Mediasentry Violates Cease & Desist Order

NewYorkCountryLawyer writes "On January 2, 2008, the Massachusetts State Police ordered MediaSentry, the RIAA's investigator, to cease and desist from conducting investigations in Massachusetts without a license. Based on what appears to be irrefutable proof that MediaSentry has been violating that order, the Boston University students who tentatively won, in London-Sire v. Doe 1, an order tentatively quashing the subpoena for their identities, have brought a new motion to vacate the RIAA's court papers altogether, on the ground that the RIAA's 'evidence' was procured by criminal behavior."

Mediasentry's repsonse

IP addresses are not a reliable method of proving crimes on the internet.

Re:Mediasentry's repsonse

The Parent is, in fact, insightful. If you refute RIAA and their minions' claim that they should be allowed to (and is able to) pick out illegal file sharers based on IP address, you can't turn around and use IP address evidence to prove that MediaSentry defied the court order.

Yeah, it sucks, but what's good for the goose is good for the gander. It must be -- once we allow double standards, we're no better than them.

Re:Mediasentry's repsonse

I think you have that backwards:
Either
a) IP addresses are not admissable, so the RIAA's "evidence" has no standing and the case should be dropped without prejudice,

or

b) IP addresses are admissable, so the RIAA's "evidence" has no standing and the case should be dropped WITH prejudice.

Re:Mediasentry's repsonse

The problem is that with your (b), you set another precedent for IP addresses being admissible evidence, which allows that type of evidence to be used by RIAA and MediaSentry in the future. We do not want that.

Re:Mediasentry's repsonse

IANAL.
There are 2 problems with this entire line of thinking:

1) This is not a double-standard.

In the first scenario, MediaSentry is submitting a dynamic IP address that cannot be linked to an individual. In this scenario, they are presenting what is probably a static IP address tied to MediaSentry's offices. That is much stronger evidence. Also, it sounds like the second scenario is being used as pre-trial evidence that MediaSentry violated the restraining order -- not as evidence to be admitted in a trial.

2) IP addresses should always be admissible evidence.

The value of an IP addresses varies. Sometimes it is a dynamic IP. Other times it is static, but not assigned to an individual port or desk. Other times it is tied to a specific computer that only a few people have access to. IP addresses should always be admissible - but the judge and jury must understand the difference. Making a blanket rule like "IP addresses are never admissible in court" is too limiting.

It would be like saying that scratch marks are never admissible as evidence because you cannot specifically tie that to an individual. The scratch marks still indicate that a struggle happened, and where it happened, and who might have been in that location when they were made. etc.

Your analogy doesn't work

The problem with your analogy is that breaking and entering, growing pot, and kidnapping are all crimes provable through existing forensics.

An IP address may or may not be a person - it's still being decided. Therefore you're breaking into a home and discovering a crime - but somehow nobody knows who's home it is. That's where your analogy breaks down.

Re:Mediasentry's repsonse

Not quite. You can't use an IP address to definitively identify an individual. But you can damn sure use one to identify a location. Which is what matters here - do the IP addresses show that MediaSentry acted illegally by doing their thing in a state where they were enjoined from doing their thing?

Re:Mediasentry's repsonse

Not quite. You can't use an IP address to definitively identify an individual. But you can damn sure use one to identify a location.

No, you can not. It is fully possible, however unlikely, that MediaSentry upon being blocked from doing investigations in Mass., rented out a VPN line to a company that was, in fact, allowed to do so. In which case MediaSentry is just a provider and carrier, much like the University that provides a student with an IP address is just a provider and carrier, and has no responsibility in what the student uses the line for. You simply can't tell from the IP address.
We must be very careful that we don't apply rules to the enemy that we don't want them to turn around and use against us.

Re:Mediasentry's repsonse

In which case MediaSentry could produce documentation to that effect, thus making the evidence inadmissible.

The onus must never be on the defendant to prove his innocence. That's just like RIAA wants people to prove that it wasn't them that downloaded something.

No, no and NO; we must not allow this to happen. Ever.

Our whole justice system is based on the accuser having to provide evidence against the accused, and that the absence of evidence counts for the defendant, never the accuser.

Re:Mediasentry's repsonse

I disagree that you can use one to identify a location. I can be anywhere in the world and, according to my IP, it will appear to you I'm in Fairbanks AK, due to this handy little VPN I use. Granted, I have to have been granted access to the VPN, but the fact remains that IP addresses do not NECESSARILY denote location, either. It's the same problem with claiming an IP denotes an individual. An IP address CAN tell you those things, but it does not NECESSARILY tell you those things. A rectangle CAN be a square, but it is not NECESSARILY a square.

-G

Not so brilliant

Or RIAA pays MediaSentry to take a fall, admitting that yes, IP addresses irrefutably shows that they did a wrong thing. And by the way, y'rhonors, now that IP addresses have been shown to be good evidence, there's these 5000 cases that RIAA wants you to look at...

That would be a big win for RIAA, only made possible because the opponents of RIAA tried to apply double standards, and, by doing so, killed their own defense.

*SOMETIMES* they are...

IP addresses of smalltime users who connect dynamically via big ISPs or are behind NAT routers aren't too reliable.

IP addresses of corporations who buy blocks of addresses or entities who have machines inside server farms can be a very reliable form of identification.

I don't know the exact details of the case so I'm not judging. I'm just saying that reliability depends on circumstance.

Laws

The law applies to you. The law does not apply to us.

Yours truly,
MegaCorp America (tm)

Important note

Most likely, the only papers that they will be able to vacate are those based on investigations taking place after being served with the C&D order. Whether that costs them enough evidence to prevent them from winning a judgment remains to be seen, however...

Re:Important note

"Most likely, the only papers that they will be able to vacate are those based on investigations taking place after being served with the C&D order. Whether that costs them enough evidence to prevent them from winning a judgment remains to be seen, however..."

As I understand it, MediaSentry is not licensed in the state of Massachusetts period. That means that their previous behavior was illegal as well. The C&D is a legal tool to make it absolutely clear to someone doing an activity that their actions are illegal - it does not relieve them of responsibility for those actions before the C&D.

Re:Important note

As I understand it, MediaSentry is not licensed in the state of Massachusetts period. That means that their previous behavior was illegal as well. The C&D is a legal tool to make it absolutely clear to someone doing an activity that their actions are illegal - it does not relieve them of responsibility for those actions before the C&D.

I would say you "understand it" pretty well.

Re:How about sanctions?

There's a general rule that any subpoena has to have a good faith evidentiary basis. While most Slashdotters are aware that MediaSentry's "evidence" doesn't meet that standard, and the Oregon Attorney General [blogspot.com] certainly picked up on it [blogspot.com], most judges -- in these ex parte discovery applications -- haven't. The fact that the evidence was procured through the commission of a crime may get Judge Gertner's attention, helping her to finally realize that the RIAA does NOT have a good faith evidentiary basis for its application.

Irrefutable proof?

I'm not doubting in any way that there is proof they have violated the cease and desist. I think that sounds like something Media Sentry would gladly do for the RIAA, but when I click on the irrefutable proof link in the summary I don't see any proof. When I went go the "Exhibits (Cease & desist order, printouts)*" link, I can see the cease and desist order and some printouts labeled from early 2007 but nothing from 2008? Could someone point me in the right direction for the evidence? Thanks.

Re:Irrefutable proof?

I'm a bit confused on the Irrefutable proof as well. Somebody correct me if this guess is wrong, but:

a. The exhibit document lists a number of reports generated by Mediasentry

b. The documents identify IP addresses of supposed infringers

c. These IP addresses on a quick traceroute identify these investigations to be located in Massachusetts (at leastone IP is at Boston University)

d. These documents have been submitted to courts as evidence (each document has a case #)

e. Because the IP address is in Massachusetts, the investigation has crossed into these borders. Because they have been submitted to courts, it is proof of investigation.

Otherwise, I think the proof needs some notes along with it.

No meaningful retribution

Will they have to pay a fine? Maybe, but ten bucks says* it won't be the hundred thousand dollars the RIAA can collect for a single copyright violation. Will anybody go to jail? Maybe, but again ten bucks says* no way in hell.

Did someone say "rule of law"?

-mcgrew

*offer void where prohibited. I live in Illinois, and gambling is illegal here. Except in the casinos. And the state lottery. And horseracing tracks. And in the bars that have bribed the cops to look the other way.

Me? Cynical? Whatever gave you that idea?

Another wrinkle......

is that it appears that MediaSentry has been telling the State [p2pnet.net] that it IS in compliance. Hmmmm.... could that be yet another crime?

Here's the thing...

If an individual went around pretending to represent the law, then he would get into serious trouble right away.
Why aren't the police taking direct action against the RIAA's illegal operations instead of just sending them a cease-and-desist letter?

I can hear it now

RIAA: Somebody set up us the bomb
The People: All your papers are belong to us. Make your time.

Surprised?

And this surprises who? The RIAA and MediaSentry have repeatedly shown that they don't care about the law. Their gaming of the legal system is proof of that.

The problem is that our stupid courts don't put a stop to this illegal behavior right away and then, they continue to abuse the system. After a while, it becomes allowable behavior.

If our legal system would put a stop to this, it would stop. Since they continue to allow it, this behavior will also continue.

Re:Ummm ... proof is where?

The "irrefutable proof" is in the Exhibits (Cease & desist order, printouts) [ilrweb.com] (pdf). Boy are you a lazy reader.