NewYorkCountryLawyer writes "The 5-year-old case of UMG Recordings v. Lindor (which we've discussed all those years) has come to a close in Brooklyn, without ever reaching the deposition and document production of MediaSentry. The District Judge denied the RIAA's motions for discovery sanctions but granted the RIAA's motion for voluntary dismissal without prejudice and without attorneys fees, adopting the report and recommendation of the Magistrate Judge."

An anonymous reader writes "A Dartmouth professor's analysis of MediaSentry problems helped win a New Hampshire woman's RIAA music-download lawsuit. 'Since all of Plaintiffs' claims are based on the assumption that MediaSentry's software and computer configuration are trustworthy and free of errors, and this log clearly represents a failure of the MediaSentry software to perform the operation it claims to describe, the reliability and validity of the MediaSentry method should be questioned,' wrote professor Sergey Bratus in his report, dated May 30. 'In my opinion, these materials leave critical aspects of MediaSentry's evidence collection process undocumented. In my opinion, they express unwarranted assumptions regarding both software and network technologies involved, and attempt to create an illusion of evidence-supported certainty where it does not exist.'" The full report (PDF) is available online. It's worth noting that this victory was not the outcome of a court ruling; rather, a settlement was reached that did not require the defendant, Mavis Roy, to pay anything to the RIAA.

NewYorkCountryLawyer writes "Well the price went up from $9250 per song file to $80,000 per song file, as the jury awarded the RIAA statutory damages of $1,920,000.00 for infringement of 24 MP3s, in Capitol Records v. Thomas-Rasset. In this trial, although the defendant had an expert witness of her own, she never called him to testify, and her attorneys never challenged the technical evidence offered by the RIAA's MediaSentry and Doug Jacobson. Also, neither the special verdict form nor the jury instructions spelled out what the elements of a 'distribution' are, or what needed to be established by the plaintiffs in order to recover statutory — as opposed to actual — damages. No doubt there will now have to be a third trial, and no doubt the unreasonableness of the verdict will lend support to those arguing that the RIAA's statutory damages theory is unconstitutional." Update: 06/19 01:39 GMT by T : Lots more detail at Ars Technica, too.

NewYorkCountryLawyer writes "The RIAA's first trial verdict having been tossed out last year, the RIAA is coming back for a second round starting Monday. This time the trial will be in Minneapolis, rather than Duluth, and the defendant will have a team of pro bono lawyers on her side. But perhaps the most important new development is that this time, the 'technical' evidence garnered by MediaSentry and 'explained' by the RIAA's expert witness Doug Jacobson, will not get the free pass it got the first time around. In the 2007 trial in Capitol Records v. Thomas, no objection was made by defendant's lawyer to the MediaSentry/Doug Jacobson 'evidence' upon which the RIAA relied, and the evidence was admitted without objection. This time there will be no free ride, as defendant's tech-savvy lawyers have already filed a list of objections to the RIAA's proposed exhibits. Most notably, they attack the 'technical' materials submitted by MediaSentry and Dr. Doug Jacobson under Rule 702 of the Federal Rules of Evidence, which requires evidence based on 'scientific, technical, or other specialized knowledge' to be based on sufficient facts or data, to be the product of reliable principles and methods, and to be the result of those principles and methods having been applied reliably to the facts of the case. If the evidence fails to meet those standards, it is inadmissible. This judge has already shown acute awareness of these principles in deciding which subjects the defendant's expert could and could not address. This should be interesting."

NewYorkCountryLawyer writes "In Capitol Records v. Thomas-Rasset, the judge has denied the defendant's motion to suppress the MediaSentry evidence for illegality, holding that MediaSentry's conduct did not violate any of the three laws cited by the defendant. The judge also dismissed most of the RIAA's objections to testimony by the defendant's expert, Prof. Yongdae Kim, but did sustain some of them. In his 27-page decision (PDF), Judge Davis ruled that Prof. Kim could testify about the 'possible scenarios,' but could not opine as to what he thinks 'probably' occurred. The court also ruled that, 'given the evidence that there is no wireless router involved in this case, the Court excludes Kim's opinion that it is possible that someone could have spoofed or hijacked Defendant's Internet account through an unprotected wireless access point. Similarly, because Kim explicitly testified that this case does not involve any "black IP space," or any "temporarily unused" IP space ...., he is not permitted to opine at trial that hijacking of black IP space or temporary unused IP is a possible explanation in this case.' Dr. Kim was also precluded from testifying as to whether song files were conspicuously placed in a shared files folder or were wilfully offered for distribution. The judge also precluded him from testifying about Kazaa's functioning, but it was unclear to me what the judge was precluding him from saying, because the offered testimony seemed to relate only to the question of whether the Kazaa-reported IP address precluded the possibility of the device having been run behind a NAT device."

NewYorkCountryLawyer writes "In Capitol v. Thomas, the RIAA's Minnesota case scheduled for trial on June 15th, the defendant's new attorneys have filed a motion to suppress all of the evidence procured by MediaSentry, on the ground that it was obtained in violation of state and federal criminal statutes. The defendant's brief (PDF) accuses MediaSentry of violations of the Minnesota Private Detectives Act, the federal Pen Register and Trap and Trace Devices Act, and the federal Electronic Communications Privacy Act of 1986. The motion is scheduled to be argued on June 10th."

newtley writes "Disgraced and discredited 'private investigator' MediaSentry, fired by former patrons Vivendi Universal, EMI, Warner Music, and Sony Music and their RIAA, may be dead and buried in America, but it's alive and well, resurfacing in Australia where it's once again plying its trade, probably under new management. 'I currently (but not for long) reside at a student dormitory... in Brisbane, Australia,' says a p2pnet reader, continuing: 'Yesterday I got called into the Managers office because the network manager had been contacted by MediaSentry and emailed one of the generic copyright infringement emails as a result of me downloading Angels and Demons. Now instead of studying for my exams and working on my final assignments I must take time to find a place to live before the 29th of May (2009).'"

NewYorkCountryLawyer writes "In Andersen v. Atlantic Recording, the Oregon class action brought by Tanya Anderson against the RIAA, MediaSentry, and others, the plaintiff's motion for class action certification has been sealed by the Court. Also, the Court conducted an 'in camera' conference with the defendants' attorneys — meaning the Judge met with the defendants' attorneys alone — in connection with a discovery motion, and the record of that conference has been sealed as well. The RIAA has made a motion to dismiss the class action; that has not been sealed. In case you're wondering what's going on here, so am I."

NewYorkCountryLawyer writes "The procedures used by the RIAA the past 5 years in suing 'John Does' without their knowing about it have never been subjected to scrutiny by an appeals court, since most of the 'John Does' never learn about the 'ex parte' proceeding until it's too late to do anything about it. That is about to change. In Arista Records v. Does 1-16, a case targeting students at the Albany Campus of the State University of New York, the US Court of Appeals for the Second Circuit has decided to put things on hold while it takes a careful look at what transpired in the lower court. The way it came to this is that a few 'John Does' filed a broad-based challenge to a number of the RIAA's procedures, citing the defendant's constitutional rights, the insufficiency of the complaint, the lack of personal jurisdiction over the defendants, improper misjoinder of the defendants, and the RIAA's illegal procurement of its 'evidence' through the use of an unlicensed investigator, MediaSentry. The lower court judges gave short shrift to 'John Doe #3,' but he promptly filed an appeal, and asked for a stay of the subpoena and lower court proceedings during the pendency of the appeal. The RIAA opposed the motion, arguing that John Doe's appeal had no chance of success. The Appeals Court disagreed and granted the motion, freezing the subpoena and putting the entire case on hold until the appeal is finally determined. As one commentator said, 'this news has been a long time coming, but is welcomed.'"

newtley writes "SafeNet paid $20 million for MediaSentry in 2005, but has just sold it to rival MediaDefender for a paltry $136,000, with a promise of more later. MediaSentry's new owner says the combination will allow it to 'dramatically expand its effectiveness.' Is it time for an official government inquiry into MediaSentry and the RIAA? A Chicago student said she was planning on killing herself because the RIAA promised her she'd land in court unless she paid almost $10,000 to 'settle' an alleged copyright infringement. She 'couldn't sleep, couldn't study, couldn't live a normal life because of the worry.' The RIAA 'evidence' came from MediaSentry, accused of operating illegally."

NewYorkCountryLawyer writes "Jammie Thomas, the defendant in Duluth, Minnesota, RIAA case Capitol Records v. Thomas, has served her expert witness's report. The 30-page document (PDF), prepared by Prof. Yongdae Kim of the Computer Science Department of the University of Minnesota, attacks the reports and testimony of Prof. Doug Jacobson, the RIAA's expert, and the work of the RIAA's investigator, Safenet (formerly known as MediaSentry). Among other things, Dr. Kim termed MediaSentry's methods 'highly suspect,' debunked Dr. Jacobson's 'the internet is like a post office' analogy, explained in detail how FastTrack works, explored a sampling of the types of attacks to which the defendant's computer may have been subjected, accused Jacobson of making 'numerous misstatements,' and concluded that 'there is not one but numerous possible explanations for the evidence presented during this trial. Throughout the report I demonstrate possibilities not considered by the plaintiff's expert witness in his evaluation of the evidence...' Additionally, he concluded, 'MediaSentry has a strong record of mistakes when claiming that particular IP addresses were the origins of copyright infringement. Their lack of transparency, lack of external review, and evidence of inadequate error checking procedures [put] into question the authenticity and validity of the log files and screenshots they produced.'"

NewYorkCountryLawyer writes "It's been a rough week for the RIAA as massive layoffs are about to cost many employees their job. On top of that, the anti-piracy outfit is being sued in North Carolina for abusing the legal system in its war on piracy, particularly for civil conspiracy, deceptive trade practices, trespassing and computer fraud in SONY BMG Music Entertainment v. Moursy. Named along with the record companies as defendants on the counterclaims are Safenet (formerly known as MediaSentry) and the RIAA. This case first started out as 'LaFace Records v. Does 1-38' until the court required the RIAA to break it up into 38 separate cases, at which point it morphed into 'SONY BMG Music Entertainment v. Doe.' Only after the RIAA finally got its 'expedited' discovery did it become SONY v. Moursy. And from the looks of things, it has a long, long way to go. The RIAA hasn't even filed its answer to the counterclaims yet, but is making a motion to dismiss them on the grounds of legal insufficiency. Sound like a good investment of record company resources, anyone?"

newtley writes "The RIAA's claim that it'll stop suing people may have serious consequences... for the RIAA. When it dropped its attack on seven University of Michigan students, Recording Industry vs. The People wondered if the move was linked to three investigations, with MediaSentry as the target, before Michigan's Department of Labor and Economic Growth. Now, 'LSA sophomore Erin Breisacher said she stopped downloading music illegally after hearing about the possibility of receiving a lawsuit, but now that the RIAA has stopped pursuing lawsuits she "might start downloading again,"' says the Michigan Daily, going on to quote LSA senior Chad Nihranz as saying, 'I figure, if there aren't as many lawsuits they will come out with more software to allow students to download more.'" What about some of the other potential tactics we've discussed recently, such as the UK's proposed £20 per year film and music tax or the $5 monthly fee suggested in the US? Is there anything the RIAA can do to reduce illegal file-sharing without generating massive amounts of bad publicity?

newtley writes "Two days ago we discussed the earlier p2pnet report that the RIAA had fired MediaSentry (now called SafeNet). Now the Wall Street Journal is confirming this report. MediaSentry has been 'invading the privacy of people,' the WSJ quotes Ray Beckerman; 'They've been doing very sloppy work.' Beckerman cites MediaSentry's practice of 'looking for available songs in people's filesharing folders, uploading them, and using those uploads in court as evidence of copyright violations.' MediaSentry 'couldn't prove defendants had shared their files with anyone other than MediaSentry investigators.' The WSJ notes, 'In place of MediaSentry, the RIAA says it will use Copenhagen-based DtecNet Software ApS. The music industry had worked with DtecNet previously both in the US and overseas, and liked its technology...' "

NewYorkCountryLawyer writes "According to a tantalizing 'unconfirmed' report, it appears that the RIAA has jettisoned MediaSentry (now known as SafeNet) as its 'investigator.' MediaSentry has come under heat in a number of different states for the fact that it was 'investigating' without an investigator's license and invading people's privacy. Earlier this year it was found to have made diametrically conflicting written statements to two different tribunals within 30 days of each other, in one denying that it was an 'expert witness,' in another claiming that it was an 'expert witness.' If the report is accurate, the termination comes at an interesting time, since MediaSentry's investigator is the plaintiffs' only fact witness to prove copyright infringement in Capitol Records v. Thomas, which is now headed for a retrial on March 9th. If he does take the stand, the reasons for his company's termination will be fair game for cross examination. One also has to wonder if it's in any way connected to the puzzling enigma of the New York Attorney General's alleged involvement in the RIAA's recent Wall Street Journal announcement that it would be reducing its p2p file sharing cases to a trickle."

NewYorkCountryLawyer writes "The entire transcript of the RIAA's 'perfect storm,' its first and only trial, which resulted in a $222,000 verdict in a case involving 24 MP3's having a retail value of $23.76, is now available online. After over a year of trying, we have finally obtained the transcript of the Duluth, Minnesota, jury trial which took place October 2, 2007, to October 4, 2007, in Capitol Records v. Thomas. Its 643 pages represent a treasure trove for (a) lawyers representing defendants in other RIAA cases, (b) technologists anxious to see how a MediaSentry investigator and the RIAA's expert witness combined to convince the jurors that the RIAA had proved its case, and (c) anybody interested in finding out about such things as the early-morning October 4th argument in which the RIAA lawyer convinced the judge to make the mistake which forced him to eventually vacate the jury's verdict, and the testimony of SONY BMG's Jennifer Pariser in which she 'misspoke' according to the RIAA's Cary Sherman when she testified under oath that making a copy from one's CD to one's computer is 'stealing.' The transcript was a gift from the 'Joel Fights Back Against RIAA' team defending SONY BMG Music Entertainment v. Tenenbaum, in Boston, Massachusetts. I have the transcript in 3 segments: October 2nd (278 pages(PDF), October 3rd (263 pages)(PDF), and October 4th (100 pages)(PDF)."

NewYorkCountryLawyer writes "The RIAA's 'Prince of Darkness,' Washington DC lawyer Matthew Jan Oppenheim of The Oppenheim Group, who controls and supervises all of the RIAA litigations against ordinary folks, has requested permission to intervene in the 'probable cause' hearing scheduled next week in Raleigh, North Carolina, against MediaSentry. The hearing was convened by North Carolina's Private Protective Services Board, after complaints were filed by a law firm representing a number of North Carolina State University students who had been targeted by the RIAA based on the unlicensed 'investigation' conducted by SafeNet (the new name for MediaSentry). I guess the RIAA is worried. They should be."

NewYorkCountryLawyer writes "In Arista v. Does 1-17, the RIAA's case targeting students at the University of Oregon, the Oregon Attorney General's motion to quash the RIAA's subpoena — pending for about a year — has reached a perplexing conclusion. The Court agreed with the University that the subpoena, as worded, imposed an undue burden on the University by requiring it to produce 'sufficient information to identify alleged infringers,' which would have required the University to 'conduct an investigation,' but then allowed the RIAA to subpoena the identities of 'persons associated by dorm room occupancy or username with the 17 IP addresses listed' even though those people may be completely innocent. In his 8-page decision (PDF), the Judge also 'presumed' the RIAA lawyers' misrepresentations were an 'honest mistake,' made no reference at all to the fact, pointed out by the Attorney General, that the RIAA investigators (Safenet, formerly MediaSentry) were not licensed, rejected all of the AG's privacy arguments under both state and federal law, and rejected the AG's request for discovery into the RIAA's investigative tactics."

NewYorkCountryLawyer writes "An anonymous University of Michigan student, targeted by the RIAA as a 'John Doe,' is asking for the RIAA's investigator, SafeNet (formerly MediaSentry), to be prosecuted criminally for a pattern of felonies in Michigan. Known to Michigan's Department of Labor and Economic Growth — the agency regulating private investigators in that state — only as 'Case Number 162983070,' the student has pointed out that the law has been clear in Michigan for years that computer forensics activities of the type practiced by Safenet require an investigator's license. This follows the submissions by other 'John Does' establishing that SafeNet's changing and inconsistent excuses fail to justify its conduct, and that Michigan's legislature and governor have backed the agency's position that an investigator's license was required." SafeNet/MediaSentry defended their actions by claiming their company simply "records public information available to millions of users. If private investigator licenses were required to do what MediaSentry does, every user on Limewire and other illegal p2p networks would be required to have a license. Indeed, every search engine and Internet user would be required to have a private investigator license if MediaSentry needs one."

NewYorkCountryLawyer writes "You may recall that MediaSentry, the RIAA's unlicensed investigator, has been the subject of an investigation by Michigan's Department of Labor and Economic Growth for its conduct of investigations without an investigator's license, an investigation in which it has made contradictory and false statements to the government's investigators. Well apparently this didn't deter MediaSentry from simply continuing its practice of conducting 'investigations' without a license. In Michigan, no less. We have learned from court papers (PDF) filed in Michigan that the practice continued for months after the DLEG had begun questioning the practice."