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RIAA Backs Down On "Unlicensed Investigator"
Posted by
kdawson
on Sun Dec 16, 2007 06:33 PM
from the fight-fairly-now dept.
from the fight-fairly-now dept.
NewYorkCountryLawyer writes "Texas grandmother Rhonda Crain got the RIAA to drop its monetary claims against her after she filed counterclaims against the record companies for using an investigator, MediaSentry, which is not licensed to conduct investigations in the State of Texas. The RIAA elected to drop its claims rather than wait for the Judge to decide the validity of Ms. Crain's charges (PDF) that the plaintiff record companies were 'aware that the... private investigations company was unlicensed to conduct investigations in the State of Texas specifically, and in other states as well... and understood that unlicensed and unlawful investigations would take place in order to provide evidence for this lawsuit, as well as thousands of others as part of a mass litigation campaign.' Similar questions about MediaSentry's unlicensed investigations were raised recently by the State Attorney General of Oregon in Arista v. Does 1-17"
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Granny Sues RIAA Over Unlicensed Investigator 206 comments
NewYorkCountryLawyer writes "An elderly, non-file-sharing grandmother from East Texas, who had been sued by the RIAA after being displaced by Hurricane Rita, has sought leave to file counterclaims against the RIAA record companies for using unlicensed investigators. In her counterclaims (PDF) Ms. Crain claims that the record companies 'entered into an agreement with a private investigations company to provide investigative services which led to the production of evidence to be used in court against counterclaim plaintiff, including the identification of an IP address on the basis of which counterclaim defendants filed their suit... [They] were at the time of this agreement aware that the aforementioned private investigations company was unlicensed to conduct investigations in the State of Texas specifically, and in other states as well... [T]hey agreed between themselves and understood that unlicensed and unlawful investigations would take place in order to provide evidence for this lawsuit, as well as thousands of others as part of a mass litigation campaign... [T]he private investigations company hired by plaintiffs engaged in one or more overt acts of unlawful private investigation... Such actions constitute civil conspiracy under Texas common law.'"
[+]
Oregon AG Seeks to Investigate RIAA Tactics 114 comments
NewYorkCountryLawyer writes "Turning the tables on the RIAA's attempt to subpoena information from the University of Oregon, that state's Attorney General has now filed additional papers to conduct immediate discovery into the RIAA's 'data mining' techniques. These techniques include the use of unlicensed investigators, the turning over of subpoenaed information to collection agencies, and the obtaining of personal information from computers. The AG pointed out (pdf) that 'Because Plaintiffs routinely obtain ex parte discovery in their John Doe infringement suits ... their factual assertions supporting their good cause argument are never challenged by an adverse party and their investigative methods remain free of scrutiny. They often settle their cases quickly before defendants obtain legal representation and begin to conduct discovery.'"
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Is she going to sue MediaSentry? (Score:5, Interesting)
Re: (Score:2)
Re:Is she going to sue MediaSentry? (Score:5, Insightful)
Even if RIAA loses money on this, it doesn't matter much. Until some RIAA board members are facing real prison time, they will use whatever tactics the manage to get away with.
Parent
direction is good though (Score:3, Insightful)
House of Cards (Score:3, Funny)
Actually, it is more like one of those building implosions. It starts slow, then...
The RIAA is getting hit more and more lately. More judges are finding against them. More people fighting back. More states and schools refusing to play along. 2008 may be the year they give it up.
Maybe.
Re:House of Cards (Score:5, Funny)
Parent
Re: (Score:3, Insightful)
When is piracy not bad?
Re:Is she going to sue MediaSentry? (Score:5, Insightful)
The problem is the loaded term "piracy". Is it bad to download a few songs from an artist that you've heard of but never heard? I've done that several times. In the vast majority of those cases, I would not have bought the artists albums if I had not downloaded their songs first. In some cases, I didn't like what I heard & left it at that. In several other cases I have since bought albums by those artists, and in at least a few cases, I now own every CD available from the artist. So would you call my "piracy" in these cases a bad thing, even though they ended up resulting in more money in the artists pocket?
Parent
Re: (Score:3, Informative)
I've also done "several" investigations of the spammers — using tools like whois and nslookup. I was not licensed to perform the investigations — in any state.
According to this grandma's counter-suit and — more importantly — to all the kudos she got from the Slashdot crowd, all of those spammers should have a good case against me...
I may understand (and even accept) the desire to keep tabs on gun-wielding private detectives like Dr. Watson or "Maltese Falcon"'s main character, but MediaSentry, no doubt, has never even set foot in Texas, all their "investigations" being limited to the Internet. Twisting the law in this fashion should be troubling... But hey, it is RIAA, so whoever sticks whatever up theirs is our hero...
What have you done with the information you got from your investigations? Did someone pay you to make those investigations? I don't know the Texas law on private investigators, but I believe the requirement for a license comes in when someone pays you to do the investigation on their behalf.
Re:Is she going to sue MediaSentry? (Score:5, Insightful)
Depends of your personal definition of "piracy". The term "piracy" was, right from the start, a new term intended to be as loaded as it could be to refer to the unauthorized commercialization of copyrighted works. In that time, no normal person could possibly consider that guy selling bootleg tapes/books to be a menace to society. After all, the only thing that that guy did was duplicate something and sell it cheaper than others. That couldn't possibly hurt society.
So, in order to fight that perceived source of lower profits, the companies that were in the business of selling authorized copies of those works decided to shut that down. As they weren't able to gather public support for that battle then they decided to start a public relations campaign against the unauthorized commercialization of copyrighted books (their competition). The first step was coining a negative image to the unauthorized sellers, which originated terms like "bootlegger" and "pirate", evil figures associated with violent, organized crime. It's easier to fight someone/something when they are evil. There was no surprise a while back when some american retarded record company spokesperson started associating "piracy" to terrorism.
Now those companies intend to include in that definition people who have absolutely nothing to do with the old definition of "piracy". Now the record companies, motivated by greed and the lust for control, want to label anyone who downloads anything remotely copyrighted as a "pirate". There is no commercialization of any copyrighted work. Now, instead of attempting to smear and fight the distributors, they are trying to attack the end consumer.
Does it make any sense to label as pirates people who bought unauthorized copies of copyrighted works? Obviously not. Yet, the record companies are trying to go the extra nonsense mile and pin that nasty, loaded label on people who access those works without ever exchanging any money.
So it isn't a question of "when is piracy not bad". As questionable as "piracy", the unauthorized commercialization of a copyrighted work, may be, the real question that must be placed here, and unfortunately you failed to understand, is why is non-"piracy" actions being labelled as "piracy" in the first place? If I download something for personal use after paying absolutely nothing for it then how exactly can you claim that I'm commercializing an unauthorized copy of some copyrighted work? Moreover, why should anyone be called a "pirate" if what that person is doing is perfectly included in their nation's fair use doctrine?
Parent
Re:Is she going to sue MediaSentry? (Score:5, Insightful)
Parent
When was (old school) piracy good? (Score:3, Insightful)
Re: (Score:3, Informative)
It's just a matter of the fans doing unauthorized promotion.
Such activities are probably FAR more likely to be effective
than conventional methods. This is especially true for acts
that aren't the darlings of the cartel and thus do not get
airtime in the payola system.
Once upon a time, before Clear Channel, old school radio
stations would play an entire album from start to finish.
p2p file sharing pales in comparison to that.
Re:Is she going to sue MediaSentry? (Score:5, Interesting)
Heck, I'd Paypal a few bucks over to see how this turns out. I figure another ten thousand people are with me. If we all chip in $20, that'd be enough to get this ball rolling.
Parent
Re:Is she going to sue MediaSentry? (Score:4, Funny)
Parent
Re:Is she going to sue MediaSentry? (Score:5, Funny)
He wanders around, and the rabbits are screwing like rabbits, the minks are screwing like minks, and the elephants are... well, doing whatever elephants do.
Then he comes and sees some snakes, and they're not doing the nasty. Noah asks them what's wrong, and they say "We're adders!"
So Noah goes away and thinks. He then comes back, cuts down a couple of trees, and makes picnic tables from the logs. He tells the snakes to hang out there, and goes away.
A few hours later, he comes back and sees that the snakes are getting it on, which just goes to prove...
Even adders can multiply using log tables!
Parent
Re:Is she going to sue MediaSentry? (Score:5, Funny)
Ask Sir Mathsalot, not me. I am but a knave.
Parent
Re: (Score:3, Funny)
And e^(pi*i) is actually -1 + -0.000000000001267i, which is also not quite -1.
Re: (Score:3, Funny)
Re: (Score:3, Insightful)
-jcr
Re: (Score:2, Interesting)
I mean, it sounds like it's like if you decided to sue someone, and they said "You know what, I'll just drop everything because I don't want the judge to pass a verdict." However, I thought the Defendant couldn't drop the suit, the Plaintiff who brought the suit, is the only one who could drop it???
Re: (Score:3, Informative)
Generally a party can dismiss its own case. If the opposing party has filed counterclaims, however, the case still proceeds on those.
More important question (Score:2, Insightful)
Re: (Score:3, Informative)
Re:More important question (Score:5, Funny)
Ah.. it is so nice when the worm turns.
Parent
Re:More important question (Score:5, Informative)
Parent
Re:More important question (Score:5, Informative)
1702.101. Investigations Company License Required
Unless the person holds a license as an investigations company, a person may not:
(1) act as an investigations company;
(2) offer to perform the services of an investigations company; or
(3) engage in business activity for which a license is required under this chapter.
***
1702.104. Investigations Company
(a) A person acts as an investigations company for the purposes of this chapter if the person:
(1) engages in the business of obtaining or furnishing, or accepts employment to obtain or furnish, information related to:
(A) crime or wrongs done or threatened against a state or the United States;
(B) the identity, habits, business, occupation, knowledge, efficiency, loyalty, movement, location, affiliations, associations, transactions, acts, reputation, or character of a person;
(C) the location, disposition, or recovery of lost or stolen property; or
(D) the cause or responsibility for a fire, libel, loss, accident, damage, or injury to a person or to property;
(2) engages in the business of securing, or accepts employment to secure, evidence for use before a court, board, officer, or investigating committee;
(3) engages in the business of securing, or accepts employment to secure, the electronic tracking of the location of an individual or motor vehicle other than for criminal justice purposes by or on behalf of a governmental entity; or
(4) engages in the business of protecting, or accepts employment to protect, an individual from bodily harm through the use of a personal protection officer.
(b) For purposes of Subsection (a)(1), obtaining or furnishing information includes information obtained or furnished through the review and analysis of, and the investigation into the content of, computer-based data not available to the public.
***
1702.381. Civil Penalty
(a) A person who is not licensed under this chapter, who does not have a license application pending, and who violates this chapter may be assessed a civil penalty to be paid to the state not to exceed $10,000 for each violation.
(b) A person who contracts with or employs a person who is required to hold a license, certificate of registration, or security officer commission under this chapter knowing that the person does not hold the required license, certificate, or commission or who otherwise, at the time of contract or employment, is in violation of this chapter may be assessed a civil penalty to be paid to the state in an amount not to exceed $10,000 for each violation.
(c) A civil penalty under this section may be assessed against a person on proof that the person has received at least 30 days' notice of the requirements of this section.
1702.382. Injunction
(a) An attorney for the department, the attorney general's office, or any criminal prosecutor in this state may institute an action against a person to enjoin a violation by the person of this chapter or an administrative rule.
(b) An injunction action instituted under this section does not require an allegation or proof that an adequate remedy at law does not exist or that substantial or irreparable damage would result from the continued violation to sustain an action under this section. A bond is not required for an injunction action instituted under this section.
1702.383. Action for Civil Penalty or Injunction
If a person has violated a provision of this chapter for which a penalty is imposed under Section 1702.381, an attorney for the department, the attorney general's office, or any criminal prosecutor in this state may institute a civil suit in a Travis County district court or in a district court in the county in which the violation occurred for injunctive relief under Section 1702.382 or for assessment and recovery of the civil penalty.
Parent
They should have dropped the suit entirely (Score:5, Interesting)
Go Grandma! Go!
Re: (Score:2)
IANAL, but if you read the pdf document, it does not explicitly say that the RIAA is dropping its claim for damages either -- but I think that because both parties request entry of final judgment on the basis that there will be an injunction against the Granny, that ends the matter for both sides -- the RIAA can no longer claim m
An effective weapon for now... (Score:5, Funny)
What's the significance of a license (Score:3, Interesting)
Re:What's the significance of a license (Score:5, Informative)
What if Texas applies rules to investigations that protect Texans, but not others, from certain practices, or if certain things are permitted under Texas regulations but prohibited elsewhere?
I think it would be unlikely for a judge to say "Okay, we'll accept agencies licensed in Texas", because you then loose the ability to enforce investigators operating in your state to conform to the guidelines of your state - anybody could go get licensed in the most lax state for the area of investigation that is their primary focus.
Parent
Re:What's the significance of a license (Score:5, Informative)
I am curious what the significance of a license is. I assume a licensed investigator has to take a test and possibly be bonded. How does that affect their ability to collect evidence or impact their credibility in court?
It is considerably significant. If you are licensed, then you know that it could be revoked if you behave unethically or illegally. If you are licensed, it is an indication that as far as anyone knows, you haven't behaved unethically or illegally in the past. That DOES tend to enhance credibility in court.
The license needs to be in the particular state since otherwise, in addition to shopping for the most lax state, some might cheat by getting licenced in one state and doing all of their dirty deeds in another state outside the jurisdiction of the licensing board.
It matters in a federal case because you're not allowed to present illegally gathered evidence in court. Investigators are required to obey all relevant federal, state, and local laws.
Parent
Re:What's the significance of a license (Score:5, Insightful)
Parent
Not surprising (Score:5, Interesting)
Re: (Score:3, Informative)
They probably thought it was better to drop one case than to risk a precedent-setting decision that would have invalidated hundreds of other similar "investigations" and perhaps result in some sort of class-action suit.
The RIAA is counting on the defendant to not sue for a declaratory judgement.
You don't even have to be sued to do this. If you think someone is going to sue you over something, you can premptively ask the court to decide [some issue]. This allows potential defendants to take the initiative.
Anyone in Texas (or any other state for that matter) who has received one of the RIAA's form letters should sue for a declaratory judgement that MediaSentry is not licensed for private investigations in [Your State Here]
Re: (Score:3, Insightful)
The fact that an organization the size of the RIAA, with its nearly unlimited resources, would effectively throw up their hands and walk away should speak volumes to other victims and consumers in general, and I'm certain the brightest legal minds in the US are reviewing this case with a fine-toothed comb to discover exactly what the perceived weaknesses were.
Well I don't know about the "brightest legal minds" but I'm certainly "reviewing it" and don't think I need a "fine-toothed comb" to discover the weakness. It's the fact that their entire house of cards is built on something that's inadmissible in evidence.
Why try so hard to appeal to emotion? (Score:4, Insightful)
I mean sure, it's useful to keep in mind that there are human beings involved here, but any more than that is a fairly obvious attempt at clouding objective discussion by appealing to sympathy. It annoys me constantly, and I would think any semi-intelligent person would see right through this. If the facts are so firmly on the defendants' sides as Ray would have us all believe, why is it necessary to resort to such blatantly manipulative appeal to emotion?
Re:Why try so hard to appeal to emotion? (Score:5, Insightful)
If the RIAA was so sure about their cases as they would have you believe then they would take each and every case to court instead of offering these $3000 get out of jail free cards and backing out of any and all cases where they may look like they will lose.
But hey its fine for them, its just not fine for the grandmother/disabled person/single mother of two to try to shame the RIAA into dropping their case by giving them some bad publicity.
Parent
Not only emotion... (Score:5, Interesting)
Part of this is to show the sheer innaccuracy of the RIAA lawsuits in the first place.
I'm making a list. To my knowledge, they've sued:
There's probably more, but I haven't been paying attention.
If the facts are so firmly on the defendants' sides, why not appeal to emotion?
Just understand, pointing out the people involved -- especially when those people are unlikely to be capable of piracy, much less want to -- is not always an appeal to emotion. Sometimes, it's simply an appeal to common sense -- which is why you will occasionally see articles tagged "suddenbreakoutofcommonsense", for when the RIAA/MPAA is losing.
Parent
Re: (Score:3, Funny)
The grandmothers, deceased, teens and such are much better examples of the unreasonable nature of the lawsuits. A teenager is going to have to cough up his college money to pay, if he even have that
Re:Why try so hard to appeal to emotion? (Score:5, Insightful)
Parent
Re:Why try so hard to appeal to emotion? (Score:5, Interesting)
Raise your hands.
I don't see any hands.
Parent
A word to the wise (Score:4, Funny)
Case closed (Score:5, Insightful)
1. The case is now closed, counterclaims and all.
2. I have a hunch MediaSentry is not licensed anywhere.
3. The injunction is a consent decree. It doesn't carry with it any implied finding of liability at all. It's merely a promise, by a 70-something lady who never heard of filesharing, that she will not in the future engage in unauthorized filesharing of plaintiffs' recordings.
Re:Case closed (Score:4, Insightful)
Parent
Re: (Score:3, Insightful)
Well, so much for equal justice under the civil law (I guess that only applies to criminal cases and even there money makes some people more equal than others). Isn't this precisely the sort of abuse that class action was designed to prevent? Perhaps some enteprising lawyers will find a way to collect from the RIAA on behalf of this class of defendants, well we can hope anyway. Thank you NewYorkCountryLawyer for answering my question.
There is a class action going on. Andersen v. Atlantic [blogspot.com].
There's a sting about to happen (Score:5, Interesting)
I have a job, but I'm "on a certain list" so these kinds of job offers come across my desk.
It's not good, and it's not pretty. Someone with Serious Pockets is looking to screw a Lot Of People over copyright re: file trading.
It's all coming out of the "heartland USA". I moved out of the states a while ago. But "people know me" so I get rumblings/job offers before others do. If this investigation goes down as it seems, it will be ugly.
For whom? Well teh music industry of course. They're a bunch of fucking morons with a business model that bears no resemblance to what the market is requiring. So rather than grow a lobe for profit (vis the Ferengi) they would rather do the American Thing and sue everyone into the dirt. Morons.
So: word up: the morons are on the march...
RS
Re: (Score:3, Informative)
Re: (Score:3, Interesting)
What they didn't want is for their suit to be thrown out with the Kitchen sink because of their reliance on information provided by unlicensed investigators. If that happens, they lose anybody in the state who is looking to settle anytime soon.
As it stands, it will take some time before another defendant even has th