Has judge Gertner decided Joel is guilty?
p2pnet news view | RIAA:- “… made his computer’s ’shared folder’ visible to the world of KazaA users, for the very purpose of allowing others to view and download its contents.”
The quote isn’t from a Vivendi Universal, EMI, Warner Music and Sony Music lawyer in one of the RIAA sue ‘em all cases.
Rather, cited in a Recording Industry vs The People post on the contentious and ongoing RIAA v Joel Tennenbaum and his team of Harvard law students, led by law professor Charless Nesson, case, it’s from judge Nancy Gertner who’s hearing it.
“Defendant’s motion to suppress the MediaSentry evidence has been denied,” says the story, going on to reproduce Gertner’s ruling, to wit »»»
Judge Nancy Gertner: Electronic ORDER entered denying [853] Motion to Suppress. “The Defendant raises a number of arguments why MediaSentry’s monitoring was illegal under state and federal wiretap laws, as well as state licensing requirements for private investigators. See Mass. Gen. L. ch. 272, s. 99(A); Mass. Gen. L. ch. 147, s. 22. Given that MediaSentry did not conduct its monitoring from Massachusetts, does not maintain a presence in the state, and the computer on which MediaSentry detected Tenenbaum’s file-sharing was located in Rhode Island at the time, Massachusetts’ wiretapping and licensing provisions would not seem to reach the conduct at issue at all. See Connelly Aff. (document # 866-5); Cox Comm. Subpoena Resp. (document # 866-9). Regardless of which state’s licensing requirements are invoked, the Court previously considered a similar motion to strike in London-Sire Records, Inc. v. Arista Records LLC, Case No. 04-12434, holding that “[n]either the rules of evidence nor the Fourth Amendment bar the use of evidence arguably unlawfully obtained by private parties in their private suits.” Jan. 9, 2009 Mem. and Order at 3-4 (document # 230). Tenenbaum’s remedy for a search he believes illegal under state laws is not exclusion of this evidence, but a separate action against MediaSentry or its employer under the state statutes he identifies. That leaves only the federal wiretapping provisions. See Electronic Communications Wiretap Act, 18 U.S.C. 2510 et seq. Here, Tenenbaum proposes a difficult analogy when he compares MediaSentry’s activities to illegal eavesdropping. The Defendant made his computer’s “shared folder” visible to the world of KazaA users, for the very purpose of allowing others to view and download its contents — an invitation that MediaSentry accepted just as any other KazaA user could have. The electronic communications that ensued were conducted with the consent of both parties. As a result, it is bizarre indeed to describe MediaSentry’s decision to examine and record its counterpart’s IP address as eavesdropping, as though federal law prohibited MediaSentry from determining where the data sent to it from Tenenbaum’s computer originated. It is as if one received a letter in the mail, but was not allowed to look at the return address.This principle makes no more sense on the internet than in the non-digital world, and it is not encompassed by the Act. The type of IP information transmitted by KazaA and recorded by MediaSentry is accessible to almost anyone with a computer. Even if viewed as an “interception” — a characterization that the Court accepts here only as a hypothetical — MediaSentry’s monitoring activities fall within the statute’s safe harbor for interceptions by a party to the communication. See 18 U.S.C. 2511(1), 2511(2)(d); see also R.I. Stat. s. 12-5.1-1 et seq. (one-party consent rule parallel to the federal statute). Tenenbaum transmitted the digital files at issue to MediaSentry, making it a party to the communication, and he has not shown here that any interception occurred with the purpose of committing a “criminal or tortious act” under state or federal law. Id.; see also Order on Motions in Limine, Capitol Records Inc. v. Thomas-Rasset, Case No. 06-1497 (D. Minn. June 11, 2009). The Motion to Suppress MediaSentry Evidence [853] is DENIED.” (Gaudet, Jennifer)
But, “Couldn’t this be construed as the judge having already found Mr. Tenenbaum guilty in her own mind, by implying that he is understood to have actively engaged in file-sharing, contrary to any arguments he might be prepared to make that he was not the one responsible, or did not take such actions knowingly?” – asks RIvTP reader Tim.
Interesting question.
Kazaa, the P2P filesharing application used by the majority of RIAA victims, is currently attempting to reinvent itself — with the tacit approval, if not actual cooperation, of Vivendi Universal, EMI, Warner Music and Sony Music.
First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi
Recording Industry vs The People – Motion to suppress MediaSentry evidence denied in SONY v Tenenbaum, July 22, 2009
reinvent itself – Sharman Networks dissinters Kazaa, July 22, 2009
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July 22nd, 2009 at 2:44 pm
It seems reasonable that if one shares one’s shared folder, by intent or by accident, it is not “wiretapping” or “eavesdropping” to view that folder and its contents. For comparison, if the FBI wants to investigate ebay, they don’t need a warrant to visit ebay.com and browse the listings – they are offered without license or restriction to anyone wishing to view the site.
Not that I approve of MediaSentry, but come on!? If ANYONE can view your IP address and file list, then there is no reason they couldn’t do the same without special permission. By sharing your files you offer permission to any connected user to view and download.
July 22nd, 2009 at 3:29 pm
“If ANYONE can view your IP address and file list, then there is no reason they couldnât do the same without special permission…”
While, I agree with this, I still think it’s only logical from a “user” standpoint.
Submitting records of this activity has requirements. US law states that, in order to compile IP address lists and the like, for the purpose of presenting as evidence in a court case, the individual or party must have a valid PI license in the state affected by such investigation.
For some reason, the MAFIAA gets away with not only hiring MediaSentry with these conditions not being met, but also using their evidence acquired without meeting the same conditions, even after having fired MediaSentry. That’s where I have the problem – Why is a clearly-written law being ignored by the courts?!
July 22nd, 2009 at 6:10 pm
Sounds like “Aza’s Ghost” (above) has also decided Joel is guilty.
In fact, it does not seem “reasonable” that if someone’s files are exposed by “accident” that anyone should be allowed to download them.
And anyone cannot view your IP address. People can only view the Kazaa screen and it is not proven reliable in displaying the correct IP address. Each version of the software has to be verified reliable separately and iirc MediaSentry was using a modified copy. Maybe they messed something up! When police use breathalyzers to convict drunk drivers they have to prove the device is operating properly.
July 23rd, 2009 at 2:26 am
“Given that MediaSentry did not conduct its monitoring from Massachusetts, does not maintain a presence in the state, and the computer on which MediaSentry detected Tenenbaumâs file-sharing was located in Rhode Island at the time, Massachusettsâ wiretapping and licensing provisions would not seem to reach the conduct at issue at all.”
Wait a dog gone minute…. So Mediasentry didn’t have a presence in the state so it isn’t liable to the state laws?
Then why the bloody hell is Gary McKinnok being dragged through hell for extradition to America when he didn’t not have a presence in the US at the time but was sat at home in the UK? What he did was illegal in the UK, he should be tried in the UK.
I was under the (clearly incorrect) impression that offences that crossed state lines were more severe, not just discarded. Or should Joel’s lawyers be filing cases in Mediasentry’s home state, or should the FBI be taking up the case if it crosses states?
July 23rd, 2009 at 1:34 pm
Joel’s guilt or innocence is irrelevant to the debate – the question being addressed here is whether Mediasentry had the right to record his IP address and whether it is valid evidence in court. The court has decided to allow the evidence – it’s credibility is still in question and can be effectively renounced by the defense in court.
That “one-party-consent” is all that is required to record a communication (in the traditional form, a phone call) means that Mediasentry had legal right to record the transmission of information, in this case the IP address.
Interstate laws regarding PI licensing I am not debating – they either need or don’t need to be licensed. But it is not an invasion of privacy to view the shared folder of a peer user – that is the point of sharing – to make public your shared files and file list. That Joel may have shared it accidently is maybe Kazaa’s fault, or maybe his own, but not tha MAFIAA’s or Mediasentry’s. IF any law has been broken by Joel, then he was doing it in full view of the parties involved via the IP address.
Finally, whether or not IP info is accurate within the Kazaa program is relevant only in so much as one could prove spoofing or a multi-user IP address situation – if I can see your IP, and it really is your IP, and if further investigation proves you are, in fact, sharing copyrighted material, then the only question which remains is, ARE YOU AUTHORIZED TO SHARE, or have you committed an offense (criminal or civil).
I am a prolific downloader and file-sharer – I don’t purport to suggest that my choice is a legal one, only that it is something I BELIEVE IN. If I was caught via my IP address popping up on the MAFIAA’s copy of uTorrent, then it wouldn’t be hard to prove I was sharing. The question is, IS IT A CRIME? Should they be allowed to “see” my IP via the same software I use (or even a modified version of it)? Does it violate my privacy when I have voluntarily shared a file by my actions (intentional or not)?
I do not believe Joel is guilty of any crime. I also do not believe MediaSentry should be investigating without a license, nor that IP address alone is enough to convict someone (of a non existent crime!) – I do believe that facts are facts, and if the facts are irrelevant they will be ignored – if they are accurate and not collected in an unlawful manner, they still may be irrelevant, but should still be allowed to be presented. This was the judge’s decision to make – and it will be on the judge and jury to decide if the facts are relevant or not.
July 23rd, 2009 at 4:00 pm
“…and if the facts are irrelevant they will be ignored…”
This is where I draw a line…
Juries have an awful habit of NOT ignoring irrelevant material after it has been presented.
The juries in these cases all seem to suffer from both propaganda conditioning and a certain amount of technical ignorance (thanks to the jury selection process). All these cartel lawyers need to do (and they’ve demonstrated this quite openly) is “plant that seed” in the jurors’ minds about the “criminal” before them, and the seed just “grows”.
July 23rd, 2009 at 9:49 pm
If the process was fair and equal, we wouldn’t be having this debate to begin with. If “facts” are allowed to stand unchallenged, and the jury not re-educated, then the defense has not done its job. Without the public debate we cannot understand the issues from BOTH sides. As Devil’s Advocates we are charged with admitting when our defenses are weak and attacking from one more of the MANY reasons that these proceedings are unfair (illegal?) and finally the judge, jury and MAFIAA will relent, because we will have come to an understanding that CHANGE is what hurts… but it’s conclusion is peace.
July 24th, 2009 at 2:01 am
the sad part is in dat der us of a today you have , as i’m sure you’ve heard this said before.these day more right’s if your a rapist,bank robber or terriost than a p2p file sharer. and for a judge to make that kindof coment,to me means she’s already deceided.and should be,in the near future be receiving a cussy post in the doj,as do all good lil riaa flunkies do!
July 24th, 2009 at 6:02 am
Judge Nancy Gertner has been paid by the RIAA wit must get her!
July 24th, 2009 at 6:05 am
No justice no peace!