this "Does" stuff.

I know that the plaintiff sues "unknown" defendants and seeks an order against an ISP/University/etc disclosing actual identities. That much makes sense.

But who then responds on behalf of the "does". Who engages the lawyer and so on? Who is the document actually filed on behalf of?

James said...

"Is this because the 'official' copy has to come from the plaintiff's? And after it is produced, further action can be taken?"

Not that I'm any sort of expert here, but that's the meaning I get out of it. Doe's attorney mentions the cease and desist and does seem to suggest that the judge consider the letter before allowing the so-called evidence provided by MS, in violation of PI licensing laws in Massachusetts and 42 other states.

If he throws the "evidence" out for being illegally obtained, I would think this would have implications on similar cases throughout the country, and most importantly, a mortal blow to Big Mu$ic's (il)legal scheme.

Anonymous said...

But who then responds on behalf of the "does". Who engages the lawyer and so on? Who is the document actually filed on behalf of?

The student whose information was subpoenaed contacted a lawyer when the university contacted him with notice. The lawyer is filing this motion on behalf of a certain doe, however, he is moving to have the entire subpoena quashed. see the reply memo, which has more of the story behind this case.

I like the pleading of insufficient evidence as grounds to quash the subpoena. We'll see if the judge agrees.


Anonymous said...

The attorney for the Doe does not have a copy of the Cease and Desist letter since the investigation is still confidential. MediaSentry obviously has a copy and either provided it to plaintiffs or can provide it. The plaintiffs may be ethically required to provide a copy to the court or to explain why they are not providing a copy.
The plaintiffs will probably argue that MediaSentry was not conducting a private investigation but only obtaining publicly available information. This, hopefully, is a losing argument because there is nothing in the statute which defines a private investigation as one which seeks non-public information. They may also argue that the state license matter is still pending.
Once the letter is produced by plaintiffs or obtained by a subpoena from the court to MediaSentry, the Doe may file a motion to exclude the Linares declaration based on the MediaSentry investigation.

Anonymous said...

Responding to Nick Rout question, the Does get notice of the action because the court asks the universities to forward it to the individuals it believes are associated with the ISP addresses. The Does are given an opportunity to move to quash the subpoena so the university will not have to turn over their names to plaintiffs. They can engage a lawyer to file the motion to quash on behalf of the Doe, without naming him, of course, or they can move pro se, as many have done in other cases.

Reluctant Raconteur said...


You are right in that the 'does' are the unknown (to the RIAA) defendants that the RIAA wants the University to identify and provide to the court.

The University has notified the people that it thinks are the ones that the RIAA is talking about before returning that information to the court. The notified person then engages legal counsel.

The RIAA has in the past turned this around with "aha, you have identified the defendants because they have counsel, so where is the name" Screwed if you do, screwed if you don't.

The arguments presented here are not to dismiss the merits of the case (premature I think) but to argue that the entire procedure is not correct and therefore should be thrown out.

The MS evidence is just part of the argument but one of the first times it has been used.

In theory there should be 22 or whatever cases against John Does. In practice, whatever they can get away with.

Anonymous said...


IANAL, just an engineer. Can a police department issue a cease and desist order?

Isn't Harvard in Massachusetts as well, he interjects slyly.

Kip Patterson

Anonymous said...

subpoena issued by this Court commanding Boston University (“BU”) to provide names of its students whose computers were assigned internet protocol addresses at certain times.

Now there's an accurate statement of exactly what the RIAA is demanding. And from that they impute a copyright violator and sue for hundreds of thousands of dollars.

During the hearing, the Court requested authority against plaintiffs’ position that intentionally storing a legal, i.e., licensed, music file at a location on a computer such as a “share” folder connected to the Internet where plaintiffs’ agent, MediaSentry, was able to find it and download it, is an infringement of the copyright owner’s exclusive distribution right

In short, you have to prove the RIAA's position wrong, not the other way around.

Judge Gertner said she could put a file on her own computer in a place where it would not be available even if using P2P software.

Now that's a pretty neat trick that I'd like to see. Since any directory can be shared by most P2P programs, just where else does this judge plan to hide her music files?

What users do not know is that they may be sharing their tax returns, financial records, health records, business records, email, and other personal and private material

I'm pretty sure no user intentionally shares those types of files along with their music, whether they're a judge, or not.

[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....

This one is potentially huge! A student holding a campus account isn't really any different than a citizen holding an ISP account. What is said above should apply equally to any student identified by an IP address and a timestamp. They are merely the identified account owner of that account, which others may have used.

An additional authority is, where attorneys Ray Beckerman and Ty Morlan have “made available” the above citations and the full opinions for the cited decisions.

Ray, now you're guilty of "making available". :-)

Citations have been submitted to opinions and orders of other members of the federal judiciary, leading copyright commentators, and related published articles, which shed light on the legal impropriety of plaintiffs’ overall scheme.

This really should have covered every possible base here.


RJ said...


You can make "unsharable" folders through a number of ways (that I know of off hand. I'm sure there's more that I don't know of).

For example, there's programs which change the folder directories to make folders and files completly invisible to even the OS, thus the files are untouchable by any other program.

As well, files can be placed on drives which are "unreadable" to the OS running the P2P program, something which you can do if you dual-boot or run virtual consoles.

The easiest way would be to have your P2P program run as a specific user, and then ban that user from folders on your HD other then the one you want shared. Though I have a feeling that this is not quite the way the judge was refering to.

Anonymous said...


My point is that if the folders are available to you otherwise, then they're available to your P2P program. Yes I can put files on a hard drive that the P2P program cannot see. But neither can I see them at that point otherwise, since a P2P program runs with the user's privileges, and they are no use to me.

I mean, the Judge could put them on a floppy drive, remove the floppy, and make them invisible to the P2P program. Neither could the judge then play those files for herself without reinserting the floppy disk and making them again available to the P2P program if it searched for them, or was told to share them.


Anonymous said...

In response to RJ, the point is that RIAA testified before the FTC to the effect that most users of P2P software are sharing some or all of their files without intending to share them and therefore the court should not assume that the files accessed by MediaSentry using that software were intentionally made available to others.
Your examples of how to prevent unintentional sharing are at level 9 PacMan, above most students' and probably the court's level.

Anonymous said...

The RIAA is arguing that if MediaSentry can break into my computer and download a copyrighted file then I have violated the copyright on that file. This is the same as arguing that, if I lend you a book and you make a copy of that book I have violated the copyright on that book.

Do they need to prove intent? That, at least, I suggested you copy the book.

Nick Rout said...

Thanks for those who responded to my query, very enlightening :-)

raybeckerman said...

Nick, you were perplexed only because you are a rational and fair minded person.

To understand RIAA litigation you have to jettison all notions of fair play and reason.

Alter_Fritz said...


As long as commenters don't start posting links to copyrighted big 4 product and Ray does not let them thru, I guess Ray is fairly safe while he is "guilty of "making available"" quotations and opinions of US judges.

If I'm not misinformed, works of US gov are not copyrighted but fall under public domain (at least that's what wikipedia states when they have photos or other stuff from the militäry in articles).
I assume this applies to justice stuff too.

And if not, he has the defense of fair use as point "reporting" (and "criticisem" when he mentions the RIAA) +

But of course you knew all that already and you only wanted to bring some fun into the discussion. :-) So me not wanting to be a smarta** here in correcting you ;-)

BTW. Just in case the judge uses the link provided by Mr. Sayeg:
This will work now too!
(It actually gave an error that it wasn't available when I checked that just this moment.) ++

+ Hm, me comes an idea, if I link to a digital copy of Avenue Q - Schadenfreude (to whom I refered already a while back in a text comment) in low quality mp3 can I then argue with the parody or criticism defense against RIAA /their shills and the wkarrc's too?) ;-)


(if someone can comment how to do a meta refresh automatic redirect to Ray there instead of having a post with the correct address, please tell me in the comments on "my" blog)

Anonymous said...

Why did the police issue a "cease and desist letter" instead of an arrest? I don't recall the police sending me a letter telling me to stop breaking the law when I lived in that state. -ex Mass. resident