Thursday, June 4, 2009

Labels defend MediaSentry evidence; decry Thomas motion's 'unfortunate and unprofessional attack' on plaintiffs' counsel

The record label plaintiffs have fired back at accused peer-to-peer infringer Jammie Thomas' effort to exclude all evidence collected by MediaSentry from her June 15 re-trial, arguing that her allegations that the firm violated the Minnesota Private Detectives Act, the Pen Register and Trap and Trace Devices Act, and the Electronic Communications Privacy Act are baseless and do not justify the suppression of any evidence. From the introduction to their brief:
Defendant’s Motion to Suppress is premised on an entirely fictional set of facts and law. Factually, Defendant’s Motion fundamentally misconstrues how information travels on the Internet, how KaZaA and the FastTrack network operate, and the actions taken by MediaSentry to record files and data sent to it. All of the information collected by MediaSentry was available to any user of the FastTrack network – millions of users at any given time. All MediaSentry did was record or document the information that was sent to it. The recording by a recipient of information sent to that recipient cannot be, and was not, a violation of the law and, as such, it should not be suppressed. Legally, it is hornbook law that the Fourth Amendment, and thus the exclusionary rule, does not apply in civil cases. And none of the statutes Defendant claims MediaSentry to have violated provide for exclusion of evidence. In short, MediaSentry did not violate any State or Federal law and there is no basis for excluding evidence gathered by MediaSentry.
The brief explains in detail why the statutes in question do not apply to the activities of MediaSentry, which involve logging on to publicly accessible p2p networks and recording the information it observes. As to the Minnesota private investigator statute, it makes the obvious point that the statute simply does not apply to a firm like MediaSentry, which has no physical presence in the state. See Minn. Stat. § 326.3381, subd. 5 (procedure for licensing out of state applicants who “establish a Minnesota office.”). And the labels provide abundant support for their argument that, even if these statutes were violated, that does not render MediaSentry's evidence inadmissible; there is no civil exclusionary rule:
As the Supreme Court explained in United States v. Janis, 428 U.S. 433, 447 (1976), “In the complex and turbulent history of the [exclusionary] rule, the Court never has applied it to exclude evidence from a civil proceeding, federal or state.” See Thompson v. Carthage Sch. Dist., 87 F.3d 979, 981-982 (8th Cir. 1996); United States v. Tauil-Hernandez, 88 F.3d 576, 581 (8th Cir. 1996) (“The Supreme Court has declined various invitations to extend the Fourth Amendment exclusionary rule beyond the criminal trial.”). See also Vander Linden v. United States, 502 F. Supp. 693, 696 (S.D. Iowa 1980) (“On a number of occasions the United States Supreme Court has stated that the purpose of the exclusionary rule is to safeguard Fourth Amendment rights by deterring future and unlawful police conduct.”); Mejia v. City of New York, 119 F. Supp. 2d 232, 254 (S.D.N.Y. 2000) (“the Fourth Amendment’s exclusionary rule does not apply in civil actions other than civil forfeiture proceedings.”) (citing Pennsylvania Bd. of Probation & Parole v. Scott, 524 U.S. 357, 363 (1998)).
Lastly, the plaintiffs take on the unsupported and reckless allegation in Thomas' motion that the labels' "lawyers, led by Matthew Oppenheim and Richard Gabriel, violated the ethical rules governing our profession on an unprecedented scale." I can't imagine such a personal attack on plaintiffs' counsel -- especially one so patently frivolous and over-the-top -- will endear Thomas' new counsel to the court. As the labels say:
Defendant has not and could not cite a single authority to support her claim that Plaintiffs or their counsel have in any way violated any rule of ethics. This argument is merely an unfortunate, and unprofessional attack made in a desperate attempt to suppress evidence that Defendant and her counsel know is ruinous to her defense.
I would be shocked if the court grants Thomas' motion.

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