What, MediaSentry Worry?
by Rich Fiscus on August 25th, 2008
If you were to make a movie about the RIAA’s campaign of lawsuits against P2P file sharers it could easily be mistaken for something by Monty Python, the Marx Brothers, or perhaps Mel Brooks. It starts with a straight forward premise. Record label executives get together to decide on a course of action to address falling profits from CD sales. Then it takes a left turn into the absurd as a label representative suggests that if their former customers are no longer inclined to part with their money for CDs, they’ll simply sue them claiming millions in lost profits from piracy. After all, what other reason could there possibly be for spending less money on a tired and out dated product?
After much deliberation behind closed doors a plan is then hatched. Many legal problems, from obtaining confidential information from ISPs to proving actual damages are discussed. Given the extensive legal barriers to gathering evidence legitimately they eventually come to the realization that they actually have no chance of winning.
But wait! One enterprising lackey toiling in obscurity in a legal department has a plan. Instead of relying on the law as written, they’ll simply claim the law supports their plan and use a combination of repetition and obtuse technical and legal arguments to make it appear that the law is on their side. After all, the most important thing isn’t the truth of their case. As anyone who watches Stephen Colbert can tell you it’s all about how true it sounds.
This strategy works for quite a while; perhaps even longer than they expected. But now we’re in another phase of their master plan. In any good farce there comes a time when someone catches on to the silly misdirection and puts it to a test of reason. At this point our antagonist has two choices. For a whle they choose the obvious route of loudly repeating the same arguments. After all, if you repeat your flawed argument loudly enough it looks even more like the truth.
Unfortunately that eventually fails. One by one, as they’re tested in court, their arguments get shot down by judges who take the time to consider the merits of each one instead of buying into the rhetoric advanced by lawyers who are little more than PR mouth pieces for the labels. Now they face a new quandry. What can they do to stem the tide of losses?
This brings us up to right now, and it’s where their strategy goes from psychotically brilliant to completely baffling. Their current dilemma has to do with MediaSentry, the firm that gathers evidence against alleged file sharers so RIAA lawyers can sue them. MediaSentry is under investigation in multiple jurisdictions for operating as private investigators without a license.
In Michigan alone, not only are they being investigated by the state agency responsible for issuing Private Investigator Licenses, they’re also the subject of a complaint by a University they’re targeting in their witch hunt for file sharers.
You might expect them to have another pile of vaguely similar case law to cite. This is how they’ve arrived at previous contortions of the law such as the infamous “making available” as copyright infringement argument. In fact they’ve even used some of this twisted logic in the past to respond to these accusations. In reality though, they’re not making any arguments in court, but instead continue to file lawsuits based on evidence gathered by MediaSentry.
Perhaps they figure they don’t have to worry until actual sanctions are imposed or maybe they’re trying to get as many cases in as possible before being force to stop. Or just maybe they still figure they’re 50 feet tall and bullet proof.
Make no mistake about it. Their behavior may sound like wacky antics when viewed from a distance, but it’s no laughing matter for the people who have settled for thousands of dollars rather than face the possibility of losing a lot more - even if they believe they’ve done nothing wrong. Their comedy of legal errors can’t come to a swift enough conclusion for the people who are already faced with financial hardship to avoid financial ruin.
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One Response to “What, MediaSentry Worry?”
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Ok, this is one of those cases where siding with what appears to be the bad guy really sucks. But here goes anyway. I’m no fan of the RIAA and their tactics. If they were honest brokers with the artists, I’d feel much better about what they are doing. But this is not about sharing music and paying (or not paying) proper royalties; this is about having a PI license to do a forensic collection of evidence.
So my premise is that these laws that require a PI license before doing any forensic analysis are a bunch of crap spouted from a trade association that wants to protect a dying industry.
While this case may have some merit, the same sort of law in Texas is being used to shut down otherwise law-abiding computer service technicians who are trying to solve problems for customers. Yep, in Texas, the Geek Squad really needs a badge.
A PI ain’t a computer tech or even a computer forensics professional simply by virtue of a license. Nor is a computer forensics technician a PI. But I will respect any evidence provided by a certified and well-trained forensics tech any day of the week.
The licensing issue here is a nice loophole that should limit the RIAA until they lobby enough to get the law changed or until Best Buy gets fined for providing service for customers with computer problems — or until some major corporation gets hammered for trying to protect its intellectual property from leaving the company.
The real issue is how far can someone go in collecting evidence against you? If anything, once MediaSentry went beyond trying to connect the user to allegedly pirated music, they crossed a threshold. At the same time, you can certainly argue that peer to peer sharing, by nature, exposes your stored files to the Internet, and thus makes it public. so if you are freely sharing information about certain elements of what you have on your computer, you’re effectively allowing anyone access to that list. Now, if someone goes poking around things you have not shared, that is another matter.
The issue should not be about who is doing the poking or what credentials they have; it should be about what they can do and how far they can go.
This is new ground and the law is, as usual, at least ten years behind reality. Throw in some bad laws that are passed through trade association lobbying efforts (without real understanding by legislators) and you have a situation that will be a lawyer’s dream.