ABA Says RIAA File Sharing Watchers Shouldn't Need Private Investigators' Licenses
from the and-they're-probably-right dept
We've seen a few cases against the RIAA in which either state officials or defendants will point out that the RIAA's hired hands in tracking down file sharers -- companies like MediaSentry -- are violating state laws requiring private investigators' licenses for certain activities. Now, the American Bar Association (ABA) has put out a report suggesting that this is silly, and that states and judges shouldn't require such companies to have a PI's license. While I'm a bit surprised at myself, I actually agree with the ABA. As distasteful as the RIAA's legal strategy is, and as flimsy as the evidence is that these company's collect, going after them for not having a PI's license is focusing on a loophole, not the actual merits. And, honestly, most of these requirements for PI licenses are really just a way to create artificial scarcity in the PI business, not actually a way to ensure safety or quality. The RIAA's efforts to sue music fans have plenty of problems, but focusing on whether or not companies like MediaSentry need a PI license seems like a tangent that takes away from the bigger picture.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, investigations, lawsuits, monitoring, private investigators license
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Letter of the law and all that?
I'm not at all sure I'm comfortable with suggesting a system whereby courts selectively disregard laws based on some kind of nebulous idea that those laws really shouldn't exist or don't serve the purpose they purport to.
[ link to this | view in chronology ]
Re: Letter of the law and all that?
1. I disagree with the basis of the law.
2. I think it's a stretch to claim that it applies in this situation.
So, both.
[ link to this | view in chronology ]
I sort of agree...
What I would say is yes require the PI's licence but make it trivial to get - say a police check for fraud and an administration fee - but harder to keep - if you break the law or knowingly present invalid evidence you loose the licence and have to go through an appeals process showing why you should get it back.
This increases efficiency on 2 points.
1. The market for PI's - increasing competition, decreasing barriers to entry etc.
2. The courts don't have to deal with people who deal in invalid evidence, decreasing the load on the courts.
You could instead just have kinda an anti-PI licence - just bar people/companies from working as PI's rather than revoking a licence, which would further reduce the barriers to entry but I would think you'd loose out on other points. "Here is my PI licence, check that it's valid" is a lot easier than "Here if my proof of ID and my company name, chech were not barred from PI work"
[ link to this | view in chronology ]
Wrong!
If what they give to the RIAA is the basis for the RIAA to launch a legal campaign against me, I want to SEE the proof and it had better legally obtained.
Otherwise, it's like the prosecution hiring some thug off the street to break into people's places grab evidence and then submit it to the court.
[ link to this | view in chronology ]
Re: Wrong!
I would guess that in a lot of the cases where a profession requires you to be licensed, it did not start out as a means of reducing competition. Take a license to sell insurance. In the beginning, anyone could and then as insurance scams became widespread, the government took steps to protect the people. Over time, the lobbist expanded the requirements to force reduced competition.
[ link to this | view in chronology ]
Re: Wrong!
If that's the case, let that fact come out in court and be used to discredit the RIAA collection method.
That's got nothing to do with having a PI license.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
If I have to....
http://www.pcmag.com/article2/0,1895,2324220,00.asp
I'm sick of one set of laws that apply to companies and second set that apply to the rest of us. What more evidence do you need that the people are no longer in control of the government or it's laws.....
[ link to this | view in chronology ]
If someone is going to be sued for insanely excessive "damages" then they absolutely have a right to make sure that the evidence gathered against them is collected in accordance to the law, follows established protocols regarding that type of evidence, and accountability to the person or company collecting it. Transparency and accountability.
If MediaSentry doesn't need a PI license, why would your local police department's crime scene investigators need some type of license or accreditation to collect evidence for a murder trial?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
RIAA PI License Requirements
It is hard for an average citizen to sue an out-of-state entity in state court for violation of state laws if the entity has no office or no minimal presence in the state due to civil and criminal jurisdictional requirements in each state.
By requiring PI licensing, MediaSentry then has the same liability as any other company operating inside the state - it has to respond to lawsuits inside the state as opposed to plaintiffs having to sue them where MediaSentry is incorporated. It is a much cheaper and easier alternative than suing in another state for the individual plaintiff.
Given the RIAA's excesses, it only seems fair to level the playing field a little to make it easier for an average individual to sue MediaSentry within the state where the individual lives.
[ link to this | view in chronology ]
The fact should remain that evidence gathering and expert witness testimony needs to come from...experts, with some form of credentials to establish some standard of expertise and some standard for the practice of lawful evidence gathering.
If we reinforce the notion that the ends justifies the means, and that it is acceptable to break the law to uphold the law, we will find ourselves on very dangerous ground, upon which a solid and undeniable precedent for the acceptance of vigilantism at even a general level is set.
[ link to this | view in chronology ]
PI vs Expert Witness
There seems to be a subtle legal point here that you might be missing: basically, an outfit like MediaSentry can give evidence either as a private investigator or as an expert witness.
However, as an expert witness, your investigative techniques become subject to investigation and discovery by defendants. Whereas as a private investigator, you are protected from that.
So, it appears that being licensed as a private investigator gives you certain privileges that the RIAA do find useful, and would be loath to give up.
[ link to this | view in chronology ]
Re: PI vs Expert Witness
[ link to this | view in chronology ]
Mediasentry's evidence should be considered fiction.
I'm sorry Mediasentry is providing "evidence" in a court of law. The evidence that the provide is flimsy on it's own without the issue of pondering whether or not it's been manufactured.
[ link to this | view in chronology ]
Re: Mediasentry's evidence should be considered fiction.
So let that come out in court to show why the evidence shouldn't be trusted. But don't make it illegal for them to do what they do.
You're arguing that the evidence is weak. On that I agree.
But just because the evidence is weak doesn't mean that they should need a PI license.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
They're not. The ABA report wasn't about the RIAA or MediaSentry.
Based on a very quick reading of the report I'm not even sure the RIAA investigation falls into the category of investigation the ABA report is talking about. The report appears to be talking about directly examining computers in the investigator's possession for things like signs of deletions, and checking networks for security, not using the internet to spy on the content of other people's computers.
The ABA report is specifically talking about computer experts who will potentially testify as expert witnesses. MediaSentry denies that it's an expert witness, because it wants to avoid the disclosures they'd have to make as an expert witness. So the argument in the ABA report, which specifically refers to the Rules of Evidence provision covering expert witnesses, doesn't even apply to MediaSentry.
[ link to this | view in chronology ]
You can't revoke a licence that isn't required.
[ link to this | view in chronology ]