Wednesday, February 20, 2008

RIAA files more papers opposing motion to quash in Boston, admits MS got 'cease & desist' letter, argues 'making available' violates Copyright Act

In Arista v. Does 1-21, the case targeting students at Boston University, the RIAA has filed further papers responding to the supplemental papers filed by the students and the amicus curiae brief submitted by the Electronic Frontier Foundation.

Their new papers

-admit that MediaSentry received a cease and desist letter from the Massachusetts state police;

-argue that MediaSentry was not violating Massachusetts law;

-argue that "making available" is a copyright infringement, despite the absence of any reference to it in the Copyright Act; and

-characterize the articles cited by the students in their briefs as "vitriolic blog postings of disgruntled individuals and a handful of commentators".

[Ed. note. To the extent that the last comment was directed at "Recording Industry v. The People", I would like to make the following clarifications: (a) I confess that "vitriolic" is a good word to use to describe the feelings I have towards the unprofessional behavior of the RIAA attorneys. "Detest", "contemptuous", "outraged", "appalled", "repulsed", and "sickened" also come to mind. (b) However, I am not "disgruntled". I will be "disgruntled" only if the Courts ultimately buy the voodoo legal theories and the fabricated, mislabelled, illegally procured, and doctored "evidence" the RIAA lawyers are attempting to peddle. So far the RIAA has won only one fully contested case, and that case is not over. I expect Mr. Gabriel, Mr. Oppenheim, and their similarly unprincipled lackeys to be the "disgruntled" ones, when the dust settles. And I anticipate that the MediaSentry people will feel "disgruntled" when they wind up behind bars along with their now "former" CFO, which appears likely in view of the recent revelations that they have been conducting investigations without a license, and are presently attempting to deceive the Massachusetts law enforcement authorities as to the nature of their activities on behalf of the RIAA and the record companies. I don't think their ex post facto tampering with the language on their web pages would exonerate them in the eyes of most prosecutors I've met. -R.B."]

We note that the RIAA's brief responding to the John Does' brief cited a New York State Attorney General's Opinion from 1919, but did not annex a copy of the Attorney General's Opinion, which is most unusual, since these are not readily available to the Judge, as published statutes and cases would be. Accordingly we have obtained a copy of the actual opinion (1919 Opinions of Attorney General 256* (November 10, 1919)), which opines on a very different, much narrower, version of the statute than the one in effect today (General Business Law Sec. 70, 71).

RIAA brief in opposition to John Does' supplemental brief*
RIAA brief in opposition to amicus curiae brief submitted by Electronic Frontier Foundation*

* Document published online at Internet Law & Regulation

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


Anonymous said...

I read that part where they state MS was working for the attorneys and not for the RIAA. Of course this is being done to attempt to get around the PI laws.

This should be an easy matter to refute, make them produce evidence as to WHO paid MS. Of course, we will hear an argument of privilege, but how can that fly when the workproduct of MS has been filed with the court as evidence??

If the lawyers did not pay MS, I'd say that puts a quick end to that arguement.

I also note how they forget that the case law requires proof of distribution of actual copies. Hotaling and the other cases involved the actual distribution of copies.

The only proof of copies is the copies downloaded by MS. However, since MS was their agent, it is clear that this copy was authorized. (If it was not, why not SUE MS for infringement, since they have better proof against them than anyone else.) Their 1 sentence explanation glosses over the agency issue. If they did go after MS, I am sure agency would be their first defense.

Since MS is using custom made P2P client programs, we do not know if it is even possible for the test files to have been downloaded by anyone not possessing such a hacked client program. My understanding is by default the P2P software attempts to download each file in pieces, pulling a small portion from several machines, and combining them.

The MS client had to be hacked to allow the entire file to be uploaded from a single source. I suspect the reason that MS has so few files is that limits on upstream bandwidth at most dsl/cable connections made this operation take a very long time per song, compared to the default behavior of grabbing pieces from many sources.

Without the hacked P2P client, NO OTHER COMPUTER would have been able to do what they did, Ie: grab the entire song from a single source. For this reason they should not be able to imply that any other distribution ever occured.


Anonymous said...

I was reading the response to the John Does supplemental brief. The section on the investigative activities of Media Sentry explicitly states that Media Sentry is performing investigations for the Attorneys representing the RIAA.

Regardless of the courts acceptance of the argument that Media Sentry is working legally in Massachusetts, it seems to me that this would eliminate any obfuscation Media Sentry is trying to accomplish on their website. Wouldn't their attempt to do so prejudice their position in any court?

Anonymous said...

Wow. What a bunch of crazy legal rhetoric.

The Section 23 licensing requirements do not apply to “[a]n attorney at law in the
practice of his profession.” Section 23(6). This exemption includes agents and investigators
retained by the attorney. Supreme Judicial Court Rule 3:08, PF 15; In re Grand Jury
Investigation, 407 Mass. 916 (1990). Because MediaSentry is acting as an investigator for
Plaintiffs and their counsel in this case, the Section 23 licensing requirements are inapplicable.

Hmm.. yet, for some reason, the law is explicit as "attorney at law in the practice of his profession" and does not include language stating they wish to include agents, like 23(2) does:
A charitable, philanthropic or law enforcement agency, duly incorporated under the laws of the commonwealth, or any agent thereof while he is engaged in the discharge of his duties as such agent; provided, that such agency is promoted and maintained for the public good and not for private profit..

Certainly, the primary purpose of a PI is to investigate individuals/corporations for legal proceedings. Why else would you hire a PI?

The integrity of the evidence gathered by MediaSentry is not at issue. MediaSentry’s
actions are analogous to a private citizen going to a public library and reading materials in the library’s collection. According to Defendant’s theory, the library patron would be required to get a private investigator’s license.

Well, certainly if someone was investigating the library for a lawsuit, one can imagine that the investigator should require a license. How an individual obtains information is realitively irrelevant - again, PIs can dig through garbage (also in plain view for anyone to see), take pictures (in plain view), etc.

In fact, one could construe mediasentry's role slightly differently, as they "watch" the "internet" for "evidence" of "infringement" :
from 22:
“Private detective business”, the business of private detective or private investigator, and the business of watch, guard or patrol agency.
“Watch, guard or patrol agency”, the business of watch, guard or patrol agency, including the furnishing, for hire or reward, of watchmen, guards, private patrolmen or other persons to protect persons or property, to prevent the theft or the unlawful taking of goods, wares or merchandise, or the misappropriation or concealment thereof or of money, bonds, stocks, notes or other valuable documents, papers or articles of value, or to procure the return thereof, whether or not other functions or services are also performed for hire or reward, or other persons are employed to assist therein.


Anonymous said...

I see another 15 + 28 = 43 pages of RIAA bloviating. They're killing whole forests with their blizzard of paper.

argue that MediaSentry was not violating Massachusetts law

I'm guessing that according to the RIAA, MediaSentry hasn't violated Massachusetts law until a court, and all the appeals courts above it, have said so. And even then, the RIAA will be stating, "Only one outlier court has disagreed with our position in these cases."

Unfortunately, instead of following the Court’s directive and submitting such academic authority, Defendant used the opportunity to submit a brief filled with unsubstantiated rhetoric that raises issues having nothing to do with the Court’s directive.

How about a brief filled with truth that we don't want to deal with?

Defendant argues that making available copyrighted works for distribution does not constitute infringement. Defendant is wrong.

I don't think so.

(i) MediaSentry does not need a license to collect evidence against Defendant;

Oh, please, please, please believe us in this, because we have absolutely no case at all otherwise. We really have no case against any individual, or even any computer anyway, but this would be even worse than that. We might go to jail.

Plaintiffs presented substantial evidence to satisfy both of these elements.

Plaintiffs can't even identify an individual. And if Plaintiffs already have "substantial evidence", then they should have no further reason for discovery at all on any individual, and can proceed directly to trial with the "evidence" they already claim to have in hand.

As explained in the Linares Declaration filed with the original Ex Parte Motion to Take Immediate Discovery, MediaSentry was able to identify Defendant’s Internet Protocol (“IP”) address, but not his name or other contact information.

The big difference here is that they may have identified an ISP account holder – what they call "Defendant's Internet Protocol ("IP") address," but that in no way whatsoever identifies any actual infringer. Witness the number of cases the RIAA has had to drop in order to refile against "actual infringers" who were not and never were the ISP account holder of record. A student account in this regard is No Different than any commercial ISP account.

Of course the RIAA hates dropping cases at all. They'd rather just do a music chairs switch of Defendants in order to keep adding up the legal charges they intend to recover in that case. You can't get legal charges for a dropped case, and the meter starts at zero on any new one.

the Court need not even consider Defendant’s “making available” argument because Plaintiffs have alleged, and have evidence to prove, that Defendant actually distributed a number of Plaintiffs’ copyrighted sound recordings to MediaSentry.

Hey, that doesn't count clowns. You know that legally this argument is completely void and fatuous.

Plaintiffs have successfully litigated thousands of similar cases throughout the country, including winning many of them through summary judgment and at trial.1

Does that little "1" at the end mean the ONE CASE that is still under appeal from the original trial, which is the ONLY CASE to go to trial. You are so close to outright lying to the judge in the instant case about your win record that I'm surprised he hasn't already sanctioned you, and then slapped you silly afterwards, for your outright insults to the court's intelligence.

the information that MediaSentry gathered is public information that was placed out on the Internet from Defendant’s computer, on Defendant’s internet account, for any P2P user to see.3

Another outright lie that tries to make the facts of filesharing far different than the reality. In simplest refutation, the statement could only begin to be correct if it read: for any P2P user running the same program, searching for specific files, near enough in the P2P network swarm to see, and besides, our investigator MediaSentry uses proprietary software not available to any other P2P user at any time. We may well find files no one else can.

Plaintiffs are not aware of a single case where evidence was excluded because of a violation of any portion of the MGL Provisions.

And we've done our absolute best to NOT look for any such cases either.

the “deemed distribution rule” did not apply to Google because, “[u]nlike the participants in the Napster system . . . Google does not own a collection of Perfect 10’s full-size images and does not have a collection of stored full-size images it makes available to the public.” Id. Thus, Google itself did not “distribute” the plaintiff’s images as did the Napster users. Id.

Interesting contention, since the highly, and sometimes badly, compressed music of MP3 files is also not the fully, uncompressed, original music sold by the Plaintiffs. Therefore, if you're not making the original recordings available, but just some downsized, compressed, degraded versions, then that doesn't qualify as infringement? As I said, interesting…

characterize the articles cited by the students in their briefs as "vitriolic blog postings of disgruntled individuals and a handful of commentators".

I hope that includes me.

I also hope that the Defendant's get their opportunity to reply to this load of bilge before the judge has to make a decision on it.

-Dodge Magnum

raybeckerman said...

1. Note that I've amended the post to add a copy of the actual New York Attorney General's opinion, from 1919, which the RIAA failed to annex to their brief. You can see why the omitted it; the statute in 1919 applied to a much narrower arena of activity.

2. The RIAA's statements under penalty of perjury in UMG v. Lindor, in 2006, in connection with the motion for protective order to keep the MediaSentry agreements secret, make it clear that MediaSentry was retained by the RIAA on behalf of the record companies. They were not retained by the attorneys.

3."The integrity of the evidence gathered by MediaSentry is not at issue."

Are they kidding with me?

Anonymous said...

The 1919 brief is very telling. The RIAA claims MediaSentry does not need a license, because the court can use evidence gathered by unlicensed investigators.

However, the 1919 brief explicitly states that the sole reason the evidence can be used is because the investigator did not hold himself out for general hire. Interestingly, because MediaSentry/SafeNet publicly advertise (via their current and old website, as well as their own depositions) that they are selling products to many companies, they cannot be construed as falling within this limited "exemption".

It is also telling that the RIAA would need to cite a case from 1919 from out of the Court's jursidiction - certainly there must be more case history than that. For example, they've successfully litigated thousands of cases in the past few years...


Igor said...

"Defendant argues that his intent is relevant to the determination of whether he infringed
Plaintiffs’ copyrights. Even if factually true, Defendant is wrong."

I just want to take a second to laugh at the bad English there... "Even if factually true" is referring to relevance there if we go by standard English...which means they are saying even if it's relevant, the defendant is wrong? But how can the defendant be wrong pointing out that it's relevant if it IS relevant?

Igor said...

Now for the WTF:
"The evidence further demonstrates that Defendant distributed actual copies of Plaintiffs’ works to Plaintiffs’ investigator without
authorization. In doing so, Defendant violated Plaintiffs’ exclusive distribution right under
section 106(3) of the Copyright Act."

Umm...and here I thought that Media Sentry was an agent of the RIAA...silly me, they are apparently and "investigator" of the they are investigators of the plaintiff (or their lawyer, depending on the paragraph) but are not an agent and therefore giving them copies of their own copyrighted work is not infringement?

Anonymous said...

I agree with Q

The law, Chapter 147, section 23 list of exceptions include: 6. An attorney at law in the practice of his profession.

Unlike the other sections, this law includes ONLY the attorney and does not extend to his/her staff.

They cite a case 407 Mass. 916 in support of their proposal that the attorney staff has the same exception as the attorney. However, that case actually seems to stand for the opposite, the Court finding Hospital staff were NOT agents of the attorney, and that the State was entitled to discover from the hospital a blood alcohol reading that the attorney directed the hospital to take for defense purposes.

It appears from plain reading of the statute that investigation that is done by the attorney him/herself is exempt from the license.

However, if an attorney (or anyone else) wants to hire a PI, with limited exceptions that do not apply here, those PI's that are hired MUST be licensed. This includes MS.


Anonymous said...

Re: Making available.

Boston University has a library, which like many other university and public libraries, contains a large number of copyrighted work. The library also has a number of photocopier machines. By the Plaintiff's argument, BU is guilty of massive copyright infringement, just because works are available to be copied.

In fact, the action of copying work in a library is nearly identical to the digital p2p version, unlike the lending arguement. The library retains its copy at all times, and publishes a record of all the works they retain. When a patron "infringes", they select the work to "infringe" and make a copy, leaving the original exactly the same as it was before. The BU library is no more culpable than any of the Does here.


Unknown said...

Media Sentry is doing investigations before any lawsuit is ever filed, before any evidence of wrongdoing is ever discovered. Much of their investigation will never lead to a lawsuit, and much of it will never be seen by either the RIAA member companies or the attorneys.

Maybe at some point in a case - in some cases - they become investigators in the employ of the attorneys (and that doesn't address the question of whether or not that's actually an exempted class), but any time they start their investigations, neither they nor the people they work for (whether those people are attorneys or not) are involved in the practice of law.

An analogy for you: Suppose Monsanto hires attorneys who hire some geneticists to go from cornfield to cornfield, checking out corn plants to determine whether any of them have the Roundup-Ready genes. The geneticists are acting as private investigators, and even though they are employed by attorneys, their investigation may or may not lead to an actual lawsuit (simply having Roundup-Ready corn plants is not a patent violation - Monsanto's complaints arise when farmers try to replant seed from one year's crop during the next year).

Is it not in the public interest for the geneticists be governed by the laws (including licensing laws) governing private investigators? Doesn't allowing a private investigator to claim employment by an attorney (even when it's not in the scope of an actual legal action) defeat the purpose of the licensing requirement?

Similarly, when Media Sentry is going on their general fishing expedition, going from filesharing peer to filesharing peer, their actions are not in the scope of an actual legal action, regardless of their employer. They may later gather more evidence for use in a complaint against someone, but their initial investigation most certainly is a problem here.

Anonymous said...

I think the primary reason to require PI to have a license is to regulate their actions. In the 1919 opinion, it is mentioned that PIs often exhibit unscrupulous behavior. It is this behavior precisely which is required to be regulated.

As one example of behavior that is supposed to be regulated, Warner v. Paternoster, where the RIAA via their MediaSentry agents attempted to publicly expose private details of an Army officer.


Anonymous said...

In the Linares Delcaration, the RIAA defines itself to the courts as a Not-for Profit Trade Association. Now as they try to defend their outside vendor (SafeNet/MeidaSentry), the RIAA has became a “[a]n attorney at law in the practice of his profession.” How do they change like that?