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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."
The RIAA are doing these lawsuits with terrible evidence to show that they are not "sufficiently protected" by civil law. This can only help them as they continue to lobby congress for new criminal copyright infringement laws.
How we know is more important than what we know.
What happened here was that the RIAA saw a lawyer who not only knew of the RIAA's tactics, but also knew of how little evidence they actually had. Instead of potentially conceding a loss in court that could be used against them in the future, they withdrew their case to avoid a negative stroke on their record. One of the biggest weapons against them right now is to point out prior losses, while one of theirs is to point out prior success in these cases. The more success they have, the more ammunition they have. The more loss they endure, the more ammunition the defendants are given.
Screw the rules, I have green hair!
People theorize the RIAA go after college students, etc. because they know they can't afford to go through a costly trial. However, would it not possibly cheaper just to hire a lawyer pretty much JUST to write you a letter such as this (Adapted to your state and your circumstance), and mail it? If it doesn't work, then the amount you wasted on trying that is still insignificant in comparison to the amount you could possibly save.
Well, if anything, this is one strong ad for the law firm. He ties together the CA-storm-on-the-horizon RICO, the MediaSecurity fallibility, the driftnet "Smith"-style instigations, and various CA anti-SLAPP and Rule 408 sentiment. Nicely done sir.
The RIAA will change nothing with this. However, they are going find folks spending the money (above and beyond settlement) to get press and dismissals, if possible. I believe the tide is turned.
One thing I notice is that the *AA organizations have shifted the tactics of the warfare against the public domain. They seem to have increased pressure sharply for new laws in poorer countries via international bodies for protection of the so-called "intellectual property" rights, and direct pressure from the US representatives in those countries. Legislators are also lobbied (read bought) to pass such legislation; and lobbying in such countries is still way cheaper than lobbying in the US.
;)
The end result is that more and more countries (especially countries where the electorate isn't particularly sensitive about the _laws_ that govern copyright and related rights -- as they aren't enforced much) not only pass draconian laws with stiff penalties, but use more and more the "intellectual property rights" language, and that may lead to a funny situation in which most of the world outside the US will match, or overdo US; at which point the *AA industry will possibly make the claim that this is "the state of art", and move on to further limits rights in the US.
So, while this development is good, there is still more to come on the copyright front
That letter was fucking awesome! I love a good fight, but that was just a plain freaking knockout.
"My immediate reaction is "WTF? What kind of moron doesn't make things 64-bit safe to begin with?" Linus
imo the best bit is actually split into two places in the letter. first theres this part:
'Mr. Merchant has and had no more duty to respond to attempts to "sell" him one of your clients' boilerplate, non-negotiable $3750 settlements than he has to return cold calls from pushy life insurance salespeople.'
this is followed later by:
'My clients are willing to accept dismissal of the litigation in exchange for
1. Payment of Mr. Merchant's reasonable fees and costs including retainer of $6,880.25. The payment represents good value considering what your own firm's billings will have been to date and use of those billing records as the loadstar rate for Mr. Merchant's award. See Capitol Record v. Foster, Western Dist. Okla No. 5:04-cv-1569-W, Docment 182 filed 3-15-07).'
you gotta love how it says they wont pay the riaa's protection money..., and then asks the riaa to pay them twice as much.
You shall know him by his Sig
Would you prefer it was a criminal matter? The police knock on your door, show you a warrant, take your whole computer and take you downtown for booking. Then, in maybe 2 years time, you go to court with your state appointed lawyer and, if you get off, you might get your obsolete computer back.
How we know is more important than what we know.
What about their past actions leads you to believe the RIAA is above planting mp3s on a harddrive?
Finkployd
In the real world a lawyer has to try to get the case shut down at the earliest possible juncture. There is no guarantee of getting attorneys fees later. The idea is to win, and win as fast as possible. Mr. Ledford did the right thing. And accomplished a great result.
Ray Beckerman +5 Insightful
You win some, you lose some.
Posters here respond to the handful of stories that show the rights' agencies at their most vulnerable. But there is no running tally of the thousands - tens of thousands - of settlements which are paid out without much argument or fuss.
You may learn how to win your case here - but you won't learn how to lose your case here.
You might find a lawyer willing to chance an aggressive - and costly defense.
You might be willing to commit to two years of litigation. You might become the next poster child for the EFF. You might recover your costs. You might win the tri-state lottery.
More likely you will resign yourself to a schedule of monthly payments and a diet of mac and cheese. Only 1% of federal civil cases end a bench or jury verdict - which means you can forget about jury nullification. You will never get that far.
The bottom line is that if you bring suit against someone else, you should be prepared to get your ass handed to you. You should not be allowed to simply drop the suit once you initiate it. If the defendant is willing to fight it to the end, then they should have that option.
Maybe this would make it harder to bring suit against a well-financed opponent. So be it. A suit brought against a well-financed opponent is just as unjust as one brought against a poorly financed one if the suit itself has little merit.
The problem of bankrupting either side through the lawsuit is a completely separate issue that also needs to be addressed, of course, and as far as I'm concerned the maximum amount of damage should be limited to some large percentage of the total assets of the entity in question (for a corporation, those assets should include the total assets of all direct and indirect owners). That goes for plaintiff and defendant, of course. So if the plaintiff elects to drop the suit after having hit that limit, only then should doing so not require the assent of the defendant.
The system as it stands right now is inexcusable.
Use 'slashdot stuff' in the subject line in any email you send me if you want to get past the spam filter.
It saddens me that the state of legal writing is such that this could be considered a "model" letter. I also find it funny[0] that the defense counsel is offering a settlement in exchange for a dismissal before he has even filed an answer, let alone a countersuit. What exactly is he offering to settle? And what kind of attorney finds it necessary to insult the opposing party in a settlement offer?
[0]Not funny as in haha, funny as in ethically questionable.
Si vis pacem, para bellum
The only thing more annoying than a Libertarian is an (un|mis)informed Libertarian
NEVER go into court without at least consulting a lawyer. Even if you think all the evidence is in your favor, you could get procedurally out maneuvered.
I never said I was smart, I just said I was smarter than you
Here is an attorney who not only is familiar with and sees through the RIAA's shotgun tactics, and even refers to them as such in his draft, he is admonishing the opposing counsel in beautifully crafted language. While the written words offer to assist said counsel in resolving a filing mistake, a very clear and very different message is conveyed. Mr. Ledford has just told the RIAA to go fuck their collective selves, and he appears to have the case law to back it up (IANAL, and I'm definitely not licensed to practice in California, so that is only my interpretation). He knows he's right, he knows that the RIAA is not willing to appear in court for a showdown after the issues that he's cited - inappropriate venue, lack of probable cause, history of discredited experts, etc. - and he's finally revealed himself as the man with the balls to make the play.
The entire missive can be summed up from a geek's standpoint in eleven characters: "YHBT. HAND."
I don't know whether or not the Merchant family has actually fronted $6,880.25 for the research that culminated in this letter, and I suspect that either settlement or judgement will negate the fees, but those dollars are worth their weight in gold. I've followed the entire RIAA spectacle with mildly detached interest since they first started filing lawsuits, and to be quite frank, this is the most damning coffin-nail yet.
A model letter, indeed.
Thanks to the War on Drugs, it's easier to buy meth than it is to buy cold medicine!
You're right he's getting a rich guy out of trouble.
He's also making it simpler for those of lesser standing to take the same course. He made it abundantly clear that there was lots of money available to throw at the case, but he also made this letter public. The letter itself is clearly based on more than just "money" it's based on what someone with money would spend to fight this case, which is based solely on the legal merit of the case, otherwise the settlement would have been paid or the letter would have been more humble.
I agree it sucks that a good lawyer costs an arm and a leg. At the same time I'm sure some lawyers enjoy it when they get to affect real justice. Sometimes legal theory works and for that Mr. Merl Ledford III deserves his kudos.
Under the influence of Post-Cyberpunk Gonzo Journalism
Enron is(was?) a publicly traded entity. It's documentation should exist under different rules. A private individual should not be obligated to answer to anyone.
What?
It's my impression that "insulting" the antagonist law firm and calling into question the competency of the lawyer, their supervisor and indeed their firm is the legal equivalent of sabre-rattling and leering. It is an attempt to encourage capitualation by indicating that you are bigger, tougher and are capable of polysyllabillic utterances. Fear the polysyllabilic utterances.
Just like everywhere else in the realm of human interaction, disagreements are settled first by pissing contests, then (if noone concedes) coming to blows.
I'm amused that the defendant's lawyer gave the RIAA so many reason to call off the litigation. First, there is no evidence, second they're suing somone in severe emotional distress (the "thin skull plaintiff"), third they're filing in the wrong court, fourth they have not properly followed up their attempts to contact the defendant, and fifth there's the offer for the defendant to withdraw from a pending class-action suit against the plaintiff. How sweet and caring.
This was some very entertaining reading. Thankyou.
If there was ever an example of the bully syndrome at work, this would seem to be it.
The higher the technology, the sharper that two-edged sword.
>What does that mean? what is it that's "a mid-six to low seven figure piece of computer gear"?
It means he would be perfectly happy to document that the cost of professional data forensics suitable for litigation purposes, particularly for evidence that may be required for a federal case are quite high, and if the plaintiff's experts show up with no case, they will be paying this bill.
-fb Everything not expressly forbidden is now mandatory.
"Then they'll try to draft something saying that any end-user of an ISP account is liable for all copyright infringement that goes on through it, including that of 3rd parties and minors."
I should think that would be quite amusing and short-lived. You could just go trolling for unsecured wireless networks in the rich area of town, and download to your heart's content. The RIAA would either never sue, or sue and get bitchslapped by people with lawyers as expensive as the RIAA has.
You have tried to support your argument with faulty reasoning! Go directly to jail; do not pass Go, do not collect $200!
Wikipedia appears to me to be the most unbiased and reliable source of information on the internet. I suppose we should Google it instead then sift through the tidal wave of crappy results for reliable information rather than turn to a source that provides well-written and generally expert-written, fairly unbiased articles on the exact topic we want. Not to mention that Wikipedia, combined with the usually provided footnotes and references, combined with a bit of additional searching on anything that sounds outrageous ar doesn't make sense will provide excellent results. I begin every search for information with a trip to Wikipedia to get a summary of information for continued research. Sorry about the rant, mod -1 Offtopic . . .
unfortunately, all this means is that your client will be incompatible with the GPL, and the FSF will clean-room the whole thing in order to make a free version =/
being vague is almost as cool as doing that other thing...
OT for the main thread, but I studied bullies a bit.
..." They hate spending the day thinking about it. It comes back to them each time they bully someone. In the best case they realize their problems and leave others alone.
;)
I must agree with Denoir. In my experience bullies are not cowards, except for being under the submission of another bully themselves, usually an abusive parent.
It's true that facing them only mean that next time they will leave you alone, but they continue their bullying ways.
As for them running at first blood, this is actually rare and highly dependent on the bully's stamina. When you get beaten by your drunken dad 3 times a week, you can take a fairly good beat in the schoolyard without really caring.
When I realized that, (thru a friend after his dad broke his arm in a drunken rage) I found out that most bullies can be dealt with by carefully chosen phrases about their personal and family problems. "Your dad beats you and you take that on others? No? What is it then?
Now to stay on topic.
- Who is RIAA's bullies? Stockholders.
- Key phrase to use in the fight: "Your stockholders beat you in the boardroom?" "Your sales are down so you get back on a 10 year old?"
OK, not very effective in the courtroom