Sunday, January 4, 2009

MediaSentry Dropped by RIAA; Were Overreaching State Private Eye Regulators The Cause?

The Wall Street Journal reports that the RIAA's opponents are claiming "victory" over the recording industry trade association's decision to drop MediaSentry as its Internet investigator. Attorney and vocal RIAA opponent Ray Beckerman crows to the Journal:
MediaSentry representatives "have been invading the privacy of people. They've been doing very sloppy work," he said. Mr. Beckerman cites MediaSentry's practice of looking for available songs in people's file-sharing folders, downloading them, and using those downloads in court as evidence of copyright violations.
But is MediaSentry's "practice of looking for available songs in people's file-sharing folders, downloading them, and using those downloads in court as evidence of copyright violations" really a violation of privacy? Ridiculous.

As this affidavit from a MediaSentry employee explains, all MediaSentry does is connect to p2p networks like any other user, and gather publicly available information. As the MediaSentry employee states:
In gathering evidence of infringement, MediaSentry does not do anything that any user of a peer-to-peer network cannot do and does not obtain any information that is not available to anyone who logs onto a peer-to-peer network. Thus, when MediaSentry searches for sound recordings on the peer-to-peer network, views the files that each peer-to-peer user is disseminating to others, obtains the IP address and screen name of each user, and downloads copyrighted works distributed by each user, it is using functionalities that are built into the peer-to-peer protocols that each user has chosen to use to upload (or distribute) and download (or copy) music.
As any p2p user should know, his or her IP address, screen name, and list of songs in his/her "share" file made available to fellow infringers, are totally public and exposed to millions of others on the same p2p network -- there's no privacy to be invaded. Limewire, one of the leading p2p software providers, is explicit about this:
Everything you share with LimeWire becomes public and trackable.... Your activities on peer-to-peer networks such as LimeWire's may be monitored by copyright owners. By committing copyright infringement your risks include significant settlement fees if you are sued. Copyright owners have sued thousands of people for online copyright infringement. Don't be the next one!
Equally bogus -- though potentially more troubling -- are allegations that that MediaSentry, based in Maryland, is engaged in conduct that amounts to operating as a private investigator without obtaining proper licenses. State regulators in Michigan and North Carolina, among others, are investigating MediaSentry for alleged violations of state private investigator licensing laws. The states' theory is apparently that anyone who charges others to surf the Internet and obtain information about its residents is somehow a "private investigator" who must be licensed -- even if they never set foot in the target's state. It sounds crazy, but some of these statutes are worded so broadly that they may be read to encompass the routine sort of web surfing that millions of workers do every day. For example, the relevant Michigan statute requires a license for:
A person, firm, partnership, company, limited liability company [that]...engage[s] in the business of furnishing or supplying, for hire and reward, information as to the personal character of any person or firm, or as to the character or kind of business and occupation of any person, firm, partnership, company, limited liability company, or corporation...without having first obtained a license from the department [of Labor and Economic Growth].
Doesn't every newspaper on earth "furnish...information as to the personal character[ople] [and] firm[s]" every day? Well, better lawyer up, reporters and editors; according to Michigan's Department of Labor and Economic Growth, "The prosecutor can prosecute these cases as felonies with a maximum penalty of $5,000 and/or up to four years in prison." (Aside: wouldn't you think Michigan's DLEG has bigger fish to fry these days?)

One would think that the "civil-rights advocates" who have been so critical of MediaSentry for its collection of public data on the Internet would be screaming bloody murder about state regulators threatening what are basically professional web surfers with prison time for, well, surfing the 'net (albeit with better tools that your average browser). But if the "civil-rights advocates" have been screaming, they've been doing so very quietly.

I don't know whether these private investigator licensing investigations played any role in the RIAA's dropping of MediaSentry. But it is curious that, as the Journal reports, the RIAA has hired a company called DtecNet to replace it. DtecNet happens to be based in Copenhagen, Denmark -- presumably beyond the jurisdiction of the Michigan Department of Labor and Economic Growth.

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