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RIAA Receives Stern Letter, Folds
Posted by
kdawson
on Tue Mar 27, 2007 08:30 PM
from the turning-tide dept.
from the turning-tide dept.
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."
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Technology: RIAA's 'Expert' Witness Testimony Now Online 512 comments
NewYorkCountryLawyer writes "The online community now has an opportunity to see the fruits of its labor. Back in December, the Slashdot ('What Questions Would You Ask an RIAA Expert?') and Groklaw ('Another Lawyer Would Like to Pick Your Brain, Please') communities were asked for their input on possible questions to pose to the RIAA's 'expert'. Dr. Doug Jacobson of Iowa State University, was scheduled to be deposed in February in UMG v. Lindor, for the first time in any RIAA case. Ms. Lindor's lawyers were flooded with about 1400 responses. The deposition of Dr. Jacobson went forward on February 23, 2007, and the transcript is now available online (pdf) (ascii). Ray Beckerman, one of Ms. Lindor's attorneys, had this comment: 'We are deeply grateful to the community for reviewing our request, for giving us thoughts and ideas, and for reviewing other readers' responses. Now I ask the tech community to review this all-important transcript, and bear witness to the shoddy investigation and junk science upon which the RIAA has based its litigation war against the people. The computer scientists among you will be astounded that the RIAA has been permitted to burden our court system with cases based upon such arrant and careless nonsense.'"
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itsatrap (Score:5, Insightful)
Re:itsatrap (Score:5, Insightful)
I respectfully disagree.
Parent
Re:itsatrap (Score:5, Interesting)
Parent
That's not what they'll win Congress with, no... (Score:5, Interesting)
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...
Parent
Re:That's not what they'll win Congress with, no.. (Score:5, Interesting)
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:
Parent
Re:itsatrap (Score:5, Insightful)
Their reputation in Congress will not go down because of these civil suits. They have enough of Congress on the payroll that reputation doesn't matter.
Parent
Re:itsatrap (Score:5, Interesting)
Listen to what I'm saying:
Fatalism like that is the trap.
I'm too busy working and fighting for what I believe in to sit around wondering how the war between the good guys and the bad guys will all play out in the end.
The only thing I know about the future is that I will die one day, and when I reach that day, it will not matter to me what the final score is, but it will matter to me a lot (a) which team I was on, and (b) whether I was playing my best, or whether I'd taken myself out of the game.
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Re:itsatrap (Score:5, Funny)
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Re:itsatrap (Score:4, Funny)
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Re:itsatrap (Score:5, Insightful)
Warner Music Group is #542 in the Fortune 1000 [cnn.com]. The rest of the big four [wikipedia.org] are either totally foreign (e.g. EMI, based in London), or owned by foreign companies (e.g. Sony BMG and Universal Music Group).
Besides, we already have the No Electronic Theft (NET) Act [wikipedia.org], and I can't recall any P2P prosecutions based on it. I'm not too surprised either, given that the authorities likely have bigger problems to tackle, and the standard of proof is much high in a criminal case ("beyond a reasonable doubt"). The RIAA is already having trouble proving their cases with the lower, civil standard.
Parent
Re:itsatrap (Score:5, Insightful)
I like analogies, so here's a colorful one for everyone: The RIAA is like the schoolyard bully. Either you give him your lunch money and go without food for a day, or you take a chance and try to pound him into submission, but you'll get beat up pretty bad too, and if you lose you'll have to pay anyway.
Parent
Re:itsatrap (Score:5, Insightful)
I disagree with your outlook.
Here is mine.
Rule Number 1: All bullies are also cowards.
Rule Number 2: The only way to stop bullies is to beat them.
Rule Number 3: When you draw blood they run away because of Rule Number 1.
Parent
Re:itsatrap (Score:5, Interesting)
I think that very much applies to RIAA. If in general a 'stern letter' would be enough to get them to back off then they would lose all their power of intimidation and thus their whole business.
Parent
Re:itsatrap (Score:5, Insightful)
Only problem is that it turns into 'reasoable doubt' by a jury to get a conviction, a much harder task then in civil cases.
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Re:All about the money (Score:5, Interesting)
Making such a motion for 10 people would be almost exactly the same amount of work as making one for 1 person.
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Re:All about the money (Score:5, Insightful)
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MAFIAA (Score:5, Funny)
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.
Who is Stern? (Score:4, Funny)
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Transcript from the lawyer's office (Score:5, Funny)
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... (Score:5, Insightful)
Re:What happened here... (Score:5, Informative)
I'm not aware of them ever having won a fully contested case.
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Settlements don't make precedence (Score:5, Informative)
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Re:What happened here... (Score:5, Insightful)
What matters is can it hold up under appeal? The RIAA doe not want to let an appelate or SCOTUS decicion go against them. Then it affects all cases. They are choosing their battles carefully.
Parent
hang on - *without* prejudice? (Score:5, Informative)
IANAL, so I turn to wikipedia [wikipedia.org]:
"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?
Re:hang on - *without* prejudice? (Score:5, Informative)
If the defendant moves for attorneys fees, I will post that on my blog.
Parent
Re:hang on - *without* prejudice? (Score:5, Insightful)
Parent
Re:hang on - *without* prejudice? (Score:4, Informative)
On the other hand, legal writing quality has decreased significantly. It used to be that you could say to a secretary "type a letter about X" and you'd have one. Now you have to stand there and dictate "Dear sir comma I have recieved your letter of the twenty third comma and also acknowledge receipt of your letter of the twenty second period. New paragraph. Please be advised comma..."
Ah, for the good old days of honorable lawyers and competent legal secretaries...
Parent
Re:hang on - *without* prejudice? (Score:5, Informative)
If you were in his client's shoes, you would be grateful.
Give the guy credit for a job well done.
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Re:hang on - *without* prejudice? (Score:5, Interesting)
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Re:hang on - *without* prejudice? (Score:5, Informative)
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Amazingly direct (Score:4, Interesting)
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.
Awesome lawyer (Score:5, Interesting)
Re:Awesome lawyer (Score:5, Interesting)
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.
Parent
Re:Awesome lawyer (Score:4, Insightful)
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.
Parent
Re:Awesome lawyer (Score:5, Informative)
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 [blogspot.com] in Atlantic v. Andersen [blogspot.com], 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 [blogspot.com]who intervened to prevent them from getting it.
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.
5.Under court order [slashdot.org] they turned over their attorneys billing records in Capitol v. Foster [blogspot.com] to their adversary.
And this is only Tuesday.
Parent
Re:Awesome lawyer (Score:5, Informative)
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.
Parent
clone of hard disk as evidence (Score:4, Interesting)
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...)
Why can't they just say: "I'm innocent, and you have no evidence - bugger off" (or words to that effect)?
Re:clone of hard disk as evidence (Score:5, Informative)
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.)
Parent
Re:clone of hard disk as evidence (Score:5, Informative)
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!
Parent
Your Hired (Score:4, Insightful)
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.
damn straight, this is a model defense !! (Score:5, Funny)
"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."
FYI - About Merl Ledford III from California (Score:5, Informative)
http://workforcechaplaincy.org/_wsn/page3.html [workforcechaplaincy.org]
from his website http://ledfordlaw.net/ [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!
Artists involved in this action (Score:5, Informative)
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!
Re:The silver bullet? (Score:4, 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.
Parent
Re:The silver bullet? (Score:5, Interesting)
2. I'm not aware of a single case having gone to trial.
Parent
Re:Yay (Score:4, 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.
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Re:Yay (Score:4, Informative)
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Re:Plaintiff should not be allowed to drop the cas (Score:5, Informative)
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.
Parent
Re:Model letter grammar (Score:5, Informative)
Second, RTFA:
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Re:Ohhh snap. My favorite part. (Score:4, Interesting)
Procedurally, we need to address how best to move the case to the Fresno Branch so you can enjoy our new Courthouse and avoid Judge Levi's wrath for filing in the wrong court.
Read between the lines. The lawyer knows the judge personaly. The Lawyer implied the Judge dislikes mistakes and maybe dislikes dirty tactics. The lawyer implied the judge will be quickly brought up on the technical holes in the case. If the RIAA proceeds the lawyer will drive an expensive SUV through the flaws in the case to show how big they are. The RIAA will be billed for the cost involved in providing the demonstration. There will be no getting away with BS in this case. All shakey data will be exposed for errors.
The laywer didn't need to say it, but it was implied loud and clear. They got the point.
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