Monday, June 01, 2009

Jammie Thomas-Rasset moves to suppress all MediaSentry evidence

In Capitol Records v. Thomas-Rasset, Jammie Thomas-Rasset has filed a motion to suppress all of the MediaSentry evidence, on the ground that it was procured in violation of numerous federal and state criminal laws.

The brief cites violations of:

-the Minnesota Private Detectives Act;
-the federal Pen Register and Trap and Trace Devices Act; and
-the federal Electronic Communications Privacy Act of 1986.

The motion is scheduled to be argued June 10th. The trial is scheduled for June 15th.

Memorandum of Law in Support of Defendant's Motion to Suppress All MediaSentry Evidence

Commentary & discussion:
Ars Technica

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


Anonymous said...

Go Jammie,

This is the only way that this man sees to make Media Sentry and the RIAA Plaintiffs obey the law and respect protected rights.

{The Common Man Speaking}

Alter_Fritz said...

hey, refreshing to see good ol' RIAA-Rich mentioned again!

Is his term as disgrace for the judges profession over already so that he can be hold responsible for all the unethical (and probably unlawful) acts he and his successors at Holme Roberts and Owen have committed and are still committing?

Anonymous said...

HOLY (insert expletive here)!

If the judge agrees with this, then it looks like the RIAA falls flat on their face.

But of course if the judge does agree with this brief, then they will probably appeal just to drag it out for Jammie.

At least she has young, eager, smart lawyer working for her.

Lior said...

IANAL so read the following with extreme doubt.

In my opinion, the argument that MediaSentry (MS) was investigating without a license is good. Certainly whatever evidence they gathered should be suppressed.

On the other hand, characterizing MS's actions as "wiretapping" is a bit much. In particular, we should be suspicious of the argument that violating a website's terms-of-service is a serious federal crime.

What MS claim to have done is no different than secretly recording a phone conversation to which you are a party (including writing down the Caller ID). The "KaZaa clients" installed on Thomas's and MS's computers are not automomous people; what took place was a communication between Ms. Thomas and MS, mediated by the KaZaa clients installed on their respective computers. This is no different or making a phone call which is mediated by the phone company.

In some jurisdictions it is illegal to record a conversation without the consent of all parties -- and there defendants should argue accordingly, but note that some webservers routinely keep a log of all requests -- is this also illegal wiretapping?

In any case, I'm fairly certain that all-party consent is not required under Federal law, so the argument that the traffic recording violated the wiretap act is wrong in my opinion.

That MS violated the KaZaa terms of use is possible [depends on whether the prohibited "monitoring" extends to monitoring your own traffic, or only to traffic entirely between other users], But breaking a website's TOS should be thought of as a breach of a license -- not as a serious federal crime.

I'd be happy to learn that evidence gathered in breach of a license is normally supressed. I'd be concerned if an act breaching the terms of a license to use a computer would be held a felony where the act would not have been a felony absent the license.

Eric said...

I've always felt that we have private investigator rules/regs in order to protect the integrity of the court system. You have a service that one side is PAYING and creating a serious conflict of interest.

I hope that if they loose this motion the move to suppress the evidence under the Daubert standard. Either way the MS evidence still may get an uncomfortable spotlight.

Anonymous said...

I agree that the wire-tapping argument is the weakest of the bunch. MS wasn't really intercepting anything, their computer established a direct connection with the alleged infringing computer.

However, I have always found the unlicensed investigator argument to be very compelling. It appears that MS was in explicit violation of licensing laws, as it was in Michigan and other states. The MINIMUM punishment should be suppression of evidence. Even though I would love to see her expert witness take a ginzu to MS' so-called 'evidence,' this could go a long way to saving future defendants a lot of trouble.

lost in thought

Anonymous said...

Wow! Nice one... I hope it works.

Anonymous said...

Lior, lost in thought:

On its own, one is free to packet sniff packets one is receiving, but apparently not if one is violating other state or federal laws at the same time, or so Defendant roughly says.

So if the investigators were acting illegally, or if MediaSentry were breaking some other law, then it seems the packet sniffing was illegal too.

Generally speaking, AFAIK, you can packet sniff packets sent to you, without breaking any laws. But this is not the general case.

On another note, now the RIAA might argue that ignoring Terms of Service is not illegal, which seems to put them in a position opposite the commercial software industry. If this issue goes anywhere, it could be interesting.


Anonymous said...

There is another issue with MediaSentry's evidence. If you collect evidence for a lawsuit, you have to collect it properly (chain of custody etc). Without that, it is inadmissible.

This is also applicable to the cable company's evidence. If they kept it with a view to giving it to the RIAA, same thing

IANAL, and my location should warn you about my knowledge of American law.


Eric said...


RIAA has claimed that MS is either an "eye witness", "expert witness", or "private investigator" depending on how it best suited the case ( or the laws of the state / court at the time )

Why they are allowed to do this and are not barred by their previous arguments baffles me.

My big concern is what happens if they throw out MS evidence, will RIAA be able to continue to make their case on the HD evidence or would it be barred since without MS there would have been no case to begin with?

Another question would be if the MS evidence gets tossed would that make any future lawsuits eligible for rule 11 sanctions because they know that the evidence is flawed?

Anonymous said...

XYZZY, my understanding of what MS is doing -- which may not be correct based on my limited understanding of the technology -- is behaving like any other p2p user (using super-top-secret software). If that is the case, that MS is using p2p-like software to download directly from the suspect computer, then the packets themselves would be addressed to the MS computer. I was confused by that part of the brief, how that would be interception if the packets are addressed to the MS computer. I may just be dense and missing the obvious, but I don't totally understand it.

lost in thought

Scott said...

There was an interesting post in Slashdot from an apparently knowledgable person stating that courts have some discretion in admitting or suppressing illegally obtained evidence -- that suppressing it isn't an absolute requirement.

If this court finds that the evidence was illegally obtained, then I think it's going to have to look at whether suppressing it is in the public interest. By that measure, I don't see how the court can avoid suppressing it. They can't legitimately ignore that these same illegal acts were used to produce evidence for tens of thousands of similar cases. If the court gives the RIAA a pass, it would be telling them, and everyone else, that these laws can be ignored if it's convenient to do so.

Anonymous said...

lost in thought:

You don't quite understand, perhaps. MediaSentry used P2P software like anyone else. And so they received a lot of packets. Unlike normal people, they packet sniffed those packets -- copied them, read them in great detail, logged the IP of origin.

Defendants claim that in this situation, such copying is illegal, if I understand aright.


Anonymous said...

Thank you XYZZY, that explanation was helpful. I didn't realize that they were intercepting traffic over the network, I assumed they were just doing an ordinary search and downloading, but what you said makes sense to me. Thanks!

lost in thought

Reluctant Raconteur said...

Based on past statements, the RIAA's position is that protection of their copyrights trumps all other considerations. The ends justify the means.

Anonymous said...

"Based on past statements, the RIAA's position is that protection of their copyrights trumps all other considerations. The ends justify the means."

I think/hope this judge has had enough of the RIAA's tricks and lies and will run his court accordingly.

Geoff Whiting said...

The terms of service for things like Kazaa (and inherently their nature) tend to include things like allowing other users access to files on one's computer for the purpose of sharing information.

Since MS was authorized by the copyright holders, it did not violate any laws by using the P2P services and was accessing content specifically made available for the intent of sharing.

By using the service, it feels like Thomas inherently consented to others accessing the files she was, which would make this legit.

Anonymous said...

Geoff Whiting:

"Since MS was authorized by the copyright holders, it did not violate any laws by using the P2P services and was accessing content specifically made available for the intent of sharing."

Have you read Defendant's documents? There are several things MediaSentry does that look rather illegal (we'll find out the answer to that later). The RIAA can't give MediaSentry immunity to ignore state and federal laws, you know!


Anonymous said...

The point of the wiretapping everyone seems to be missing is this: the law says it's NOT, let me repeat that, it's NOT illegal to intercept packets if you're one of the parties involved in the conversation, UNLESS, and here's the big kicker, UNLESS you are intercepting the packets in the commission of a separate crime. Meaning, since MediaSentry is capturing the packets while illegally acting as a private investigator, breaking state and federal license laws in the process, that is how the "packet sniffing" could be considered illegal wiretapping.

As for the TOS of Kazaa, I think that is used to show that files being shared on Kazaa could not be considered public as users have to first download the software, agree to the TOS, and use a specific username and password to access the program. The general public cannot just see what is being made available unless they become a Kazaa user, thus no longer being a general member of the public. A bit of a stretch, but the argument might have some validity.

Interested Observer

Anonymous said...

Umm, if you'd read the memorandum, they quote from the Kazaa terms of service. When MediaSentry installs Kazaa and agrees to the ToS they agree not to:

- monitor traffic/make search requests in order to accumulate personal information on users
- collect or store personal data or other info about other users
- interfere or disrupt with the software
- violate any law using the software
- use the software with any software or method that will monitor or interfere with the software

I think MS is clearly violating the Kazaa terms of use.

Anonymous said...

Wiretapping as we understand it relating to the phone networks is not relevant here.

for file sharing software to work, it my advertize both what you are sharing and what you are downloading. Also it must advertize which parts of the file you have already.

These pieces of information (which includes an IP address to contact your computer) are public.

of course, just because some piece of software is advertizing that you have 100% of the Brittany Spears collection on your computer does not make it so.

The question is, what do MediaSentry have to do to get beyond an easy to fake advert to something that might be considered evidence?

At the moment, they hack their file-sharing client to make it download from only one peer, "proving" that if this is a regular case, that the file sharer has distributed a copy.

Where this falls down is that the only copy they can prove is the copy that they (MediaSentry) made, and as agents of the IP cartel, they were within their rights to do so, and file-sharer was within their rights to provide them with a copy.

That's the rub, right there, all they can prove is that a file sharer made it possible for them to download one copy, which was legitimate due to them being agents of the copyright holder.

Anonymous said...

June 3, 2009 1:09:00 PM EDT Anonymous:

Please sign your post.

And, use of the internet does not waive your right to anonymous free speech and such. Just being online, and doing things online, does not make your actions public, even though the internet connects to a lot of places.

Please read Thomas-Rasset's documents for a clearer explanation.


Anonymous said...

Exactly... they are not able to prove that any distribution actually took place, merely the fact that files were made available... which is why the original verdict was vacated in the first place.

This motion sounds like a clever attempt to sweep the re-trial quickly before it even begins.

Albert said...

The Judge needs to tell the Plaintiff:

You must by some date produce evidence to the Court showing that a "Copy" or "Phonorecord" was distributed "To the Public", meaning someone OTHER than MediaSentry, who is an AGENT of the Copyright holder.

If I were the Judge and they did not show me such evidence BEFORE trial, I would dismiss for failure to state a cause of action.

Of course we know a dismissal is in order because there is NO evidence that a copy was ever provided to the public, and without that hacked KaZaA client that only downloads from a single source, there might not have EVER been a full download from the Defendant. This is because by default the client attempts to download the file in many pieces from many sources and any one source might have only under normal conditions provided just a few thousand bytes of the total file size, which is close to fair use levels.