RIAA Receives Stern Letter, Folds 382
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."
Re:What happened here... (Score:5, Informative)
I'm not aware of them ever having won a fully contested case.
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.
haha (Score:2, Informative)
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.
Re:itsatrap (Score:1, Informative)
Re:Awesome lawyer (Score:2, Informative)
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.)
Re:hang on - *without* prejudice? (Score:5, Informative)
Re:clone of hard disk as evidence (Score:1, Informative)
If the majority of people could fight the suits im sure they would spend more time on evidence and building a reasonable case, until then enjoy reading about the mafiaa on slash dot.
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!
Re: Thin Skull Defense! (Score:2, Informative)
The "thin skulled plaintiff" principle indicates that you must take a person as you find them, even if they are particularly susceptible to a particular harm.
Re:Yay (Score:4, Informative)
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.
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.
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...
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.
Re:Very wrong (Score:3, Informative)
Yes the RIAA is acting illegally, and has even committed perjury, but getting the defendants compensated for that will be very difficult.
Re:Model letter grammar (Score:5, Informative)
Second, RTFA:
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!
Didn't anyone notice? (Score:2, Informative)
From the letter:
I especially like the bit about sending the airplane - always offer to run up the costs - especially when you want to show that you believe that you have an open and shut case! Of course, it doesn't hurt to also show that you know the likely principals in the case from previous dealings. I like this attorney!
Comment removed (Score:3, Informative)
Re:How it works... (Score:2, Informative)
>Now everyone that receives a $3000 settlement letter from the MAFIAA can just reply and get the case thrown out?
Well, in the case, the response is a very specific address warning the plaintiff's attorney of the deficiency of his evidence and of other procedural problems that will prevent his bringing his case to court. Separate, is that he knows exactly how to seek relief for malicious litigation in his state, and warns that he is likely enough to be successful, that a half-million dollar or higher settlement paid to his clients would be a realistic potential outcome of going forward with their weak case. Whether he could really make this happen or whether he is bluffing, is hard to say. But I suspect he is not bluffing at all, and I further suspect that he is entirely capable of nailing the plaintiff to the floor and that his clients can afford to do it just for fun. (I think the main thing to note is that the defendant here is a wealthy Californian who can do this just for the pleasure of making someone squirm.)
Settlements don't make precedence (Score:5, Informative)
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:That's not what they'll win Congress with, no.. (Score:3, Informative)
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]
I don't think so (Score:2, Informative)
He was just taking an opportunity to point out a few other things they'd done wrong and offer "friendly" advice on how to fix it. If they actually intended to withdraw (with or without prejudice) there'd be little point in stipulating to the change of jurisdiction first, which I think Ledford knows-- he's just pointing out that not only were they ill-prepared to win, but that they were also procedurally deficient as well.
Re:That's not what they'll win Congress with, no.. (Score:2, Informative)
Re:Settlements don't make precedence (Score:4, Informative)