Oregon AG Seeks to Investigate RIAA Tactics

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.'"

This sounds hilarious eh I mean fun

[SmallFurryCreature]

What does this mean, if I read it correctly is this really the state department responsible for prosecuting CRIMINAL cases who has launched ON THEIR OWN an investigation of RIAA methods?

Is Oregon some red state of the US? Is the prosecutor involved to old to care about his career?

I hate to get excited over nothing but this seems like a major setback for the RIAA and their underhanded tactics. A real criminal investigation? Neat.

Finally

[explosivejared]

I don't want to count the chickens before they are hatched, but I think we are beginning to see a real change in the direction of this thing. Recall EMI wanting to stop funding the RIAA. There is real success happening here. Only good can come from this scrutiny. For far too long now they've been trolling the courts and beating up on the little guy. So I say Hooray for Oregon's Attorney-General.

(see comment about chickens before hatching)Although as I type this I recall the new restrictive copyright laws in Switzerland and Canada. This has tempered my optimism, but still I think things are finally changing.

About time!!!!

[8127972]

One can only hope that:

1. Other states copy this (not to mention the feds).
2. The RIAA gets some sense and backs down.
3. The public can enjoy their music without fear of being involved in a witch hunt.

I'm likely dreaming, but one can dream can't they?

The Gist of the Argument

[Billosaur]

Taken from the blog Recording Industry vs The People

• Carlos Linares, upon whose declaration the subpoena was issued, had no first hand information whatsoever;
• the RIAA's "data mining" investigation does not reveal how the files were obtained or whether they were ever shared with anyone;
• the RIAA papers did not show that any infringing activity actually took place;
• MediaSentry appears to have been conducting an investigation without an investigator's license, in violation of ORS 703.405 and ORS 703.993(s), which is a crime;
• in Atlantic v. Andersen, based on the same theories and investigative techniques as those used here, they had been found by the Court to have stalled and resisted discovery, before abandoning their case rather than oppose Ms. Andersen's summary judgment motion;
• the RIAA appears to have been abusing the judicial process by obtaining information through subpoenas which it then hands over to "collection firms" using them "to leverage payment of arbitrary sums of money, based on threats and evidence from the data mining";
• the RIAA concealed a material fact from its original ex parte motion papers, which sought to create the aura of an emergency and the need for immediate ex parte action -- the fact that the University had informed the RIAA in July that the requested information had been gathered and would be preserved;
• the RIAA lawyers falsely implied that the Attorney General's office had failed to "meet and confer" with them prior to making the motion to quash, even though the AG's office had in fact conferred with the RIAA's lawyers;
• the deposition testimony of the RIAA's expert witness Doug Jacobson in UMG v. Lindor tends to indicate that the RIAA has already accessed private information on the computers of University of Oregon students; and
• the RIAA has failed to provide an affidavit of the individual who actually conducted the 'investigation'.

I think they have enough ammunition here to put the RIAA on the defensive. It'll be interesting to see how this plays out, especially what counter-arguments the RIAA comes up with. This smells like the SCO all over again.

I just had a thought - somebody alert the press!

[mmell]

But seriously - if this does carry any water legally, what about all the defendants who have settled with the RIAA in past actions. Do I assume that all those defendants will be provided an opportunity to have their cases reexamined (due to the existence of evidence not available at the times of their trials)?

I wonder if the member companies of the RIAA (Sony, BMG, etc.) could be held liable for RIAA's tactical abuse of the legal system?

Re:This sounds hilarious eh I mean fun

[CFTM]

I would expect more Universities to go to bat on this, particularly after one of the preeminate law professors at Harvard issued a statement to the Universities telling them that the RIAA was full-of-it and should be fought tooth and nail because there is no case...it's taken five years to get this far and it's probably going to take another five years to get the RIAA tombstoned but so be it. On a somewhat related note, Wired ran an interesting article on Doug Morris the CEO of Universal...

Today, when he complains about how digital music created a completely new way of doing business, he actually sounds angry. "This business had been the same for 25 years," he says. "The hardest thing was to get something that somebody wanted to buy -- to make a product that anybody liked."

Just because he's a CEO doesn't mean he's Smart [wired.com]
Is anyone else really surprised, that with such a myopic attitude, that the recording industry has resorted to these sorts of tactics? It's like, come on man, businesses change...every business changes and any CEO worth his salt adjusts to those changes. Stupid assholes got caught with their pants down and now they want to change the laws of the land to take us back to 1997 when they had complete control.

The funniest thing about it to me, is at 16 year old I could see where the music industry was going. My stance on Napster was always "Create a service where I can buy songs for 99 cents a pop, get the songs I want and not an entire CD and I'll pay for the material"; iTunes came along and I have not illegally obtained a piece of music since then. Here's to Apple getting 20% more market share because I want to see this guy fail big time.

Criminal?

[Anonymous Coward]

Is there any hope that they'll indict these folks with criminal charges? Especially for the "unlicensed investigators" bit?

Because I'd sure love to see MediaSentry/BayTSP get shafted like MediaDefender was. With any luck, the latter will go out of business given that they lost the better part of a million dollars over the email leak and they were already operating pretty far into the red.

Also, is there any chance of this opening them up to lawsuits from those who were "investigated"? In other words, might Oregon (or other) residents be able to file a class action even if they already settled with the RIAA?

I'd love to see more lawyers set their sights on the RIAA. When you declare war on your customers (and yes, even "pirates" buy stuff, unless they're boycotting them now), you're NOT going to win the war.

Re:Common Sense!?

[Paradise Pete]

Wow, hopefully this isn't shot down in the court system

At least one of the items listed could lead to criminal prosecution. If the AG decided to file charges it would have an enormous effect. And if other AGs in other states indicate they might follow that lead it will be some mighty nervous times for the Media Sentry boys and the lot.

Isn't this a form of wiretapping?

[Weaselmancer]

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.

I've always wondered how these non-government agencies can get away with this kind of behavior without someone bringing them up on some kind of wiretapping/DMCA charge. Seems like the RIAA would be in violation of the CALEA [wikipedia.org] to me, as well as the DMCA - since they must circumvent access control to gain the kinds of information they claim to have. (And yes, I do count bluffing universities that they have to hand over IP addresses as circumvention - it's Social Engineering, and it's as old as hacking itself).

They're not cops. Why do they have cop powers? I know for a fact if I do *any* of the crap they're doing, I'll go to jail.

Why not them?

At This Point In Oregon

[Nom du Keyboard]

At this point in Oregon the RIAA has no case because:

An IP address and a timestamp does not identify a particular computer. It might, at most, point to a cable modem, dsl modem, wireless router, none of which store or share files.

Adding a screen snapshot of a list of files of unknown content doesn't improve in that identification.

An IP address and a timestamp and a screen shot of file names doesn't identify an individual.

None of the above shows that any copyrighted work was ever distributed illegally.

Finding copyrighted music files on a hard drive is no evidence of illegal downloading.

To recap, the RIAA has:

No way to identify an individual.
No way to identify a computer or tie it to an individual.
No proof, or ability to get proof, of illegal downloading.
No proof, or ability to get proof without having tapped internet connections of any distribution to anyone but their own investigators, who frankly don't count legally.
No case at all to justify their invasion of a user's privacy, and the extortion attempts to follow as they insist through their lying mouths, "We have already secured the information necessary to win against you in court!

The RIAA also has yet to prove in nearly all these cases that they are the current copyright holders of the very songs they seek to sue over, often presenting original copyright certificates in the names of companies that are no longer even in existence, and individual artists who have since died.

Yes, the courts need to put a direct and firm end to all this nonsense.

(Note to file sharers: Don't use your own personal, or nick, name as your KaZaA handle.)

Re:This sounds hilarious eh I mean fun

[jimlintott]

Even funnier to consider in 1983, Frank Zappa said the traditional model was dead. Except for some technical details he almost precisely predicted the next model.

http://www.brendastardom.com/arch.asp?ArchID=719 [brendastardom.com]

They never did really listen to him.