RIAA's SafeNet Caught In a Lie 242
NewYorkCountryLawyer writes "For the past 2 years, the RIAA and its attack dog SafeNet (formerly known as MediaSentry) have been trying to avoid disclosure in UMG v. Lindor by telling the judge that MediaSentry is NOT an expert, that it does not use any technical expertise to get the 'evidence', and that it does only 'what any other Kazaa user does'. We have just discovered that in administrative proceedings in Michigan, attacking it for engaging in the business of investigation without a license, MediaSentry has taken the exact opposite position, comparing itself to chemical engineers, surveyors, physicians, geologists, and other expert witnesses who rely on their technical expertise. Today we went public with some of the contradictions. Now let's hope Michigan's Department of Labor and Economic Growth finds out about it."
Really? (Score:5, Funny)
Bending the truth may be light (Score:5, Insightful)
Re:Bending the truth may be light (Score:5, Insightful)
Re: (Score:3, Insightful)
If we're going to strive for precision in our wording: it's perfectly reasonable to have your cake and eat it too - where the trouble starts is if you try to eat your cake and have it too.
Re:Bending the truth may be light (Score:5, Funny)
You can eat your cake and still have it, it just takes a little patience. Although the cake will look different, and it'll smell bad.
Re:Bending the truth may be light (Score:5, Funny)
Hey! Here on Slashdot, every day is Be Pedantic Day!
Re:Bending the truth may be light (Score:5, Funny)
They want to have their cake and eat mine, too.
Re:Bending the truth may be light (Score:5, Insightful)
It might not exactly be lying, but it's the kind of thing that would really piss a federal judge off!
Re:Bending the truth may be light (Score:5, Interesting)
Did you really mean this? (Score:5, Informative)
I rather suspect you mean that the defendant is not prosecuted for lying, as such. This is usually the case in much of Europe. Criminals who plead not guilty do not receive extra sentences for having lied as well as having committed the original crime.
In fact Finland is a member of the EU, its judicial system must meet European standards, and a judicial system which permitted plaintiffs to lie would fail the European Union human rights test.
Re:Bending the truth may be light (Score:5, Funny)
And we all know that the cake is a lie.
Re:Bending the truth may be light (Score:5, Funny)
Or at least "undead".
Re: (Score:3, Funny)
Re: (Score:3, Interesting)
Instead of settling lawsuits we should have high profile members of the RIAA assassinated.
It would be the more cost effective solution in the long run.
Re: (Score:3, Insightful)
Yes, it IS lying (Score:5, Insightful)
Re:Yes, it IS lying (Score:5, Insightful)
It's obvious which one is the lie. They certainly are NOT security experts, as was amply documented in their leaked email last year! Their amateur hour antics were hilarious, and there was no evidence that security was taking place in that organization.
Of course this doesn't help the ongoing RIAA litigation. But it should slow down the idiots who think that SafeNet is doing them some good. Oh, wait, that's the RIAA, too. Damn.
Re:Yes, it IS lying (Score:4, Funny)
Re:Yes, it IS lying (Score:5, Funny)
Why do you want to pollute a perfectly good star? It's not as if we are in a binary system and thus have a "backup".
Re: (Score:2)
They have made two mutually exclusive statements. At least one of them is necessarily a lie.
Re: (Score:2, Insightful)
--
Only if they are made simultaneously. In this particular case almost certainly a lie, but not necessarily.
Re:Bending the truth may be light (Score:5, Interesting)
Ironically, the law expressly allows inconsistent pleadings, exemplified in the King's Bench "Case of the Kettle", in which it was held competent, in a case in which the Defendant was said to have borrowed a kettle and returned it with a crack, to plead:
1. That he never borrowed the kettle.
2. That the kettle was never cracked.
3. That the kettle was cracked when he borrowed it.
These are legal fictions, and legal fictions, as we know, are solemn things. :-> On a more serious note, I doubt the RIAA or SafeNet will be put to pillory for their inconsistency.
Re: (Score:3, Informative)
IANAL, but what the RIAA/SafeNet are arguing would appear (to me, a layman) to come under the umbrella of estoppel. But then again, so would the pleadings in the precedent (Greer v Kettle?) that you cite.
My understanding of estoppel is that it prevents (estops) a party from taking one position and then taking a contradictory one later on to disadvantage someone. (Maybe the time-line is important, and the difference between the situations? Maybe the earlier position must have been known, and thus create a
Re:Bending the truth may be light (Score:5, Informative)
Actually, a bit of googling reveals that the Kettle thing is called "pleading the alternative". It seems to often be allowed, but differs from what the RIAA/SafeNet are doing.
This article [bluestonelawfirm.com] discusses the distinction. In particular, paragraphs 2 and 3 provide a good summary:
"Judicial estoppel is an equitable doctrine that protects the integrity of the judicial process. Cummings v. Bahr, 295 N.J. Super. 374, 387 (App. Div. 1996). It "preclud[es] a party from asserting a position in a case that contradicts or is inconsistent with a position previously asserted by the party in the case or a related legal proceeding." Tamburelli Prop. Ass'n v. Borough of Cresskill, 308 N.J. Super. 326, 335 (App. Div. 1998) (citation omitted).
Judicial estoppel does not prevent litigants from pleading alternative positions; rather, it "is designed to prevent litigants from playing fast and loose with the courts." Newell v. Hudson, 376 N.J. Super. 29, 38 (App. Div. 2005) (citation omitted). "[A] party must successfully assert a position in order to be estopped from asserting a contrary position in future proceedings." Cummings, supra, 295 N.J. Super. at 386. Prior success does not necessarily mean that the party benefited from the position taken, but only that a court allowed them to maintain that position and relied on it to make a judicial determination. Id. at 387.
Re: (Score:3, Funny)
IANAL too
So do I.
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Re:Bending the truth may be light (Score:5, Funny)
No, it isn't lying.
It's just bending the truth all the way around.
Re:Bending the truth may be light (Score:5, Funny)
Re:Bending the truth may be light (Score:5, Funny)
THe Moebius strip of truth only has one side. This is more like the Klein bottle of truth: everything fits inside, all at the same time.
Re:Bending the truth may be light (Score:5, Insightful)
I congratulate you for making a nerdy joke even more nerdy. More importantly, one that's technically correct ... the best kind of correct.
Re:Bending the truth may be light (Score:5, Funny)
But, like the RIAA's cases, it doesn't hold water.
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Re:Bending the truth may be light (Score:4, Informative)
Re:Bending the truth may be light (Score:5, Funny)
They weren't lying, they were just saying a lot of things they wish were true or thought were true. Like many bloggers do as well. :)
Re:Bending the truth may be light (Score:4, Funny)
Sounds to me more like lying, what with the two stances being exact opposites.
Don't be silly, when the lawyers are done fighting we'll find out it's all a big misunderstanding. Why, I'm sure a few years from now we'll all laugh about it.
Re: (Score:2, Funny)
Funny, you don't SOUND very shocked.
Wait... sarcasm on slashdot about the RIAA?!?
Re: (Score:3, Funny)
Next up the Pope's religion together with some information about bears and trees
Is there such a thing... (Score:5, Interesting)
as perjury for corporations, and would it even apply to civil proceedings. It certainly seems willful in this case.
Oh, well, at least it's another potential arrow in the quiver of the defense for those targeted by the RIAA.
Re: (Score:3, Insightful)
Unless it is in reference to oral sex... then it's taken VERY seriously.
What a mixed day... (Score:3, Insightful)
Re:What a mixed day... (Score:4, Funny)
Laugh until you cry?
the one good thing about the US government is that it moves slowly enough that everythng that is caught in outright lies eventually gets ground under. It just takes a very painful decade to do so.
There are WMDs in Iraq... somewhere... (Score:5, Insightful)
RIAA is just following the example set by the white house... which is:
1. Say whatever you have to say, in order to do whatever you want to do. ... that the commies/soviets/canadians are actually manipulating things behind the scenes
2.Do it
3. Claim that it isn't your fault that your explanation isn't entirely true
4. force your new laws which were based on false assumptions on everything. Including those who you technically can't force your restrictions on.
5. Call everyone who doesn't comply a pirate / ninja / terrorist.
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As the saying goes, "The wheels of Justice grind slowly, but they grind exceeding fine"....
Re:What a mixed day... (Score:5, Informative)
"Though the mills of God grind slowly, yet they grind exceeding small [theotherpages.org]".
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All of the invisible hands of all the markets are conspiring to keep prices high. Either that or the Chinese kept their economy in the dark ages until they sensed that we were most vulnerable...then BAM! they start growing and use up all our oil. Wait till they see what happens when our plan to let the dollar free-fall comes to fruition...
Re: (Score:3, Interesting)
There was a news item [uncyclopedia.org] about that a couple of days ago. I <:quote:>
As a Michigan Resident... (Score:3, Interesting)
...I may just have to make it my civic duty to ensure that the news gets spread around a bit.
Re: (Score:2)
...I may just have to make it my civic duty to ensure that the news gets spread around a bit.
Please do.
Falcon
I've seen this happen before (Score:5, Interesting)
Re:I've seen this happen before (Score:5, Insightful)
Years ago I was a juror on a civil trial. At one point, the defence counsel had one of the attorneys for the plaintiffs on the stand. He read off one of the claims that attorney had made in the case and asked him if he'd ever argued anything contrary to it. "No, of course not." Then, the defence attorney read into the record part of a brief from another case where the witness had argued the exact opposite of what he now claimed. I won't say it's common, but it's not exactly unheard of.
The RIAA lying is quite routine in these cases. These people will say anything at all if they think it will help their case. Of course it's starting to catch up to them. In Maine, e.g., a Magistrate Judge suggested they be sanctioned for some lies they told [blogspot.com], and a judge in Minnesota has recently learned that he was misled [blogspot.com] by the RIAA liars -- er, lawyers. And I have a hunch the contradictory lies noted in the posted articles will come back to haunt them as well.
Re:I've seen this happen before (Score:5, Interesting)
hey NYCL,
Re: your second link /. crowd informed of developments, you have to pick & choose what you think is worth submitting, but if you do, can I pre-flag the outcome of this development for submission?
Oral argument was scheduled for 1st July, a week ago. Any news on the outcome? (Or do we have to wait a while?)
I don't know if, in your dilligent efforts to keep the
That the whole 'making available' theory, after having been accepted, could be subsequently chucked (presumably invalidating the entire outcome of the case), looks like it might be a significant nail in the coffin of the RIAA's war on the public.
Thanks
-AC
Re:I've seen this happen before (Score:5, Informative)
hey NYCL, Re: your second link Oral argument was scheduled for 1st July, a week ago. Any news on the outcome? (Or do we have to wait a while?)
If you're referring to Capitol v. Thomas, oral argument on the "making available" issue was rescheduled for August 4th [blogspot.com], 10 AM, Duluth, Minnesota, federal courthouse, Courtroom 1.
I don't know if, in your dilligent efforts to keep the /. crowd informed of developments, you have to pick & choose what you think is worth submitting,
I do pick and choose what I submit to Slashdot, and the Slashdot editors only select some of my submissions. The best way to stay on top of everything is to follow my blog.
but if you do, can I pre-flag the outcome of this development for submission? That the whole 'making available' theory, after having been accepted, could be subsequently chucked (presumably invalidating the entire outcome of the case), looks like it might be a significant nail in the coffin of the RIAA's war on the public.
Absolutely that is one of the most important things going on, and I will definitely submit it to Slashdot when I learn of it. However, that will be covered by the mainstream press as well, and Ars Technica and Wired and everyone.... So if I happen to be in court or something the day the news breaks, I might well get scooped by people who are professional journalists. Me, I'm just a country lawyer.
Re: (Score:3, Insightful)
Me, I'm just a country lawyer.
You and Sam Ervin. (grin)
Re:I've seen this happen before (Score:5, Interesting)
In theory, there's a distinct upper bound on the number of cases they can bring without a radical change in tactics. There are only so many judges, and it seems like a large percentage (if not a majority) are unhappy/made aware about their tricks. They will be on the lookout the next time they have a case brought to them.
Or is the churn in judges enough that they can always take it to a new, fresh judge?
Even in that case, you have to figure that their acts get around. If it's on Slashdot, you can be sure the judges are talking to each other or something.
Re:I've seen this happen before (Score:5, Interesting)
In theory, there's a distinct upper bound on the number of cases they can bring without a radical change in tactics. There are only so many judges, and it seems like a large percentage (if not a majority) are unhappy/made aware about their tricks. They will be on the lookout the next time they have a case brought to them. Or is the churn in judges enough that they can always take it to a new, fresh judge? Even in that case, you have to figure that their acts get around. If it's on Slashdot, you can be sure the judges are talking to each other or something.
I think the first wave is over. That was where the federal court system was caught off guard by the RIAA's litigation campaign. Big firms, fancy papers, high-faluting words, techno babble... it sounded and seemed legitimate, and no one was fighting back.
Now we're in phase 2. Some of the judges are starting to catch on that they've been taken for a ride.
Phase 3 will begin when most judges have become aware of the RIAA's lies. Phase 3 won't be pretty for the RIAA.
Re:I've seen this happen before (Score:4, Funny)
Is this like the 3rd phase of matter -- all gas?
Re:I've seen this happen before (Score:5, Insightful)
No, no. Phase 3 will be when the RIAA succeed in bribing Congress into making copyright infringement a federal crime, and thus get to shuck off the whole lawyer expense off to the Department of Justice, who will immediately go whining to Congress to get more money to hire more agents in order to detect and prosecute more cases. And so that way our taxes will pay to defend the RIAA companies from any possible loss due to infringement, while they get to keep any profit.
I seriously hope I am wrong. But I fear I may be right.
Re: (Score:3, Funny)
Townsperson: But then who will operate the machinery and keep the pleasure dome running?
Dante: Phase 4: an army of robot workers to replace the slaves.
Walt and Steve-Dave: What if the robots united and rebelled against Leonardo?
Randal: Phase 5: an army of highly intelligent apes move in and quell the robot insurrection.
Townsperson: What if the apes are pacifists?
Time passes...
Dante: Phase 24:
Re:I've seen this happen before (Score:5, Interesting)
Am I missing something important? Why not contact every Judge who has a lawsuit from the RIAA on their docket and just tell them? Why not just mail the Michigan Department of Labor and Economic Growth and tell them too?
Surely you lawyers have a fancy sounding name for such a document... and we don't just have to "hope the Judges find out"
Re: (Score:3, Informative)
I believe the term you are looking for is Amicus Brief [wikipedia.org].
Re: (Score:3, Insightful)
Phase 3 will begin when most judges have become aware of the RIAA's lies. Phase 3 won't be pretty for the RIAA.
Presumably phase 4 is when they get a new law passed which sets up a federal bureau of copyright investigation?
Re: (Score:2)
Re:I've seen this happen before (Score:5, Funny)
I wonder if the statements from Michigan can be sent to Lindor's legal team?
I am "Lindor's legal team".
can't resist . . . (Score:5, Funny)
Re: (Score:2)
Re:I've seen this happen before (Score:5, Insightful)
In Maine we don't really take kindly to that sort of crap. Sometimes I love Maine's judges. Anyhow, I write to ask you (specifically) what, if any, results do you think this will have in the scope of things? IANAL but it seems to me that this has seemingly large potential for future problems with the RIAA suits when we're looking at it with the slashdot perspective but, on the other hand, it seems more likely that this won't actually have a great deal of impact at all.
As a veteran of 34 years in the field of litigation I can tell you 2 things:
1. It is not foreseeable which lie will be the one to bring them down.
2. It is foreseeable that their lying will bring them down.
Re:I've seen this happen before (Score:5, Insightful)
Were it even possible and my attorney did as you described, I'd come after him with a malpractice suit Really Rather Quickly. There's that whole other minor concept of "Attorney Client Privilege". What in the name of blue fuck was the attorney doing answering anything about the case he was defending?
Re: (Score:3, Interesting)
Who would object? One of the other attorneys acting for the plaintiff. That's why I said, "...one of the attorneys..." And, he was only asked to testify about this one point, not the facts of the case itself. I might add that it was a rather weird case. It started out as a suit and countersuit. Then, the main suit was settled, leaving only the countersuit to be litigated, so that the defence was suing the plaintiffs but not (by now) the other way around.
Re: (Score:3, Interesting)
In this case, the argument was one of the key claims of the suit. Showing that one of the plaintiff's attorneys had argued the exact opposite in another case made it look like even he didn't believe his own arguments. I might add that AFAICT nobody on the jury agreed with that argument anyway, but shooting it down that way was a nice touch.
Contradictions mean nothing (Score:2, Insightful)
The Bible has many contradictions. There are two *different* Creation stories, right off the bat!
But you know what? People still consider it the "infallible Word of God" and believe that there are no mistakes in the Bible. They base their whole religious view based on this faith. They try to live their lives according to the book's teachings.
You think your little contradiction means anything?
Re: (Score:2, Flamebait)
Belief in Imaginary Property isn't religion?
Re: (Score:3, Insightful)
Re: (Score:3, Funny)
If you're very quiet, you might be able to hear the WOOSH leaving earth's atmosphere
Woo hoo! Can you say (Score:2)
.. "estoppel?"
I knew you could.
Dear NewYorkCountryLawyer: (Score:5, Funny)
Dear RIAA:
Haha. Self-pwnt.
Re:Dear NewYorkCountryLawyer: (Score:5, Funny)
Dear NewYorkCountryLawyer: You rock. Dear RIAA: Haha. Self-pwnt.
Why thank you, The Master.
NYCL (Score:2)
NYCL will undoubtedly e-mail someone's lawyer about this. It'll be hilarious to watch the results in court.
NYCL's Web Site Down. (Score:5, Funny)
Isn't it obvious? (Score:5, Funny)
They gained experience from their previous ordeal, and can now claim to be "experts".
Ding? (Score:5, Funny)
At a later trial when they once again need to be laymen, not experts, I assume they will claim to have respecced since this trial.
One of the worst companies to work for.... (Score:5, Interesting)
I worked for SafeNet in "quality assurance" when I was in high school (I'm 23 now) to test the quality of their hardware security solutions. And let me tell you, they are one of the worst companies on earth to work for. They treat their employees like crap, as they started laying off some of their best employees and brought in foreign help on H1B visas.
They really lost their way when they got out of the hardware based security business and became the cronies for the RIAA/MPAA. Contradiction is not a new thing to SafeNet. They claimed (and still claim) to be supporting the local economy in Harford County, Maryland, where their Corp HQ is, when all they were doing was outsourcing jobs and bringing in H1B workers to cut costs.
Terrible company, and I'm not surprised that they finally got caught in the web of their pathological lies.
Let them know about it! (Score:5, Insightful)
Re:Let them know about it! (Score:5, Informative)
In fact, the RIAA and MediaSentry have consistently taken the position in UMG v. Lindor [blogspot.com] for 2 years that MediaSentry is NOT an expert and did NOT use technical expertise, but did "what any Kazaa user can do". They did not make this statement once or twice, but probably in the neighborhood of a dozen times. I culled just 3 of them.
Within weeks of making that statement in Lindor, Mr. Mullaney had made the exact opposite statement in the Michigan proceedings, saying MediaSentry was a technical expert which utilized its technical expertise in obtaining the evidence, just like a physician, a surveyor, a geologist, or a chemical engineer.... (all of which are clearly expert witnesses who would be subject to expert witness disclosure in federal litigations).
Any person who actually read (a) Mr. Mullaney's letter in the Michigan case, and (b) the three documents in the Lindor case, would have to agree with that statement.
Apparently Mr. Otter has some kind of grudge against me, and -- like his soulmates in the RIAA -- is willing to fabricate facts in order to 'make his case'. Mr. Otter please read the documents, and then please apologize.
Economy (Score:3, Funny)
Michigan has an economy? I thought they ran everybody off?
Re:Economy (Score:5, Funny)
Michigan has an economy? I thought they ran everybody off?
They didn't run, they drove off in impressively made foreign cars.
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Michigan passed legislation giving pharmaceutical companies immunity from product liability actions, and then the largest pharma company in the state left.
Funny . . . (Score:4, Informative)
dude your rock (Score:5, Funny)
NewYorkCountryLawyer: the anti-Jack Thompson
Re: (Score:3)
*woosh*
Is this really surprising? (Score:5, Funny)
I thought lawyers made contradictory arguments all the time.
Here's a joke/story I heard years ago. This lawyer is in a courtroom, defending a client. The plaintiff claims the defendant borrowed a new pot and returned it in broken condition. The lawyer makes his opening statement: "There are three facts that prove my client is innocent. First, he never borrowed that pot. Second, it was already broken when he borrowed it. Third, when he returned it, it was in perfect condition."
steveha
Pleading the alternative. (Score:5, Interesting)
"... First, he never borrowed that pot. Second, it was already broken when he borrowed it. Third, when he returned it, it was in perfect condition."
That's called "pleading the alternative" and is totally legit - at least in criminal proceedings.
- The prosecution has to prove their case beyond a reasonable doubt.
- The defense only has to poke holes, raising reasonable doubt.
- So if the prosecution fails to disprove even one counter-theory it's a win for the defense.
Not sure how that goes over in civil proceedings, where the sides are on an even footing and the standard is "preponderance of evidence" rather than "beyond a reasonable doubt". NYCL, can you tell us?
Is it transferable information? (Score:2)
Is this admissible in the new case where they claim they are stupid or does it only stay with the case that the 'expert defense' was used?
Re:Is it transferable information? (Score:4, Informative)
Is this admissible in the new case where they claim they are stupid or does it only stay with the case that the 'expert defense' was used?
Yes it's admissible.
AFAIK, yes. (Score:5, Interesting)
A court is definitely empowered to take "judicial notice" of a litigant's public statements, and can certainly take judicial notice of documents filed by a litigant in other court cases, as those are public records.
IIRC, statements filed in court pleadings are made under oath, subject to penalties for perjury. Don't get too excited about that aspect, actual prosecution is rare; however, getting caught telling contradictory stories to two different courts WILL have Bad Consequences.
Judges purely hate to be gamed or lied to by litigants, and they tend to be very unsympathetic to folks who get caught trying it. It tends to destroy all prospect of either winning or coming out with a whole skin...
Caught in a lie?!! (Score:4, Funny)
Why they oughta be horsewhipped...I mean, elected to congress.
Re: (Score:2)
Re: (Score:2)
No it's not. I'd say "you must be new here," but your UID is lower than mine!
Re:A PI license? (Score:5, Interesting)
MediaSentry isn't licensed to perform PI work in, for example, Oregon. This bit them in the ass in a relatively well-known case. Ask NYCL for details -- he covered it on slashdot.
You think the Oregon Attorney General hurt their feelings [blogspot.com]?
Re:A PI license? (Score:5, Insightful)
Re: (Score:3, Informative)
Expert witnesses are used to interpret hard to understand information. Domain specific information. If your jury can't understand the evidence you find, then it's not worth anything to either side. A expert witness has to have something to interpret for the jury. So if you find something as a professional security analysis, there is no problem using it as evidence, but most likely without an expert witness to interpret it they won't know what it means. Find all the evidence you want, just mak