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RIAA Receives Stern Letter, Folds 382

Posted by kdawson
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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RIAA Receives Stern Letter, Folds

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  • itsatrap (Score:5, Insightful)

    by QuantumG (50515) <qg@biodome.org> on Tuesday March 27, 2007 @08:33PM (#18510383) Homepage Journal
    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.

    • Re:itsatrap (Score:5, Insightful)

      by NewYorkCountryLawyer (912032) * <ray.beckermanlegal@com> on Tuesday March 27, 2007 @08:45PM (#18510465) Homepage Journal
      You think the fact that they bring frivolous lawsuits against helpless people is going to help them with Congress?

      I respectfully disagree.

      • Re:itsatrap (Score:5, Interesting)

        by QuantumG (50515) <qg@biodome.org> on Tuesday March 27, 2007 @09:14PM (#18510619) Homepage Journal
        I just mean they will claim they can't collect sufficient evidence without the resources of the police.
      • by Anonymous Coward on Tuesday March 27, 2007 @09:16PM (#18510629)
        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...
        • "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.
        • by ClassMyAss (976281) on Wednesday March 28, 2007 @03:51AM (#18512763) Homepage

          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...

          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:

          1. Not sue anyone that wasn't distributing the file to catch copyright violators
          2. Sue the crap
          • Re: (Score:3, Informative)

            by Anonymous Coward
            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/ [sourceforge.net]
          • by sauron_of_mordor (931508) on Wednesday March 28, 2007 @05:53AM (#18513237)
            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

            • Re: (Score:3, Interesting)

              by MooUK (905450)
              You could also make it so that the client has built in ways of faking any and all data that could be used to prosecute people. If they then try to use it, you can simply demonstrate how simple it is to fake the evidence they are using with nothing more than the program they used to gather it.
            • Re: (Score:3, Insightful)

              by miro f (944325)
              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 =/
          • Re: (Score:3, Interesting)

            by devilspgd (652955) *

            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.

            Sure, but at the same time, if the RIAA is intentionally and willfully releasing th

      • Re: (Score:3, Funny)

        by Anonymous Coward
        I'm sorry, what part of "congress" don't you understand?

        congress (kng'grs)
        n. ...
        5. Sexual intercourse.

        (That's "getting fucked" for those of you following along at home.)
      • Re: (Score:3, Insightful)

        by finkployd (12902)
        You think congress cares about people?

        Finkployd
      • Re: (Score:3, Insightful)

        I respectfully contend that congress is firmly in the back pocket of US corporations. Since the recording industry comprises 5 of the largest 50 companies in the country, I would suspect that congress would side with the RIAA instead of "the people".

        In addition, they are clearly already willing to side against freedom in the name of prosecuting "suspected terrorists" when less than 10% of those brought up on terror related charges are ever convicted (no evidence, etc).

        Just a thought.

        Stew
        • Re:itsatrap (Score:5, Insightful)

          by supersat (639745) on Tuesday March 27, 2007 @10:13PM (#18510983)
          5 of the largest 50? According to what list?

          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.
        • Re:itsatrap (Score:5, Insightful)

          by billcopc (196330) <vrillco@yahoo.com> on Tuesday March 27, 2007 @10:43PM (#18511199) Homepage
          Congress doesn't need to side with anything. The RIAA doesn't win many lawsuits, it just threatens people into settling for $3750. It's very much a poker bluff, they have no hand to play (no evidence), but they intimidate the defendants into folding to "cut their losses". The fact that lawyers get paid even if they lose is a contributing factor to this abuse, as few people can afford to front the retainer even if they have a chance of winning their attorney fees back in the counter-claim.

          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.
          • Re:itsatrap (Score:5, Insightful)

            by NewYorkCountryLawyer (912032) * <ray.beckermanlegal@com> on Tuesday March 27, 2007 @11:02PM (#18511319) Homepage Journal
            The RIAA is absolutely a schoolyard bully.

            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.

            • Re:itsatrap (Score:5, Interesting)

              by denoir (960304) on Wednesday March 28, 2007 @02:27AM (#18512341)

              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.
              I would say that it is a myth. Bullies may be cowards but they have a very strong interest in not appearing as such. If you chase away a bully you have solved your own problem but the consequences for the bully are much graver - that they'll lose their position of power through fear. Without the fear they risk being attacked by every person they have mistreated and lose their power of intimidation. So in a single case a bully will usually go to extreme lengths to as publicly as possible demonstrate that he is not a coward and that he is willing to go much further than you are.

              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.

              • Re:itsatrap (Score:4, Insightful)

                by farker haiku (883529) on Wednesday March 28, 2007 @06:36AM (#18513409) Journal
                I would say that it is a myth. Bullies may be cowards but they have a very strong interest in not appearing as such. If you chase away a bully you have solved your own problem but the consequences for the bully are much graver - that they'll lose their position of power through fear. Without the fear they risk being attacked by every person they have mistreated and lose their power of intimidation. So in a single case a bully will usually go to extreme lengths to as publicly as possible demonstrate that he is not a coward and that he is willing to go much further than you are.

                Yeah, except that a malicious prosecution lawsuit is more than a bloody nose - it's legal precedent. That means instead of some kids seeing someone fight off the bully, the kid who fights off the bully gets to stain the ground with the bully's blood and forever after celebrate that day as "I defeated a bully day". The RIAA was probably hoping this one would go away... that's the best case scenerio for them.
      • Re:itsatrap (Score:5, Insightful)

        by Trailer Trash (60756) on Tuesday March 27, 2007 @11:37PM (#18511517) Homepage
        Listen to what these guys are saying, Mr. Beckerman. When the MPAA tried to push the "superdmca" bill here in TN, one of the most egregious provisions was that people who were caught with unauthorized devices connected to their cable service were *required* to be criminally prosecuted. That's the direction this stuff is going: make it a crime so that the government has to foot the bill for what should be a civil matter. These people are slime, as you know better than I do. They will stop at nothing.

        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.
        • Re:itsatrap (Score:5, Interesting)

          by NewYorkCountryLawyer (912032) * <ray.beckermanlegal@com> on Wednesday March 28, 2007 @10:16AM (#18515789) Homepage Journal

          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.

    • Re:itsatrap (Score:5, Insightful)

      by nurb432 (527695) on Tuesday March 27, 2007 @08:52PM (#18510503) Homepage Journal
      Right, and as soon as its a truely criminal issue, they have the resources of the government behind them. The entire concept of IP will be turned on its head.

      Only problem is that it turns into 'reasoable doubt' by a jury to get a conviction, a much harder task then in civil cases.
      • by QuantumG (50515)

        The entire concept of IP will be turned on its head.
        I sure hope you mean that in a good way.

        Why does it always have to get worse before it gets better?
    • 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.
  • MAFIAA (Score:5, Funny)

    by User 956 (568564) on Tuesday March 27, 2007 @08:34PM (#18510391) Homepage
    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.
  • by Anonymous Coward on Tuesday March 27, 2007 @08:34PM (#18510395)
    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.
    • Re: (Score:3, Funny)

      by cyphercell (843398)
      That was awesome, you should write comics for the newspaper. Wait a minute, you should do a site that does comics that coincide with slashdot stories. (sorry, I've been on ideastorm.com all day)
  • by Runefox (905204) on Tuesday March 27, 2007 @08:37PM (#18510419) Homepage
    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.
  • by Bazzargh (39195) on Tuesday March 27, 2007 @08:43PM (#18510451)
    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 [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?
    • Under the federal rules, before the defendant has answered, a plaintiff can withdraw its case "without prejudice". That's the law. The RIAA is out thousands of dollars on this case at this point.

      If the defendant moves for attorneys fees, I will post that on my blog.

      • Re: (Score:3, Interesting)

        by NormalVisual (565491)
        Under the federal rules, before the defendant has answered, a plaintiff can withdraw its case "without prejudice".

        I'm a bit confused - it seems to my non-lawyer self that it might have been more advantageous for the defense to have formally answered and thus committed the RIAA to a losing battle rather than what seemed to be (justified) taunts regarding the weakness of their case. Certainly it would have cost the defendant more up-front to continue the case, but I'd imagine those fees would ultimately
      • Re: (Score:3, Insightful)

        by monkeydo (173558)
        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.
        • by Atlantis-Rising (857278) on Tuesday March 27, 2007 @11:02PM (#18511313) Homepage
          At the law office I work at, I can tell you that at least in my opinion, it's fairly standard (the insulting the opposing party in a settlement offer... hell, in pretty much any letter.) It goes both ways.

          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... ;)
        • Since the purpose of the letter was to bring the suit to an end. And since the letter worked so well, bringing the litigation to an end within a matter of hours, I don't see the point in criticizing it. The letter did its job. A lawyer doesn't live in an ivory tower. He's there to get results for his client. Most letters accomplish nothing. Since this letter worked, it was, by definition, a good letter.

          If you were in his client's shoes, you would be grateful.

          Give the guy credit for a job well done.

          • Re: (Score:3, Insightful)

            by Grail (18233)
            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 conc
          • Worked so well? (Score:3, Interesting)

            by ArsenneLupin (766289)

            And since the letter worked so well, bringing the litigation to an end within a matter of hours, I don't see the point in criticizing it.

            Yes, indeed, the letter worked well. Problem: it was a tad expensive, and as MAFIAA settled without prejudice, Mr Merchant is still stuck with his own hefty legal bill of $6880.25.

            Which makes it not really a victory for Mr Merchant.

            And it doesn't set a bad precedent against the RIAA either: confronted with a choice between paying a settlement of $3750 or avoiding a settlement by paying your lawyer $6880.25, most "rational" people would probably chose the settlement. And that's all the RIAA needs.

            And it's n

            • Re: (Score:3, Interesting)

              by eclectic4 (665330)
              "And it doesn't set a bad precedent against the RIAA either: confronted with a choice between paying a settlement of $3750 or avoiding a settlement by paying your lawyer $6880.25, most "rational" people would probably chose the settlement. And that's all the RIAA needs."

              So, Mr. Merchant chose to pay 3 grand to force the RIAA to pay its own lawyers (not cheap!) and get nothing in return but a black eye. He had to have known this since he in fact didn't settle and went to court. He could have just paid it a
    • by MindStalker (22827) <mindstalker AT gmail DOT com> on Tuesday March 27, 2007 @09:19PM (#18510647) Journal
      Yep and this guy can choose to not accept the dropping without prejudice and file a counter-suit. His letter is saying he expects a dropping with prejudice if the RIAA doesn't want to rick a counter-suit. Sounds like they do.. Though most likely the RIAA doesn't know what they have gotten themselves into, and they certainly have never before dropped a claim with prejudice.
  • Costly Justice (Score:3, Interesting)

    by biocute (936687) on Tuesday March 27, 2007 @08:44PM (#18510461) Homepage
    While this is good news, it also shows that poor (or just normal) people cannot afford to seek justice easily.

    First of all, it probably costs a little bit to get a lawyer to compose an effective C&D letter to RIAA, secondly, it will cost a lot if an innocent person wants to meet RIAA in the court.

    So why can we bear arms to protect ourselves, but there is nothing to protect us from this kind of dirty tactics?
    • by iamacat (583406)
      First of all, it probably costs a little bit to get a lawyer to compose an effective C&D letter to RIAA

      Say what? Any moderately educated person can read the TFA and compose a similar letter with details adjusted to relate to their case. If you are NOT using P2P, you should also be able to win the case without a lawyer. Just hand over your original hard drive and ask them to show evidence of infringement. If you ARE pirating, I guess you do have to pay fine, lawyer fees or both.
      • Re: (Score:3, Insightful)

        by finkployd (12902)
        What about their past actions leads you to believe the RIAA is above planting mp3s on a harddrive?

        Finkployd
      • Very wrong (Score:3, Insightful)

        by Samari711 (521187)
        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.
    • Re: (Score:3, Insightful)

      by QuantumG (50515)
      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.
  • Amazingly direct (Score:4, Interesting)

    by Anonymous Coward on Tuesday March 27, 2007 @08:47PM (#18510475)
    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.
    • Interesting. I tossed this whole phrase into Yahoo.

      "We did not find results for: "thin skulled client". Try the suggestions below or type a new query above."
  • Awesome lawyer (Score:5, Interesting)

    by Hays (409837) on Tuesday March 27, 2007 @08:48PM (#18510483)
    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.
    • Re:Awesome lawyer (Score:5, Interesting)

      by Simon Garlick (104721) on Tuesday March 27, 2007 @09:05PM (#18510575)
      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.
      • Re:Awesome lawyer (Score:4, Insightful)

        by ShaunC (203807) * on Tuesday March 27, 2007 @10:45PM (#18511213)
        I concur, the letter is a work of art, even with its various typos. (I sort of wish that Mr. Ledford had waited for the staff-reviewed copy, and posted that, but the last thing I'm going to do is critique him at this point.) My favorite excerpt is as follows:

        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.
        You want pwnage, that's it.

        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.
        • Re: (Score:3, Interesting)

          by Splab (574204)
          While I do like that excerpt you posted, one that springs more to mind was this one:

          3. Execution of a mutual general release of all claims in my office's usual form. The RIAA form of release I have seen will not be used. It is my practice in these kinds of cases to require that the plaintiffs indemnity my clients against claims by third parties as part of my general release language. (E.g., your clients sue a site for posting guitar tabs to copyrighted music; my client visits the site, read the tabs, plays

    • Re:Awesome lawyer (Score:5, Informative)

      by NewYorkCountryLawyer (912032) * <ray.beckermanlegal@com> on Tuesday March 27, 2007 @09:07PM (#18510587) Homepage Journal
      Yes there are a bunch of things that happened during the last 24 hours that should have the RIAA worried.
      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.

      • by bataras (169548)
        Um I thought the RIAA voluntarily dismissed their case -before- this letter was sent (only hours before). Thus the letter was not the cause for the dimissal
      • Re: (Score:2, Informative)

        by Anonymous Coward
        Czechoslovakia no longer exists. It's split into Czech Republic and Slovakia. :)
      • Merl Ledford III is gonna ...

        (cue Rocky Balboa movie theme)

        "Hit 'em with the left, then he'll hit 'em with the right.
        It's a fight, it's a fight
        Head-Bust 'em, Head-Bust 'em." ... New Clients! ... Profits!

        P.S. Everyone look up Visalia, CA on the map now.
      • Re:Awesome lawyer (Score:5, Informative)

        by FishWithAHammer (957772) on Tuesday March 27, 2007 @10:46PM (#18511219)
        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. :/
  • haha (Score:2, Informative)

    by jswigart (1004637)

    Your client 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.

    Ohhh snap. My favorite part.

    • by Technician (215283) on Wednesday March 28, 2007 @12:24AM (#18511759)
      Personaly I think this little tidbit near the end is a real zinger which finishes off the RIAA team.

      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.
  • Is this letter and letters like it the silver bullet that stops an RIAA lawsuit? What about MPAA? BSA?
    • by westlake (615356) on Tuesday March 27, 2007 @10:06PM (#18510935)
      Is this letter and letters like it the silver bullet that stops an RIAA lawsuit?

      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.

  • by wall0159 (881759) on Tuesday March 27, 2007 @09:16PM (#18510627)

    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)?
    • by QuantumG (50515)
      Investigators in civil cases have similar powers to the police. They can raid and seize if they believe evidence is likely to be destroyed. Destroying or refusing access to evidence is as much a crime in civil cases as it is in criminal cases.

      Basically you're saying Enron did nothing wrong by shredding all those documents.
      • by rm69990 (885744) on Tuesday March 27, 2007 @11:53PM (#18511611)
        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!
    • by Technician (215283) on Tuesday March 27, 2007 @09:34PM (#18510729)
      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.)

    • 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...)

      If I read that right:
      - The original disk became subject to discovery in the case.
      - So they bought a replacement and made a copy of it to continue running on and stored the original.
  • Your Hired (Score:4, Insightful)

    by mugnyte (203225) on Tuesday March 27, 2007 @09:20PM (#18510653) Journal

      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 i
    • by Dunbal (464142)
      lobbying in such countries is still way cheaper than lobbying in the US.

      I live in one of those poor countries. And I agree with you. But remember: you get what you pay for. Yes, lobbying is cheaper. But then again, law enforcement is much weaker. They have trouble putting murderers in jail. A copyright infringement case is way way down on the priority list. Personally I have never heard of one.

      Also add in the fact that plagiarism is pretty much the norm here, from
  • best bit (Score:3, Insightful)

    by z3d4r (598419) on Tuesday March 27, 2007 @09:27PM (#18510683)
    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.
  • That letter is pure gold...my favourite para:

    Your client 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 kiddi

  • by swschrad (312009) on Tuesday March 27, 2007 @09:40PM (#18510781) Homepage Journal
    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."
  • by layer3switch (783864) on Tuesday March 27, 2007 @10:00PM (#18510897)
    A little bit of googling, I found this organization (hint, look at the bottom picture)
    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!
  • by Builder (103701) on Wednesday March 28, 2007 @02:47AM (#18512441)
    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!
  • Body slam (Score:3, Funny)

    by Ydna (32354) * <andrew AT sweger DOT net> on Wednesday March 28, 2007 @10:01AM (#18515601) Homepage
    From the letter:

    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."
    So, this lawyer is a Slashdot regular then.

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