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RIAA Receives Stern Letter, Folds
NewYorkCountryLawyer writes "In SONY BMG v. Merchant, in California, the defendant's lawyer wrote the RIAA a rather stern letter recounting how weak the RIAA's evidence is, referring to the deposition of the RIAA's expert witness (see Slashdot commentary), and threatening a malicious prosecution lawsuit. The very same day the RIAA put its tail between its legs and dropped the case, filing a Notice of Voluntary Dismissal. About an hour earlier NYCL had termed the letter a 'model letter'; maybe he was right."
I'm not aware of them ever having won a fully contested case.
Ray Beckerman +5 Insightful
The 'model letter' said "we will expect your clients to be prepared to dismiss all claims with prejudice. The pleadings may be e-filed from my office the same day. Although dismissal will not avoid your clients' exposure to attorneys' fees". What the RIAA has filed here is a notice of voluntary dismissal 'without prejudice'. This is not the same thing at all.
IANAL, so I turn to wikipedia:
"In law, the phrase without prejudice means that a claim, lawsuit, or proceeding has been brought to a temporary end but that no legal rights or privileges have been determined, waived, or lost by the result. For example, if a party brings a lawsuit in small claims court but discovers that the claim is greater than the amount for that court to have jurisdiction, the lawsuit can be dismissed "without prejudice". This means that the dismissal is no bar to bringing a new lawsuit in a court that does have jurisdiction.
By contrast with prejudice means that a party's legal rights have in fact been determined and lost. To continue the same example, if instead the court had jurisdiction, but the plaintiff did not appear for the trial, the court would dismiss the case "with prejudice". That dismissal is a judgment against the plaintiff "on the merits" of the case, and extinguishes the claim that was being sued over. However, this does not prevent an appeal or a trial de novo if ordered by a higher court."
In other words the RIAA are reserving the right to sue again. Anyone know what happens about fees in the 'without prejudice' case?
1. They were smacked down by this outstanding Visalia, CA, lawyer, whose letter will become a model for lawyers all across the country.
2. They made our country an international laughing stock as they viciously fought to take a face-to-face deposition of a 10-year-old child in Atlantic v. Andersen, invoking revulsion and derision towards our justice system in places like Germany, Spain, France, Italy, Poland, Czechoslovakia, Norway, and Israel.
3.They were smacked down by the judge in that case who intervened to prevent them from getting it.
4. They were smacked down by the University of Maine, which followed the University of Wisconsin in refusing to act as the RIAA's collection agent.
5.Under court order they turned over their attorneys billing records in Capitol v. Foster to their adversary.
And this is only Tuesday.
Ray Beckerman +5 Insightful
No, he's saying that the RIAA is bringing some cases without sufficient evidence in an attempt to make the laws look weak and get Congress to beef up the laws. He didn't mention anything about helpless people, indeed TFA (you might care to read it, after which you probably want to sue the submitter for representing himself as you, as if it had been you you'd have read it) is about someone who was clearly not helpless.
Czechoslovakia no longer exists. It's split into Czech Republic and Slovakia. :)
I don't understand why it's necessary to offer a copy of their hard disk to the RIAA representatives as evidence of innocence. If they're essentially accusing pseudo-random people of piracy, then isn't the onus on them to prove it? (I realise that in civil cases it's balance of probability, but even so...)
Did you read the part of the letter stating the conditions for the inspection? They even offered to provide the RIAA technicians a plane ride and a ride to a local computer store to buy a hard drive which has never been formatted. The letter is very much a we know there is nothing to find, come see for yourself, but, you don't get to surf the drive unattended. It will be under our direct supervision. It implies any exposure of data unrelated to the case will be a direct liability to the RIAA.
This move alone may prevent a fishing expedition to see if the defendant has more than one computer, if any of the defendant's family have computers, etc. By up front offering an inspection, and setting limits to what can be found, may shield family members from exposure.
My network neighborhood data would be off limits. My Documents and My Music are fair game for music files ONLY included deleted files. The program directory is limited to evidence of file sharing programs ONLY. (I'm making assumptions based on the limitations imposed by the offer of a drive inspection.)
The truth shall set you free!
In the US there is a big difference between civil and criminal cases. in a civil case they just sue.. in a criminal case they would actually need evidence, probable cause or to get a warrant to get the evidence, by the time they got done there would be a real case or they would drop the thing. you rarely see criminal cases of a technical nature charged with the lack of evidence as the riaa does.
If the majority of people could fight the suits im sure they would spend more time on evidence and building a reasonable case, until then enjoy reading about the mafiaa on slash dot.
s/©//g
A little bit of googling, I found this organization (hint, look at the bottom picture)
http://workforcechaplaincy.org/_wsn/page3.html
from his website http://ledfordlaw.net/
"Merl Ledford III received his AB Degree in 1974 from University of California Santa Barbara with majors in English and economics."
Something tells me, he's the model lawyer RIAA wants to avoid at all cost. Speaking of tactics, he spread his response with cards stacking against RIAA such as motion to move the case to the Fresno Branch and building up the case to defeat the cost benefit by RIAA.
[excerpt] "We should also discuss how quickly you can get your tech people here to do their hard drive inspection. Again, I would be happy to send the airplane to either Butler at SFO or Kaiser at Oakland for roundtrip convenience of you and your clients' tech people."
Just priceless!
"Don't let fools fool you. They are the clever ones."
Try Google...I tossed "thin skulled client" and got back a lot of results. After reading parts of them, I think the following is a very good description:
The "thin skulled plaintiff" principle indicates that you must take a person as you find them, even if they are particularly susceptible to a particular harm.
4. They were smacked down by the University of Maine [blogspot.com], which followed the University of Wisconsin [slashdot.org] in refusing to act as the RIAA's collection agent.
:/
This sounds nice, Mr. Beckerman, but I'm a student at UMO and an IT monkey to boot. They didn't give the letters to the students, but they e-mailed and phoned all of the charged students and said "if you want them, you can come pick them up right here."
And my bosses, unfortunately, think it's a smart idea to keep static IPs for every student, and keep easy-to-access records for them (if you don't believe me, do a reverse DNS on 130.111.241.53). It sounds a lot nicer than it really is.
"You can either have software quality or you can have pointer arithmetic, but you cannot have both at the same time."
Plaintiff can't drop the case without defendant's consent after defendant's filed any response to the complaint. That's the point at which defendant's officially begun to incur costs. Up until then plaintiff can decide they made a mistake, after that they're on the hook.
In this particular case, I have this image of the RIAA lawyers scurrying in a panic to get their voluntary dismissal to the courthouse before the target's lawyer decides to officially file a response.
Yes the RIAA is acting illegally, and has even committed perjury, but getting the defendants compensated for that will be very difficult.
Ray Beckerman +5 Insightful
Second, RTFA: The authorized settlement offer expressed in the preceding paragraphs of this email (and confirmed in staff-proofed letter format to be sent by fax and US Mail tomorrow; sorry for typos that are an unfortunate part of any quick-response email) He appears to be saying he sat down and hammered this thing out before lunch, making it all the more impressive. That's a damn fine amount of case law to have memorized. In any case, I find the letter to be very well written. If you're put off by the lack of bloviating and douchey legalese that seems to dominate the genre, well that has a simple explanation: the guy's not a douche.
I think there is a world market for maybe five personal web logs.
You clearly don't know what you're talking about, and I'm not even a lawyer.
1) Investigators in civil cases do not have police like powers. If they ask for evidence and the other party refuses, they must file a Motion to Compel, which is asking THE COURT to force the hand-over of evidence. This is done precisely because they LACK THIS POWER.
2) The RIAA never asked for this hard drive, it was offered by the defendant before discovery in the case had even begun, which would be the appropriate time for the RIAA to ask for the hard drive.
3) Enron is an entirely different story. No one is saying Enron was in the right. However, Enron was under no obligation to turn over those documents the instant a lawsuit was filed whatsoever. It is the same here. An Answer hadn't even been filed yet in this case! Do you know ANYTHING about the legal process at all?
The Defendant offered the hard drive before filing an answer so that the RIAA would back off. They were under absolutely no obligation to do so. The parent poster was asking why they had to do this (incorrectly assuming that they had to, rather than that they chose to do so), and you proceeded to spew some of the most legally incorrect crap I have ever seen in my life.
Your post was so idiotic I felt it was worth it to undo all of my moderations on this discussion to respond to you. Cheers!
From the letter:
I especially like the bit about sending the airplane - always offer to run up the costs - especially when you want to show that you believe that you have an open and shut case! Of course, it doesn't hurt to also show that you know the likely principals in the case from previous dealings. I like this attorney!
He's saying that the settlement from his client's countersuit would be somewhere between $500k and say $1.5 mil.
He's being cute about it.
HBI's Law: Frequency of calling others Nazis is directly correlated with the likelihood of the accuser being Communist.
>Now everyone that receives a $3000 settlement letter from the MAFIAA can just reply and get the case thrown out?
Well, in the case, the response is a very specific address warning the plaintiff's attorney of the deficiency of his evidence and of other procedural problems that will prevent his bringing his case to court. Separate, is that he knows exactly how to seek relief for malicious litigation in his state, and warns that he is likely enough to be successful, that a half-million dollar or higher settlement paid to his clients would be a realistic potential outcome of going forward with their weak case. Whether he could really make this happen or whether he is bluffing, is hard to say. But I suspect he is not bluffing at all, and I further suspect that he is entirely capable of nailing the plaintiff to the floor and that his clients can afford to do it just for fun. (I think the main thing to note is that the defendant here is a wealthy Californian who can do this just for the pleasure of making someone squirm.)
-fb Everything not expressly forbidden is now mandatory.
You don't hear lawyers cite settlements in court, the cite case law which means cases that the court decided. After all a settlement just means that two parties came to an agreement, has nothing to do with what the actual law might be. You can threaten to sue me for breathing and, though you'd never win in court, I can still choose to settle with you beforehand. I would be stupid to do so, but I can if I want. Doesn't mean a court will give that any weight.
Please note that the following artists revenue is helping to fund this action by Sony BMG and the RIAA:
Good Charlotte
Shakira
Avril Lavigne
Christina Aguilera
Pink
Justin Timberlake
Evanescence
By buying anything from these or any other Sony BMG artist, you are helping to fund these lawsuits. Please stop!
One such "pirate handshake" has already been implemented, actually, though not directly into P2P-clients to my knowledge.
It's called Monolith, and it's basically about merging two copyrighted files, so for the RIAA to claim infringement it must also claim ownership of the other copyrighted file, one that it does not neccesarily own.
http://monolith.sourceforge.net/
Actually, what he suggested is that it could be moved "by stipulation and order" and then withdrawn. I take that to mean that both sides mutually agree that the case is moved, and the court orders it so. The issue of whether to withdraw would be handled afterwards, through the new court.
He was just taking an opportunity to point out a few other things they'd done wrong and offer "friendly" advice on how to fix it. If they actually intended to withdraw (with or without prejudice) there'd be little point in stipulating to the change of jurisdiction first, which I think Ledford knows-- he's just pointing out that not only were they ill-prepared to win, but that they were also procedurally deficient as well.
One problem: judges and juries don't seem to give a crap about the technical side of things. As far as the courts seem to care, the RIAA does not download the files, rather it merely snoops the IP address swarm. Sure, technically they do download part of the file, but if copyright law was that technical, wouldn't copying web pages into cache be illegal?
You know, there is a difference between trolling and pointing out the flaws in your reasoning. Just saying.