Class Action Against RIAA

So the RIAA may be subject to a class action suit in Oregon. As the folks at Recording Industry v. The People note the 109 page complaint begins by invoking the RIAA’s statement that it sometimes catches dolphins when fishing. It is a bold way to show the possible callousness of the RIAA and MediaSentry (the group that helps monitor and identify people to sue and which is also named in the class action suit) but seems a bit reliant on the “see they are evil” idea rather than solid causes of action. I have only scanned the complaint but the other claims could pose problems for the RIAA. The RICO claims and the trespass to chattels claim offer chatter fodder. If nothing else the chattels doctrine which has been questioned if not mocked may end up protecting individuals in these cases. Furthermore, the privacy claims seem to go to property ideas in that once the plaintiff thought something was on her computer (based on alleged acts by the defendants) she spent money to protect her property. With 109 pages there is more to think on but those alone catch attention.

The industry of course says these are old claims and that they will go away. But the AP report notes that much of the case parallels the Oregon Attorney General’s case. If so, the claims may have some legs. Plus if this one gets to discovery, the information about how the RIAA and MediaSentry conduct their business could harm their efforts. Most likely a flurry of trade secret and similar claims about “we can’t tell or our business will die” or “the bag guys will be tipped off” will be launched to obtain protective orders. And if the acts are somehow legal, the argument could have some merit. Last if the case proceeds one may wonder whether these details will come out or whether the plaintiffs will accept some sort of buy out offer the RIAA will likely make if the case starts to appear to be a loser for it.

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12 Responses

  1. shane says:

    You forgot to add the undisputed fact that Media Sentry is not licensed to perform private investigative work in any state that requires licensing (i.e. almost all states) and that the RIAA has known that for years.

    Conspiring to use an unlicensed investigator as its sole basis for tens of thousands of lawsuits definitely puts the RIAA at risk for being on the loosing end of a RICO suit, not to mention all the other causes of action.

  2. shane says:

    …and did I mention that operating as an unlicensed investigator is a **criminal** offense in many states. Media Sentry may have to avoid giving depositions in those states lest their operatives be arrested while they are within the states jurisdiction. Likely? Perhaps not. Legally possible? Abso-frick’n-lutely.

  3. Deven says:

    Dear Shane

    Thanks for the extra points. I did not get a chance to dig into the full complaint or the facts. If you are correct about “undisputed” (which seems as a legal matter a hard point to make at this stage in the litigation but perhaps you are not using the term in the legal sense) then that could pose the problems you suggest. Either way it seems that you are pointing to the way this one could become a bit crazy, and if so I agree.



  4. Shane says:

    AFAIK, Media Sentry has never disputed the accusation that it is unlicensed nor offered one iota of proof that it is licensed. In fact, it refused to release any such documents in discovery–assuming any ever existed. Instead, Media Sentry and RIAA have claimed that the investigations performed by Media Sentry do not require a license because Media Sentry is only examining information available to the public if they knew how to look for it. In this, the RIAA ignores that is the primary job of private investigators collecting information for litigation, to collect relevant information that the public could find if they knew how to look for it–that specialized knowledge of how to look for information is a large part of being a PI and that such duties are covered by state PI licensing laws.

    However, we don’t even know exactly what Media Sentry does because they claim to be a non-expert “fact witness” and at the same time claim to use trade secret proprietary methods developed through thousands of man hours of work which they refuse to divulge in discovery even under a confidentiality agreement. The two claims of operation are contradictory and Media Sentry seems to clearly fall under the laws set up to regulate PIs, laws designed to keep people from being railroaded by shoddy, unaccountable investigations.

  5. Bruce Boyden says:

    I don’t know what the PI licensing requirements are in Oregon, but it *can’t* be the case that you need a license from the government to look at information that is publicly available.

    And to the extent this complaint parallels the Oregon Attorney General’s earlier opposition to RIAA subpoenas, so much the worse for the complaint, I think.

  6. shane says:

    “I don’t know what the PI licensing requirements are in Oregon, but it *can’t* be the case that you need a license from the government to look at information that is publicly available”

    Indeed, nor do you you need a law license to **look** at law books. But if you want to **practice law** for hire you need to be a licensed attorney and if you want to **conduct investigations** for hire–especially for the purpose of collecting information for purposes of litigation–you need a Private Investigator’s license in most states.

  7. Shane says:

    BTW, BB, the relevant statue for Oregon:


    703.401 Definitions. As used in ORS 703.401 to 703.490, 703.993 and 703.995, unless the context otherwise requires:

    (1) “Client” means a person who engages an investigator, firm, partnership, corporation or other entity for the purpose of conducting lawful activity on the person’s behalf.

    (2) “Investigator” means a person who is a licensed investigator under ORS 703.430 and who engages in the business of obtaining or furnishing, or who solicits or accepts employment to obtain or furnish, information about:

    (a) Crimes or wrongs done or threatened against the United States or any state or territory of the United States;

    (b) The identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activities, movements, whereabouts, affiliations, associations, transactions, acts, reputation or character of any person;

    (c) The location, disposition or recovery of lost or stolen property;

    (d) The cause of or responsibility for fires, libels, losses, accidents, damages or injuries to persons or property; or

    (e) Evidence to be used before any court, board, officer, referee, arbitrator or investigation committee. [1997 c.870 §1; 2001 c.838 §1; 2005 c.613 §9]

    703.405 License requirement. A person may not act as an investigator or represent that the person is an investigator unless that person is licensed under ORS 703.430. [1997 c.870 §2; 2001 c.838 §2]

    703.406 [1989 c.1055 §§2,3,7(2); 1995 c.386 §11; renumbered 8.435 in 1995]

    703.407 Expert witness exception. The licensing requirement of ORS 703.405 does not apply to a person while the person is:

    (1) Providing testimony in a court as an expert under ORS 40.410; or

    (2) Conducting investigations or reviews or engaging in other activities in preparation for providing testimony in a court as an expert under ORS 40.410. [2003 c.687 §14; 2005 c.613 §10]

    {emphasis added, apologies for the formatting–all of which is sometimes automatically removed by the comment engine}

    Note that the RIAA are estopped from claiming Media Sentry is an expert witness since they have specifically–and vehemently–claimed they are only a “fact witness,” and even that is moot as they don’t meet the scientific standards for “expert” anyways since their secret methods have not been reviewed by anyone.

  8. Bruce Boyden says:

    Rule 702 doesn’t require prior public knowledge of the actual methods used, it only requires that they be reliable.

    I note there’s a long, long list of exceptions here, well beyond experts, and it strikes me as a dubious attempt to save this statute from constitutional problems:

    703.411 Exceptions. ORS 703.401 to 703.490, 703.993 and 703.995 do not apply to:

    (1) A person employed exclusively by one employer in connection with the affairs of that employer only;

    (2) An officer or employee of the United States, or of this state, or a political subdivision of either, while the officer or employee is engaged in the performance of official duties;

    (3) A person acting as a private security professional as defined in ORS 181.870;

    (4) A person who is employed full-time as a peace officer, as defined in ORS 161.015, who receives compensation for private employment as an investigator, provided that services are performed for no more than one person or one client;

    (5) A person that provides secured transportation and protection, from one place or point to another place or point, of money, currency, coins, bullion, securities, bonds, jewelry or other valuables;

    (6) A person that places, leases, rents or sells an animal for the purpose of protecting property, or any person that is contracted to train an animal for the purpose of protecting property;

    (7) A person engaged in the business of obtaining and furnishing information regarding the financial rating of persons;

    (8) An attorney admitted to practice law in this state performing the attorney’s duties as an attorney;

    (9) A legal assistant or paralegal engaged in activity for which the person is employed by an attorney admitted to practice law in this state;

    (10) Insurers, insurance adjusters and insurance producers licensed in this state and performing duties in connection with insurance transacted by them;

    (11) Any secured creditor engaged in the repossession of the creditor’s collateral and any lessor engaged in the repossession of leased property in which it claims an interest;

    (12) An employee of a cattle association who is engaged in inspection of brands of livestock under the authority granted to that cattle association by the Packers and Stockyards Division of the United States Department of Agriculture;

    (13) Common carriers by rail engaged in interstate commerce and regulated by state and federal authorities and transporting commodities essential to the national defense or to the general welfare and safety of the community;

    (14) Any news media and the employees thereof when engaged in obtaining information for the purpose of disseminating news to the public;

    (15) A legal process service company attempting to serve legal process;

    (16) A landlord or an agent of a landlord performing duties in connection with rental property transactions; or

    (17) An engineer or employee of an engineer while the engineer or employee is performing duties as an engineer or on behalf of an engineer. As used in this subsection, “engineer” has the meaning given that term in ORS 672.002.

    It looks to me like bloggers who have Google ads and blog about other people are “investigators” that need to be licensed, unless they can argue that they are “news media,” which in some cases I think will be dubious. (Is a Cats Are Cute website “news media”?) Dating sites that confirm identities are investigators. Freelance paparazzi are investigators. Graphics firms that do trial prep work are investigators. Indeed any trial consultants — e.g. jury consultants (they provide “information about … [e]vidence to be used before any court” — namely, what will work with the jury), nontestifying experts, heck even non-law-firm proofreaders — are investigators. The breadth of the statute is ludicrous and likely unconstitutional.

  9. Shane says:

    “It looks to me like bloggers who have Google ads and blog about other people are “investigators” that need to be licensed, unless they can argue that they are “news media,” which in some cases I think will be dubious.”

    The degree to which Blogging is a legally a legitimate news gathering enterprise is certainly in flux but that is really a straw man. Media Sentry actively investigates alleged copyright infringement for purposes of litigation and falls squarely in solid statute and not at the arguable fringes. They advertised their services as “investigative” and have been called “investigators” in RIAA filed court documents.

    You can argue that the statute may be over-broad but Media Sentry’s activities do not fall into the areas of statue that might be overturned anymore than the statues that regulate who may practice law will be overturned, for which your same arguments about graphics firms, trial consultants and proof readers would apply equally and equally dubiously.

    But if you would like to test your theory why not put up a web page offering “Private Investigative Services” specifically to residents and business of the State of Oregon? Be sure to note that you don’t need a license because the law is ludicrous and overbroad–surely a great defense that will get a full and sympathetic hearing by judges who look forward to being inundated with the testimony of unaccountable unlicensed investigators.

  10. Shane says:

    It occurs to me, BB, based on your comments it might be constructive to ask you what you **do** think is constitutional to regulate vis-à-vis private investigations for litigation, and to the extent you think no licensing is permissible contrast that which whether you think it is constitutional to regulate who may practice law and how based on the same precepts.

  11. Bruce Boyden says:

    Shane, you’re obviously deeply invested in the validity of Oregon private investigator licensing for some reason. I don’t think I’m saying anything incredibly controversial here. The law requires a license to gather publicly available information, which is problematic. Another class of people who are subject to the law: historians, sociologists, in fact all researchers that have people as their subjects. I don’t think saying all the questionable cases are at the “fringes” while all the cases you want the law to apply to are at the “core” really helps save the law. And I have no idea how your analogy to unauthorized practice of law statutes is supposed to apply here, but I’ll just note for the record I’m not a big fan of how broad some of those are, either — I think that’s a more controversial position, however.

    One thing you might be able to do to save the law from a First Amendment or other attack would be to limit it to information gathered in some prohibitable way, e.g., illegal methods or via intrusions on privacy or deceptive practices such as pretexting. But requiring licensing of ALL information-gathering and disseminating businesses seems to me not to be sustainable under the First Amendment.

  12. Shane says:

    I’m no more deeply attached to the idea that the law is valid than you are that it is not. It is very similar in scope to other PI laws in other states. While you can certainly argue that the fringes may have 1st Amendment conflicts, you have so such case for the core of the law, such as the regulation of investigators who collect information for purposes of litigation, nor have you argued why PI licensing is inherently over-broad but attorney licensing is not, especially since practicing law only requires the use of publicly available laws and facts. You are mistakingly focusing on the “public” nature of the facts and ignoring the functional aspect of the profession. The public has a reasonable interest in insuring the integrity of the information collected for hire for purposes of litigation. Your interpretation to the contrary is so broad that no professional or business licenses should be allowed because they interfere with 1st Amendment rights. Your position isn’t controversial except in your overreaching scope.

    You continue to avoid addressing the fact that Media Sentry is actively investigating and collecting information specifically for litigation–a narrow aspect of the PI law rather unlikely to be overturned. The statute does not have to be all or nothing if struck some aspect of it were to be struck. You write as if that is the only possibility.

    But, as with all law, the proof of the pudding shall be in the eating and no one position is guaranteed “correct” no mater how well reasoned since the interpretation of laws is subject to the whims and caprices of the system. Thus, there is no point speculating more. We shall see how the cases go, and either way, neither will be a vindication, necessarily, of our positions.