Copyright Law

Practice tip : collecting materials on MediaSentry relating to (a) illegality, (b) discoverability, and (c) admissibility

By Ty Rogers and Ray Beckerman

There is going to be lots of litigation in the days ahead over the issues of (a) MediaSentry's unlicensed investigations, which are a crime in most or all states of the United States, (b) the discoverability of the underlying MediaSentry materials, and/or (c) the admissibility of the doctored text printouts, prepared for litigation, upon which the RIAA will seek to base its case.

From clues left about by the RIAA's PR hacks and other agents, it can be anticipated that their lawyers will argue that (a) MediaSentry wasn't really 'investigating', (b) it was doing what any other KaZaa (or other Fasttrack) user could do, (c) it isn't an expert witness, and (d) what it was doing was secret and "proprietary". (If you find any inconsistencies among these, please don't complain to me; complain to Richard Gabriel and Matthew Oppenheim, the architects of the house of lies).

It is important to the practitioner to be able to access a collection of the RIAA's prior pronouncements on MediaSentry, because the RIAA's lawyers will say just about anything, and often will contradict what they say in one context, in another context (sometimes even in the same document).

So the astute practitioner should be ready with a complete set of the papers (although it is of course a growing collection).

Here are some materials you might find useful. It's of course just a partial list. If you have any additions to suggest, please email them to me, or post them in a comment.

A collection of MediaSentry affidavits and declarations

A transcript of the deposition of an officer of MediaSentry*

RIAA's reply memo, in UMG v. Lindor, in support of protective order* (Arguing at pages 6-9 that MediaSentry's processes are "highly proprietary")(Arguing at page 4 that MediaSentry does only what any KaZaa user could do)(Arguing at pages 9-10 that there's an attorney client privilege even though there was no attorney and no client)(Arguing at pages 11-12 that MediaSentry is not an expert witness)

Declaration of Bradley Buckles* (Arguing that MediaSentry was given "instructions and parameters for conducting online investigations" by the RIAA)(Arguing that MediaSentry's processes are highly proprietary to MediaSentry and highly confidential)

* Document published online at Internet Law & Regulation

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Full post as published by Recording Industry vs The People on February 08, 2008 (boomark / email).