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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.
The very same day the RIAA put its tail between its legs and dropped the case, filing a Notice of Voluntary Dismissal.
Maybe now they'll start resorting to more traditional methods for people in their business. Like severed horse heads at the foot of your bed.
The theory of relativity doesn't work right in Arkansas.
Secretary: Sir, this letter says no.
Lawyer #1: Excuse me? It says no what?
Secretary: It says no, they're not going to pay up, and that our evidence is weak.
Lawyer #2: Damn, they've got us on that one.
Lawyer #1: Time to give up I suppose.
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!
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?
The letter contains one zinger after another. It's well worth reading.
My precis: "You guys are a bunch of losers. You should know better. We used to respect your firm. If you don't drop this case, we're coming after you to claim damages 'cause you aren't allowed to bring frivolous cases and waste the court's time. Oh, yeah, pay our legal bills while you're at it. Sorry dudes, we realize that your client is a litigeous idiot and general bully but if you don't drop this case we're coming after you anyway. Capiche. Oh yeah, don't forget to pay our legal bills on the way out. Get lost."
The RIAA is truly amazing. The guy they're suing died and they're going after him anyway. Naturally the family is distraught. That makes them a "thin skulled client" or in other words, the family's lawyers are threatening to go after big damages if the case doesn't get dropped pronto.
Wow, that defense lawyer is awesome. Read his response, it's not only legally strong but _technically_ strong. He really did his homework. The RIAA has to be worried by that response, because it would apply to almost any of their lawsuits.
No, I fear that brib*cough* lobbying will help them with Congress. Which is why we have the Mickey Mouse copyright extension named after Bono, the worthless AHRA, the easily abused DMCA and the obnoxious NET Act, as well as whatever laws I haven't heard of yet.
:(
I expect they'll say something like "We lost so much money, damn pirates! Can you make them easier to catch?" 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.
Or something like that
Of course, that's when it'll be time to hack into their wireless networks and turn the law against them, personally, but I'm getting ahead of myself...
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!
translated to "street," it basically says
"Yo, Vinnie, youse working on your own here, and the CourtFather is VERY displeased with how youse is conducting yourself. And you didn't even ask to work this dock. The CourtFather is having a meeting with your Consigliore. Maybe youse should go home while you can."
if this is supposed to be a new economy, how come they still want my old fashioned money?
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."
1. The RIAA claims that there have been about 5000 settlements.
2. I'm not aware of a single case having gone to trial.
Ray Beckerman +5 Insightful
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.
Making such a motion for 10 people would be almost exactly the same amount of work as making one for 1 person.
Ray Beckerman +5 Insightful
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
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!
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!
You're absolutely correct that we need to turn the law against them, but the solution is not to hack their wireless networks. It's rather a change in the way our P2P programs work (or perhaps in the way infringing files are bundled), what one might call a "pirate handshake."
Here's the way it would work. The RIAA has to catch people red handed in order to make any sort of a case against them, which is easy to do because all they need to do is join the swarm and grab the infringing file from the unsuspecting mark (using BT as the example here because that's usually the way it goes down). Some people have often had the idea that there's something slightly shady about this because it means that in the process of downloading the file, the RIAA must also be uploading it to others, thereby becoming complicit in the distribution. Alas, there is no legal problem here, because one assumes the RIAA has been authorized by its members to distribute their materials in order to bust others. So you can't get them that way.
There is, however, a speck of useful logic there. The RIAA may be authorized to distribute its own crap over P2P networks, but it's certainly not authorized to distribute my crap. If it came to light that they had done so, assuming that I had a registered copyright on whatever it is that they distributed, I could file for damages against them. So one might have the idea to zip together every piece of infringing material with another piece of infringing material, where the second one is owned by someone that has no intention of suing the average user, but will drag the RIAA through the mud if it ever comes out that they passed the file around. We might call this a weak form of pirate handshake.
Weak, of course, because there are ways around it. The RIAA might just make sure to leech the whole file, thus avoiding any sort of redistribution, or perhaps they could figure out how to only distribute the pieces of the file that they have the rights to (not sure what this would mean in the case of a zip file - I think they're just encoded in a pretty simple way, so you may be able to localize one piece).
The strong form would be to build the handshake into the P2P client. I absolutely refuse to send any sort of data to you, other than the handshake request (which would probably be the very same file as the response), until you send me the copyrighted (but perfectly safe for anyone but the *AAs and their agents) file. Only once I recieve that file and check its contents to make sure that you have now infringed against this benevolent third party do I agree to send you even a single bit of whatever it is you wanted to download from me.
It is crucial that this copyrighted file be a third party's, offered without an explicit license to redistribute, by the way, and it must have some artistic value (to qualify for any copyright protection at all); if it was my own file or if the entire reason for its existence was to act as insurance against being taken to court for copyright violations, the courts might not decide to grant it copyright protection on the grounds that it's clear it's only out there to mess with their rules. I don't know if there's any legal precedent for doing this, but it seems like the type of thing that might offend a judge, and at some level, if you piss off a judge, you're screwed. Likewise if the file was offered with a license that granted, for instance, the right to redistribute as long as you are not using it to enforce copyright laws, the courts might take offense. The key would be to find an independent band or author that was sympathetic to the cause and get them to make a gentleman's agreement to:
I would attack the problem from the software stack end.
P2P Software license v0.1
You are free to use and distribute this software subject to the following provisions;
a You do not use the software to track, investigate or persue other users, legally or otherwise
b You are not associated or affiliated with the publishing industry in any way, shape or form, and do not act on their behalf.
c You do not assert copyright over any materials that may be transmitted by this software, nor act on the behest of others that do.
d you do not pass information about other users of this software or the network protocols employed to a third party, over and above the normal operation of the software.
e you agree to finance any and all legal fees of any user of this software, who is subjected to prosecution as a result of your use of the software over and above the normal functioning and behaviour of the software.
Let them write their own clients!!!!
- som
or they could spend the $500 on purchasing the cds instead of pirating... ;)
being vague is almost as cool as doing that other thing...