• by Wendy Davis  @wendyndavis, September 9, 2008

With the record industry continuing to bring copyright infringement lawsuits against individuals, defense lawyers are increasingly putting the Recording Industry Association of America under a microscope.

The latest battleground concerns the RIAA's evidence-gathering methods and whether the group's investigator, MediaSentry, operates unlawfully in states that require private investigators to be licensed. Currently, MediaSentry has come under fire for gathering evidence used against file-sharing defendants in at least eight states, including Arizona, Florida, Maine, Massachusetts, North Carolina, Oregon and Texas.

Now, lawyers representing some University of Michigan students are calling for state authorities to pursue criminal charges against the company.

In a Sept. 5 letter to Michigan's Department of Labor & Economic Growth, a lawyer for students at the school alleges that MediaSentry conducted investigations after the agency warned the company about the state's licensing law. "Nevertheless," the letter states, "MediaSentry continued to operate, in an illegal and possibly criminal matter."

The U-M complaint joins two others in the state filed by Central Michigan University and Northern Michigan University.

The record industry typically relies on Belcamp, Md.-based MediaSentry to compile IP addresses of alleged uploaders. The organization then issues subpoenas to network operators to learn the names of people connected to those IP addresses. Since 2003, the group has sued or threatened to sue around 30,000 individuals.

Michigan revised its licensing statutes at the end of May to state that companies engaging in computer forensics must be licensed. But even before that change, Michigan's Department of Labor & Economic Growth took the position that licenses were required for computer forensics technicians.

The RIAA says that MediaSentry doesn't require a license because its employees engage in the same type of activity as all other users of peer-to-peer networks. "If private investigator licenses were required to do what the firms who help us collect information do, every user on LimeWire and other illegal p2p networks would be required to have a license," a spokeswoman said.

But even if Michigan and other states decide that MediaSentry broke the law, it's not clear what effect that would have on the lawsuits.

In Oregon, the Attorney General has argued that subpoenas for the user names associated with IP addresses should be quashed because the IP addresses were obtained by an unlicensed investigator. The judge in that case hasn't yet made a decision.

In another case, a federal judge in Florida ruled that a defendant sued for infringement can proceed with a countersuit alleging trespass and computer fraud, based on the record companies' use of unlicensed private investigators.