Battle brewing over MediaSentry’s subpoena stonewalling

MediaSentry is refusing to turn over evidence sought by an RIAA defendant, …

As the RIAA's investigative arm, MediaSentry is a big part of every story written about the music industry's legal campaign. One of the company's executives testified in the Jammie Thomas trial, and every complaint filed by the RIAA includes MediaSentry's printed screencaps of shared P2P folders. One defendant is arguing that those screencaps aren't enough, and MediaSentry is fighting her attempts to force the company to disclose more data about how it goes about hunting down P2P users.

UMG v. Lindor is a three-year-old case pitting the recording industry against a widowed New York woman in her mid-50s who has never used a computer; the PC in question was her late husband's. A forensic search of the PC in her home has turned up no evidence of the files, and the only evidence tying her to any copyright infringement is the username jrlindor@kazaa that was flagged by MediaSentry.

Given that the case is likely to hinge on the identify of jrlindor@kazaa, Lindor's attorney, Ray Beckerman, wants more insight into MediaSentry's investigative techniques. To that end, Lindor obtained a subpoena last November ordering MediaSentry to turn over materials related to its investigative techniques in general and the investigation of Lindor in particular.

MediaSentry has resisted the subpoena, though in January it turned over a handful of documents to Beckerman. According to a subsequent court filing, the response consisted primarily of "pages and pages of objections" but little or nothing in the way of data sought by the defendant. The stuff that's missing is fairly significant. Beckerman is seeking copies of the original files created by MediaSentry in its investigation, correspondence between the company and the RIAA related to the case, its testing methodology, packet logs, protocols, and the source code of MediaSentry's software.

The RIAA's legal team is doing its best to keep Beckerman from getting what he wants. In a late February filing, plaintiffs' counsel accused Beckerman of attempting to "obfuscate the simple facts of this case by erroneously claiming that SafeNet [MediaSentry's parent company] has improperly withheld responsive documents." In fact, the RIAA says, everything needed to mount a defense was handed over "long ago." The RIAA's legal team says that the information sought by Beckerman is "highly sensitive, proprietary information that far exceeds the scope of this case."

Not so, says Beckerman in a filing submitted earlier this week. Calling the confidentiality argument "a ruse," Beckerman says that SafeNet has been given a blanket confidentiality stipulation and protective order and that the company's assertions of privilege are "frivolous" at best.

"We do not believe SafeNet has made any kind of case for prohibiting us from examining its source code under an appropriate protective order. But if the Court should feel otherwise, it should at least direct SafeNet to turn over working copies, so that we can test their operation," reads the filing.

The judge presiding over the case has also directed the record labels to cough up data on the actual losses incurred for each of the 38 songs that Lindor is accused of infringing. Beckerman hopes to use the information as part of his argument that the statutory damages sought by the RIAA are unconstitutionally excessive. If Lindor's legal team is able to get the data it's looking for from MediaSentry, it may be able to cast serious doubts on MediaSentry's investigative methods. If those methods can be shown to be substandard, incomplete, and inconsistent with industry-accepted best practices, they could lead a jury to look at the data collected by MediaSentry with a very skeptical eye. And with neither side showing any interest in a settlement, UMG v. Lindor appears headed to trial.

Further reading

As you might expect, Ray Beckerman has a comprehensive directory of documents related to the Lindor case. Of particular interest to this story are the subpoena, motion to compel a response, the RIAA's letter opposing the motion to compel, and Beckerman's most recent response.

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