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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.
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?
From the letter:
Your clients apparently argue that Mr. Merchant's failure to respond to "settlement" demands justifies their lawsuit without other basis on which a finding of probable cause to sue could be claimed. You devoted the bulk of your letter advocating that position. As you know, however, that posture is repugnant to both Rule 408, Fed.Rul.Evid. and California Evidence Code 1152 and 1154.
The Evidence Code sections are quite clear: settlement negotiations of all kinds may not be used to prove the validity of any claim or defense. 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. If your client (and your law firm?) are seeking probable cause shelter in a settlement negotiations house of straw (as suggested by your March 23 letter), all of you should consider the prevailing winds of the Evidence Code before making yourselves too comfortable. Straw will burn.
Your client (sic) take the position that my middle-aged, conservative clients should speculate regarding the identity of persons your clients' claim used their AOL account to download pornographic-lyric gangsta rap tracks as predicate to possible case resolution. In an age of Wintel-virus created bot-farms, spoofs, and easily cracked WEP encrypted wireless home networks (among other easy hacks), the only tech-savvy response to such a request is, "You've got to be kidding." The extensive press that has been generated over computer security (and the insecurity of Windows XP and its predecessors) underscores the complete absence of facts on which probable cause to sue my clients could be established and your clients' willingness (even insistence) that others be implicated in Big Music's speculative, "driftnet" litigation tactics. Sorry: Mr. Merchant cannot and will not expose himself to still more litigation by speculating.
That's a whole lot of ownage right there.
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PGP Key ID 0xCB8FF658
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, 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...
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."
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'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: