Fight erupts in N.Y. over RIAA efforts to nab music pirates

State law says those digging up evidence need private investigator's license

A New York judge is being asked to decide whether a company that gathers evidence on behalf of the Recording Industry Association of America (RIAA) in illegal file-sharing cases should be required to have a private investigator's license in order to do so.

The issue, which has come up in the past, is being raised again in a case involving Rolando Amurao, who has been charged by Lava Records LLC and other music recording labels with illegally distributing 528 copyrighted music files over the Limewire peer-to-peer (P2P) file-sharing network. The case is being heard in the U.S. District Court for the Southern District of New York.

A motion filed by Amurao's attorney, Richard Altman, on Jan. 28 asked the court to exclude evidence and testimony against Amurao that was gathered by Belcamp, Md.-based Media Sentry Inc. In his motion, Altman said that Media Sentry had illegally collected information about his client because it did not have a private investigator's license, as required by state law.

"Plaintiffs proceed in these copyright infringement cases based upon evidence of file-sharing or distribution derived from investigations conducted by Safenet, Inc., a private company operating under the name of Media Sentry," Altman's motion stated.

Basically, Media Sentry searches file-sharing networks looking for individuals sharing music files and identifying the IP addresses associated with the activity, Altman said. Internet service providers are then asked via a court subpoena to identify the individual to whom the IP address is assigned to. "That person then becomes the putative defendant and is sued, on the assumption that he or she is responsible for all activity occurring with that IP address, and that any music files which are available on the computer are infringing copies," Altman said.

The work performed by Media Sentry and SafeNet on behalf of the recording labels requires a private investigator's license in the state of New York, Altman said. Doing such work without such a license constitutes a misdemeanor subject to criminal penalties, he noted. "Accordingly, their testimony and evidence, being obtained in violation of New York law, should be excluded," he said.

In an interview with Computerworld, Altman said that under New York law, a private investigator is someone whose activities can include checking out an individual's identity, habits and movements or collecting evidence to be used in a court. That work requires a license, unless it's being done by the police and, under certain conditions, those working for lawyers he said. "This is a private company. So I've asked their evidence be excluded," he said

There is a possibility that Lava will drop the case and go after Amurao's daughter before the motion is ruled on, Altman added. He noted that he plans to file the exact same motion today in another RIAA copyright infringement case being heard in New York.

This is not the first time that the evidence collected by Media Sentry has been raised as an issue in a copyright infringement case such as this, said Ray Beckerman, a New York attorney who has represented several individuals in RIAA cases. However, this is the first time that a defendant has asked for evidence against them to be dismissed on the grounds that it was collected without a private investigator's license, he said.

Some of those cases were settled before the court dealt with the issue, Beckerman said. At least one other such case is still pending.

The pending case involves Arista Records LLC and 17 students at the University of Oregon. That state's Attorney General in November filed an appeal in U.S. District Court in Oregon calling for an immediate probe of the evidence presented by the RIAA when it subpoenaed the identities of 17 students at the University of Oregon for allegedly infringing music copyrights. In a 15-page brief, Oregon's assistant attorney general, Katherine Von Ter Stegge, questioned the tactics used by the RIAA's investigators in gathering evidence against those suspected of illegal file-sharing.

The first time the RIAA's evidence-gathering was challenged was in 2005, when Tanya Andersen was sued by Atlantic Records for copyright violations, Beckerman said. In that case, Andersen filed a counterclaim charging, among other things, that the recording labels had used unlicensed investigators to illegally gather evidence against her. That case was dropped by the music label before a determination was made on Andersen's counterclaim, Beckerman said.

In a similar copyright infringement case in Florida, an individual named Del Cid filed a counterclaim against recording label Universal Music Group, charging the latter with extortion and civil conspiracy involving the use of unlicensed private investigators in the state of Florida. That case was privately settled between the two parties, Beckerman said.

Jonathan Lamy, an RIAA spokesman, said the organization will continue to use evidence gathered by Media Sentry to go after illegal music downloaders. He argued that Media Sentry is not an "investigator" under the definition of the New York statute.

"Any evidence collected for our program would not be precluded from our complaints," he said in an e-mailed comment. "The Internet is without boundaries. And therefore the process of enforcing Internet offenses is without boundaries - for anyone.

"When we collect evidence, we do not have geographic information about the individual sharing the songs. We have public info -- an IP address, a sampling of the songs, and the time-stamp of the activity. We do not have their location," Lamy added. So it is not possible at the outset for anyone to know "that they are investigating someone or something in a particular state," he said.


Copyright © 2008 IDG Communications, Inc.

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