Reinventing a Broken Wheel – International Investigations and Bad BitTorrent Defenses 

“There is nothing new under the sun.” Ecclesiastes 1:4-11

An attorney’s job is to know the facts and law and argue the facts and the law. But if the facts are against you and the law is against you, then you need to be creative. If not to win, to at least justify the time and billing for your actions. And this leads to a lot of creative arguments, and sometimes plagiarism, even if only to plagiarize other failed arguments.   It is hard for an attorney to make a living telling clients, “You don’t have a case, and there is nothing I can do.” (Or more accurately, nothing I can bill you for…) So an attorney needs to come up with something that at least looks good on paper. After all, a client is rarely able to do the proper legal research to know that an attorney only managed to dig up a dead argument, polish it off, and sell it again as new.

An instance of this recycling can be seen in a recent spate of filings in BitTorrent litigation arguing investigations need to be licensed by the state of the defendant or the case should be thrown out on a technicality.

The argument goes something like this: Since most states have laws that require an investigator be licensed for their investigations to produce admissible evidence, an unlicensed investigator’s evidence should not be admitted.

This argument sounds good, but like many of the other defenses that get sold to defendants it does little more than provide temporary false hope and drive up legal fees that are usually then paid by the defendant. The courts that have looked at this have universally rejected this argument on a number of grounds. The internet does not recognize a state line, so such limitations are largely meaningless in the digital world.

As stated several years ago by Judge Nancy Gertner in SONY BMG Music Entertainment v. Tenenbaum:

“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)

In the Tenenbaum case the defendant fought to the bitter end, even trying to take their arguments to the U.S. Supreme Court, but still ended up owing $675,000 in damages.  Since Tenenbaum no judge has held differently. But the argument still sounds good and attorneys are still trying to sell it to their clients.

Exemplar Recent Opinion: Malibu Media, LLC, v. John Doe subscriber assigned IP address 24.94.99.165, 8:14-CV-659, Dkt. 16, (M.D. Fla. July 29, 2014) :

Excerpt:

Plaintiff’s claim is plausible on its face and should not be dismissed. Furthermore, Doe Defendant does not have standing to challenge the subpoena issued by Plaintiff to ISP Time Warner Cable as there is no right or privilege associated with an internet service subscription. Finally, a protective order is inappropriate as sufficient safeguards were put in place when the Court granted Plaintiff leave to conduct early discovery.
Accordingly and upon consideration, it is RECOMMENDED that:
(1) Doe Defendant’s Omnibus Motion to Dismiss Action with Motion to Quash Non-Party Subpeonas or Enter Protective Order, with Incorporated Memorandum of Law (Dkt. 8) be DENIED.

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