• by Wendy Davis  @wendyndavis, February 7, 2008

For five years, the Recording Industry Association of America has relied on the company MediaSentry to gather evidence for lawsuits against alleged online file-sharers. But now MediaSentry's tactics are being called into question by defense lawyers, who argue that courts should bar key evidence or quash subpoenas based on allegedly improper investigations.

In at least three cases now pending across the country--in New York, Oregon and Massachusetts--lawyers have alleged that MediaSentry is not a licensed private investigator in the states where the lawsuits were brought. Therefore, they argue, the RIAA should not be allowed to use information gathered by the company in court.

"I'm asking the judge to exclude anything obtained by MediaSentry on the basis that they didn't have a license," said Richard A. Altman, who represents the defendant in a case pending in federal district court in White Plains, New York.

The RIAA counters that MediaSentry is not an "investigator" as that term is defined by statute. "Any evidence collected from MediaSentry for our program would not be precluded from our complaint," the organization said in an e-mail to Online Media Daily. SafeNet, parent company of MediaSentry, declined to comment for this article.

Faced with declining music sales, which the record industry attributed to online piracy, the labels in 2003 began suing individuals for allegedly uploading tracks to peer-to-peer sites. Since then, the RIAA has targeted at least 20,000 people. Many have agreed to pay around $3,000 to settle the cases, but some have fought back in court.

The RIAA has typically identified defendants by issuing subpoenas to network operators based on information provided by MediaSentry, which compiles IP addresses of alleged uploaders to peer-to-peer sites.

Because cases can drag for months, if not years, U.S. courts are just now beginning to consider some of the issues posed by the investigative tactics. "This is not something that comes up very often," Altman says. "There aren't a lot of cases on the subject of whether illegally obtained evidence is admissible in a civil case."

Altman's client, Rolando Amurao, was accused of uploading more than 500 files to Limewire. Last week, Altman filed papers asking the court to exclude the MediaSentry evidence because the company does not have a New York state private investigator's license.

The RIAA recently asked to drop the lawsuit against Amurao, but has stated in court papers that it now believes Amurao's adult daughter is the infringer, leaving open the possibility that it will sue her. The judge in that lawsuit is slated to hear further argument later this month.

In Massachusetts, a Boston University student last month raised the "illegal investigations" of the RIAA as a reason to quash a subpoena. The student's legal papers in that case included the allegation that the state police have sent MediaSentry a cease and desist letter for conducting private investigations without a license.

Likewise in Oregon, where the RIAA is seeking to learn the identities of students at the University of Oregon, the state attorney general also is opposing the subpoena based on MediaSentry's tactics. In that case, the attorney general wrote in court papers that MediaSentry might be committing a misdemeanor in the state.