Rich Fiscus
14 Jul 2008 13:27
If you've followed the on-going saga of record label lawsuits against their customers over P2P file sharing you've probably already heard of MediaSentry. If so, you may have read about how they've gone on the defensive as the legality of their investigations on behalf of the RIAA has been called into question. Defendants in more than one case have claimed MediaSentry's activities make them private investigators, even though they're not licensed in any state.
Now the company is being investigated in North Carolina in connection with several John Doe lawsuits. In these suits Capitol Records is going after North Carolina State University students whose identities have so far not been revealed. Attorney Stephen E. Robertson, who represents at least one of the alleged file sharers, has filed a complaint with the North Carolina Protective Services Board accusing the RIAA of conducting investigations that are "both illegal and seriously flawed."
Mr. Robertson alleges that MediaSentry representatives are acting as "unlicensed and unlawful investigators" who "claim to have entered the hard drives of hundreds, if not thousands, of private North Carolina citizens to look for music recordings stored there." It goes on to say that MediaSentry then sells the IP addresses of individuals found sharing copyrighted content to the labels.
This may turn out to be an important point since it opens up the labels for arguments that investigators' findings are biased toward telling the RIAA what they want to hear even if it's not accurate. In at least one case Universal Music Group (UMG) has specifically denied that this is the case. New York attorney Richard Gabriel, representing UMG, said as much when arguing against Marie Lindor's request to see the contract terms between the RIAA and MediaSentry.
He said of the agreement, "There's no incentive for if you find somebody who is doing this versus if you don't find somebody." If MediaSentry is being paid by the infringer that would clearly contradict his statement.
Last week, on his popular Recording Industry vs The People blog, Ray Beckerman pointed out MediaSentry's response to an official inquiry in Michigan regarding their investigative activities. In a letter to the Michigan Department of Labor they explained that they aren't actually investigators, but rather technical analysts who simply interpret publicly available information. According to their lawyers that exempts them from any licensing under Michigan law.
Later he also pointed out where UMG lawyers have successfully blocked his discovery of MediaSentry's practices with claims that they actually have no part in the technical side of the case. Instead UMG claims they simply act as investigators, uncovering information about potential defendants. This argument has so far enabled record labels to block attempts to force disclosure of MediaSentry activities on the grounds that it's trade secret.
It's likely that both MediaSentry and the RIAA will focus on the issue of whether the information gathered is publically available. Of course information gathered by walking onto someone's private property and looking in a window could be characterized as publically available, but that doesn't automatically make it legal.
Regardless of whether they're eventually determined to be investigators or technical experts it seems reasonable to assume MediaSentry's methods can't remain secret much longer. If acting as investigators, it seems likely that their activities would fall under the jurisdiction of the licensing bodies in any state where the targets of their investigations reside. If they're technical analysts it should open them up as legitimate targets for defense discovery.
In either case, shedding more light on their secret activities can't be a bad thing.