In Arista v. Does 1-21 (renamed London-Sire v. Doe 1), the case targeting Boston University students, the RIAA has filed papers opposing defendants' motion to strike all of the Linares declarations filed in the consolidated cases.
Plaintiffs' opposition to motion to strike Linares declarations*
* 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
8 comments:
"Defendant argues that MediaSentry should have had a
private investigator’s license pursuant to Massachusetts General Laws (“MGL”) 147, Section 23.
.... Additionally, MediaSentry
did not conduct an investigation subject to Section 23 because its work merely involved
gathering public information."
The RIAA continue to propagate the falsehood that PIs only deal with secret, non-public information. This is the opposite of the truth. The majority of the information gathered by PIs is information anyone could gather if they knew how--i.e., Media Sentry.
How can the RIAA even say this with a straight face? The Carlos Linares Declaration is so fraudulent that were he in an actual computer science class he'd be flunked out for not understanding the subject.
For a court to rely on such outright lies and misrepresentations is terrible. For the RIAA to maintain that this is merely a question of dispute over "factual issues" when they're using their lies in this manner to convince the court to take actions that the court would normally not take should have then sanctioned for fraud. But as we've seen, lawyers don't seem to get sanctioned, even for egregious misrepresentations.
The RIAA contends that Mr. Linares's (has anyone specifically deposed him yet since he is represented as such an expert?) declaration is not "hearsay" but "personal knowledge" because he supervises the MediaSentry illegal investigations.
Correct me if I'm wrong, but if someone tells you something that you obviously don't understand, and you then repeat it, is that "personal knowledge", or "hearsay"? I'd argue for the latter.
Now we're told that MS doesn't need a PI license because they only gather publicly available data. Of course they do this with tools and procedures not available to the public that they've testified under oath took tens of thousands of man hours to develop. But don't all PI's investigate "publicly available data"?
Also the argument that "we already got the data so this doesn't matter" argument should be thoroughly rejected. Clearly the RIAA is desperately afraid if the Linares Declaration is called into serious question even once then they're in deep trouble.
So Linares is a VP. Wow! That doesn't explain how his "personal knowledge" is actually valid in these technical areas. In fact, if anything, that actually disqualifies him from actually knowing what he's talking about.
Btw, where is the January 10, 2008 letter where MediaSentry says that the Massachusetts State Police are full of crap for declaring their investigations illegal?
Second, there was no private investigation here
Then what exactly did MediaSentry get paid for?
First, at this stage of the litigation, Plaintiffs are not required to prove their full case.
Shouldn't they at least be required that their case is even provable at all?
Plaintiffs need only to offer sufficient evidence to demonstrate that the allegations are well founded.
And in actuality Plaintiffs have offered sufficient evidence of NOTHING!
And in particular, the RIAA TOTALLY FAILS TO PROVE that an IP address can identify an individual, yet they will sue that person knowing that they have no proof that the person sued is the infringer. The courts should never have allowed this to happen in the first place.
-DM
Let's double check that I understand the reasoning here.
The defendent can't move to strike the declaration because the court unilaterally combined this case with lots of others, and no one ELSE objected, and most of the discovery is already done, so THIS one ought to proceed too. The defendent's not allowed to think of something NEW that no one else thought of. He should get in the row with all the other ducks.
And I also fail to understand how Media Sentry doesn't need a PI license just because their working for a lawyer.
Unless I read the licensing act incorrectly, MOST PI's work for lawyers gathering evidence for use by lawyers in criminal and civil actions. Isn't that a "duh"?
And if everything Media Sentry did is "public information" then why make a big deal about their proprietary methods?
There's some continuing lack of consistancy here.
Flat out lies. 1)If MediaSentry was not performing investigation, the Mass State Police would have taken no interest in them,
If it were so easy to gather this information, then the RIAA would have gathered it themselves, or are they not smart enough to do that. If Linares is so knowledgable, he would have downloaded and copied files himself and cut out MediaSentry, or he would have used Doug Johnson to do the investigation.
If you get paid to do an investigation, you are an investigator. If you advertise that you do investigation, you are an investigator. Don't get me started....
First, the investigations performed by MediaSentry do not fall under the MGL Section 23 licensing requirements because Section 23 does 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). Defendant argues that this exemption does not apply because MediaSentry was retained by RIAA. This distinction has no merit because MediaSentry’s work was performed under the supervision and direction of Mr. Linares, an attorney, to assist him and other attorneys in their investigation and litigation against copyright infringers.
Well, if that's the case, maybe ms. Coggon et al should re-read the Linares declaration at para. 11.
In order to assist its members in combating copyright piracy, the RIAA retained a third-party investigator, MediaSentry, Inc ("MediaSentry"), to conduct searches of the Internet, as well as file-copying services, for infringing copies of sound recordings whose copyrights are owned by RIAA members
If you take the argument in this motion as correct, then the Linares dec. is perjured testimony. If you take the declaration as correct, the argument is flat out lies (as one can expect the entirety of the motion is as well). Either way, it's a losing argument.
Of course, all one really needs is the contract between RIAA and MS that is not signed by Linares to prove the latter is correct.
Q
The RIAA is bing either too clever by half or very obtuse. The applicable law is very clear, it is about the motive, not the process or source of information. If you investigate for hire for the purpose of use in a legal case you need a PI License. No other factors are relevant; Method, Source or Employer.
"Private detective” or “private investigator”, a person engaged in business as a private detective or private investigator, including any person who, for hire, fee, reward or other consideration, (2) engages in the business of making investigations for the purpose of obtaining information with reference to any of the following matters, whether or not other functions or services are also performed for hire, fee, reward or other consideration, or other persons are employed to assist in making such investigations:—
(d) Evidence to be used before any investigating committee, board of award, or board of arbitration, or in the trial of civil or criminal cases.
For example, if I go to city hall and ask if so and so has a valid construction license, I don't need to be a PI. But if I hire myself to the general public to do the exact same thing, I need a PI license.
The issue of the employer exception doesn't apply. An attorney at law in the practice of his profession. Although Mr. Linares may be an attorney (was any presented in evidence that he is licensed in MA?) He was not performing the practice of his profession when he was managing the investigation. He is either an expert or a lawyer. And if he contends he was acting as a lawyer and is not licensed to practice law in MA, he is in a world of hurt.
To extend the example from above. If Ray sends a paralegal to city hall to check the records, no PI license is needed. If Ray hires me, a PI license is needed. If Ray hires another attorney to do it, it would depend on the nature of the relationship and the nature of the duties and practice of the attorney (for example, hiring a lawyer that is licensed in MA). But if he hired a third party that was not a legal practice, regardless if they had attorneys in management positions, they would need a PI license because the investigation would not be in the practice of his profession
As a further note, I believe that the reason that the particular exemption exists is that a practicing attorney would be subject to sanctions if they were found to give false testimony.
Slightly off Topic but I found this site which I think should be linked.
A list of all the states and applicable laws.
http://www.oregonpi.com/licensing.htm
The problem, as I see it here, is not that the RIAA wishes to investigate abuses of it's intellectual property but that Media Sentry in it's desire to save money, investigates in an improper manner (no chain of evidence, direct investigators not testifying at trail) and without proper state licensing.
The reason the RIAA/MS does this is exactly the same issue why they routinely perform improper jointer; If proper procedures were being followed, their mass prosecution strategy would not be cost effective.
What should be happening here is that Media Sentry should produce and license a software tool (source code and production techniques available for court inspection under seal) for properly licensed 3rd party private investigators (with whom the RIAA has no relationship) to "independently" download a complete or partial audio file from a single IP address and thus discover evidence of violations of the RIAA member's Intellectual Property (note the investigators and the defendant must be in the same state as the PI licensing). MS or the RIAA could then pay a "bounty" to the PI if he can find a way to link the IP address to an actual person (stakeout the residence) and then retain him to testify / generate a report with proper chain of evidence for his personal investigation. The problem of connecting the IP address to an individual and getting the name of the IP's account holder from the ISP is left as an exercise for the private investigator.
Some valid methods the Private Investigators could use would include independently tracing the user by their P2P username and traceroute logs and then calling w/recording the resident and convincing them to use their computer to go to a website, and then when the website is accessed, quickly redownload the file thus strongly implying that the contacted person is the current operator of the computer. Other methods include peering through windows the actual computer use.
Then the RIAA should file a lawsuit against the individual with no jointer and pursue the claim diligently to resolution, seeking attorney's and investigator's fees (post RIAA contact) and reasonable damages, i.e the cost of the songs from it's cheapest public distribution such as single/album. They could also pursue reasonable punitive damages to the degree that the infringer likely personally
copied the file. Unprovable secondary distribution A>B>C>the world issues should be only presented to the court to keep in mind when the court determines discretionary punitive damages.
The problem here is that MS and the RIAA does not do any of these things that are necessary to properly pursue their cases in a just, fair and legal manner. They cut corners, sometimes very large ones, in order to reduce their costs on the mass lawsuit strategy.
The legal system has a proper way to protect against unauthorized intellectual property distribution, if the RIAA doesn't like that, they can lobby congress to change the law.
Post a Comment