A Boston University student sued by the RIAA for copyright infringement has joined the chorus raising concerns about the legality of MediaSentry's investigations. Late last month, one of the Does in Arista Records v. Does 1-21 submitted a supplemental filing supporting his or her quest to prevent the RIAA from learning the identities of the Does.

According to the filing, the state of Massachusetts issued a cease-and-desist order to MediaSentry for "conducting private investigations of the students" without the appropriate license. The unnamed student is asking the court to look into the matter further before allowing any evidence collected by the company to be considered.

As we've noted before, the role of MediaSentry is crucial in the RIAA's legal campaign. The company is responsible for hunting down P2P users, downloading a handful of songs, and taking screenshots of the contents of their shared folders. That information is then used as the basis for the John Doe lawsuits used by the RIAA to obtain the names and addresses of ISP subscribers.

The legality of MediaSentry's actions has recently come under scrutiny in Lava Records v. Rolando Amurao, where the defendant has accused the RIAA's investigators of operating as a private investigator without a license. As is the case with the Boston University Doe, Amurao's attorney is asking that the evidence collected by MediaSentry be thrown out, which would undercut the RIAA's case. The RIAA has since filed a motion to dismiss the case with prejudice, presumably so that it can file a new copyright infringement lawsuit against Amurao's adult daughter, Audrey Amurao.

The RIAA referred Ars to SafeNet, MediaSentry's corporate parent, but an RIAA spokesperson did say that the group's belief is that MediaSentry is not an "investigator" under the statute in question. SafeNet has not yet responded to our requests for comment.

The Boston University Does received a bit of unexpected support from the Electronic Frontier Foundation. Yesterday, the EFF submitted an amicus brief supporting the Does' motion to quash. In the brief, the EFF raises issues that have been highlighted in other cases, including the RIAA's boilerplate complaints and the RIAA's argument that making a song available over a P2P network constitutes distribution under the Copyright Act.

During the Jammie Thomas trial, Judge Michael Davis ruled that the record labels need not demonstrate that actual distribution took place. Instead, the presence of copyrighted music in Thomas' shared folder was enough to constitute distribution. That ruling was arguably a significant factor in the $222,000 verdict against Thomas. The question of whether making available equals distribution has also been raised in Elektra v. Barker and Warner v. Cassin.

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