Virgin Records America, Inc v. Thomas

Filing 353

Attachment 1
RESPONSE in Opposition re 344 MOTION for New Trial Remittitur, and to Alter or Amend the Judgment filed by Arista Records LLC, Capitol Records, Inc, Interscope Records, Sony BMG Music Entertainment, UMG Recordings, Inc, Warner Bros Records Inc. (Attachments: # 1 Exhibit(s) A to Response in Opposition to Motion for New Trial, # 2 Exhibit(s) B to Response in Opposition to Motion for New Trial, # 3 LR7.1 Word Count Compliance Certificate Response in Opposition to Motion for New Trial)(Reynolds, Timothy)

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Virgin Records America, Inc v. Thomas Doc. 353 Att. 1 Case 0:06-cv-01497-MJD-RLE Document 353-2 Filed 08/14/09 Page 1 of 6 EXHIBIT B Case 0:06-cv-01497-MJD-RLE Document 353-2 Filed 08/14/09 Page 2 of 6 From: <> To: <> Sent: Wed Jul 22 05:21:47 2009 Subject: Activity in Case 1:03-cv-11661-NG Capital Records, Inc. et al v. Alaujan Order on Motion for Miscellaneous Relief This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. United States District Court District of Massachusetts Notice of Electronic Filing The following transaction was entered on 7/22/2009 at 7:21 AM EDT and filed on 7/22/2009 Capital Records, Inc. et al v. Alaujan Case Name: 1:03-cv-11661 Case Number: Filer: Document Number: No document attached Docket Text: Judge Nancy Gertner: Electronic ORDER entered denying [853] Motion to Suppress. "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 Case 0:06-cv-01497-MJD-RLE Document 353-2 Filed 08/14/09 Page 3 of 6 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) 1:03-cv-11661 Notice has been electronically mailed to: Matthew H. Feinberg, Matthew A. Kamholtz Michael A. Kehoe Kenneth J. Parsigian Charles J. DiMare, Mary T. Sullivan,, Terence K. Ankner Ronald N. Whitney 2 Case 0:06-cv-01497-MJD-RLE Document 353-2 Filed 08/14/09 Page 4 of 6 John J. Regan Daniel T. Doyle Mark A. Walsh Donna L. Conley Seth M. Yurdin Daniel J. Cloherty,,, Charles Nesson,,,, Raymond Sayeg, Jr Theodore G. Fletcher Simon B. Mann Eve G. Burton, Laurie Rust,, Timothy M. Reynolds,, Michelle Bennett Debra B. Rosenbaum Jennifer L. Dawson James E. Richardson Matthew C. Sanchez Anna V. Volftsun Victoria L. Steinberg Free Software Foundation 1:03-cv-11661 Notice will not be electronically mailed to: 3 Case 0:06-cv-01497-MJD-RLE Document 353-2 Filed 08/14/09 Page 5 of 6 Charles M. MacLean 869 Concord Street Framingham, MA 01701 Charmaine M. Blanchard Law Offices of John J. McGlynn, Jr. 4 Norman Street Salem, MA 01970 Diane Briggs 7 Ponkapoag Way Canton, MA 02021 Diane Cabell 1587 Massachusetts Avenue Cambridge, MA 02138 Douglas T. Evans 58 Main Street Topsfield, MA 01983 George W. Gray , Jr Law Office of George W. Gray Jr. 110 Haverhill St. Suite 315 Amesbury, MA 01913 John Palfrey 1587 Massachusetts Avenue Cambridge, MA 02138 John J. McGlynn , Jr Law Office of John J. McGlynn, Jr. 4 Norman Street Salem, MA 01970 Katheryn J. Coggon Holme Roberts & Owen LLP Suite 4100 1700 Lincoln Street Denver, CO 80203-4541 Matthew Oppenheim The Oppenheim Group 7304 River Falls Drive 4 Case 0:06-cv-01497-MJD-RLE Document 353-2 Filed 08/14/09 Page 6 of 6 Potomac, MD 20854 Michael Fitzgerald 11 Pineridge Road Wilmington, MA 01887 Michael Manzi Law Office of Michael Manzi 59 Jackson Street Lawrence, MA 01840 Paul A. Shneyer Shneyer & Associates Ltd. 1991 Broadway OFC 2 New York, NY 10023-5828 Steven Karol Karol & Karol 424 Adams Street Milton, Ma 02186 Yevgeniya Shnayder 31 Star Road Newton, MA 02465 5

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