Defendants: RIAA's private eyes are watching us—illegally

Last week a pair of rulings further muddied the waters around the RIAA's argument that making a file available over a P2P network constitutes distribution as defined by the Copyright Act. This week, the hot issue is the role that MediaSentry plays in the RIAA's legal campaign and whether the company should be licensed as a private investigator. A pair of defendants in separate cases are arguing that the company does need a license and that all evidence gathered by it should be excluded. The RIAA, in turn, is arguing that no license is necessary—and that even if MediaSentry's evidence was obtained illegally, it should still be admissible.

Defendants: MediaSentry needs a license and the evidence it collected is worthless

A college student at Northern Michigan University representing him or herself recently submitted a motion seeking to quash a subpoena directed at the school, arguing that the data collected by MediaSentry was "obtained through felonious conduct." The motion refers to a ruling made last month by the Michigan Department of Labor and Economic Growth that MediaSentry needs to be licensed in order to "perform regulated activities." Regulators at the department have reportedly sent the company a letter informing them of the decision, although MediaSentry refused to confirm receipt to Ars. The company has also received a cease-and-desist order from the Massachusetts State Police saying that its investigative activities violate state law.

Doe number 5 in LaFace Records v. Does 1-5 believes that's enough to exclude MediaSentry's data. "[E]quity demands that Plaintiffs not be permitted to benefit in any way from the felonious conduct of their agent," argues the student. "It shocks the conscience to think any subpoena would be sustained when based solely on such outrageous conduct."

A newly-reported contested case in Florida raises many of the same issues. In Atlantic v. Boyer, Eva Boyer has filed her answer, affirmative defenses, and counterclaims in response to a lawsuit filed against her by the RIAA earlier this year. Boyer accuses the RIAA of "abusing" the federal judiciary and hiring "unlicensed private investigators" who "receive a bounty to invade private computers and... networks."

Under Florida law, private investigators are required to obtain a license. Boyer points out to the court that MediaSentry lacks such a license, saying that the labels have "conspired among themselves and others" to illegally investigate Florida residents.

RIAA: no license necessary

A copy of the cease-and-desist
order sent to MediaSentry

For its part, the RIAA has consistently argued that MediaSentry doesn't need PI licenses, telling Ars that the information the company collects is available for "anyone to see." A new filing by the RIAA in Lava v. Amurao seeks to thwart the defendant's motion to exclude the evidence collected by MediaSentry. The labels argue that MediaSentry is a "copyright investigator," not a private investigator, and therefore the New York law requiring PIs to be licensed doesn't apply.

The RIAA appears to overstep by arguing that licensing is also impractical because MediaSentry "can have no way of knowing... the location from where [the files] are being distributed." Yes, an IP address is obviously insufficient to pinpoint the name or address of someone who might be using that address. But a simple nslookup can often be enough to determine that a KaZaA user is a Comcast subscriber in the Los Angeles metropolitan area or is using the Harvard University network. In short, MediaSentry should be able to quickly figure out roughly where a user is located.

The RIAA also argues that the cost of obtaining licenses in all 50 states would be "prohibitive." The labels cite the $10,000 bond required in New York and say that multiplying that by 50 states would "seriously interfere with a copyright owner's legitimate right to investigate and protect its copyrights from infringement." This, coming from an organization that has shown zero hesitation to spend millions of dollars pursuing well over 20,000 individual copyright infringement lawsuits, seems implausible.

Even if it turns out that the evidence was obtained illegally, the RIAA argues, the evidence collected by MediaSentry should still be admissible. "Ultimately, the law is clear that even illegally obtained evidence, which Defendant cannot show here, is still admissible in a civil case," reads the RIAA's filing. "Contrary to Defendant's contentions, there is simply no policy justification whatsoever that would support the exclusion of relevant evidence of copyright infringement."

Copyright attorney Ray Beckerman reports on Recording Industry vs The People that the motions in Lava v. Amurao will be argued this Friday in White Plains, NY, so it's possible that the judge will issue a ruling on the PI licensing issue in the weeks or months ahead. The RIAA is seeking to dismiss the case against Rolando Amurao after determining that his adult daughter is the alleged copyright infringer.

As was the case with the making available rulings, we could see different judges coming down on different sides of the issue. There's a lot at stake here, especially if it turns out that some of MediaSentry's evidence was collected illegally. The uncertainty around MediaSentry's status may be behind the company's recent decision to remove all references to its "investigative services" from its website.

Further reading

• Ray Beckerman dug up the filings in this report and has links to PDF copies of the documents. These include a copy of a cease-and-desist order sent by the Massachusetts State Police to MediaSentry

Original here