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."
Costly Justice (Score:3, Interesting)
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?
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.
Re:itsatrap (Score:5, Interesting)
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)?
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...
Re:hang on - *without* prejudice? (Score:5, Interesting)
Re:hang on - *without* prejudice? (Score:3, Interesting)
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 be paid by the RIAA. Was there a legal obligation for Mr. Ledford to have responded as he did, perhaps because he had a duty to point out the improper venue or other technicalities, or was it just an attempt to get the case settled ASAP to save time and money for everyone?
Re:The silver bullet? (Score:5, Interesting)
2. I'm not aware of a single case having gone to trial.
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.
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.
Re:Awesome lawyer (Score:1, Interesting)
Perhaps its not an all-out victory, but it is certainly a blow against RIAA bullying.
What the law actually [currently] says... (Score:2, Interesting)
Sigh... I posted this as AC, but got modded flamebait... so, here it goes again. In some cases copyright infringement is already criminal according to US Code Title 17 Chapter 5 Section 506.
http://www.copyright.gov/title17/92chap5.html#506 [copyright.gov]
The punishments violating the above mentioned code are as listed below:
http://www4.law.cornell.edu/uscode/html/uscode18/
So can we *please* stop pushing the myth that copyright infringement is a strictly "civil" offense. It just isn't, no matter how much people say it. I've pasted the actual punishments below.
2319. Criminal infringement of a copyright
(a) Whoever violates section 506 (a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b) and (c) of this section and such penalties shall be in addition to any other provisions of title 17 or any other law.
(b) Any person who commits an offense under section 506 (a)(1) of title 17--
(1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500;
(2) shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case.
(c) Any person who commits an offense under section 506 (a)(2) of title 17, United States Code--
(1) shall be imprisoned not more than 3 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 10 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of $2,500 or more;
(2) shall be imprisoned not more than 6 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000.
(d)
(1) During preparation of the presentence report pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure, victims of the offense shall be permitted to submit, and the probation officer shall receive, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim, including the estimated economic impact of the offense on that victim.
(2) Persons permitted to submit victim impact statements shall include--
(A) producers and sellers of legitimate works affected by conduct involved in the offense;
(B) holders of intellectual property rights in such works; and
(C) the legal representatives of such producers, sellers, and holders.
(e) As used in this section--
(1) the terms "phonorecord" and "copies" have, respectively, the meanings set forth in section 101 (relating to definitions) of title 17; and
(2) the terms "reproduction" and "distribution" refer to the exclusive rights of a copyright owner under clauses (1) and (3) respectively of section 106 (relating to exclusive rights in copyrighted works), as limited by sections 107 through 122, of title 17.
page 24 (Score:2, Interesting)
Jacobsen is a smart man from my university, but he doesn't come off well on paper and the lawyers just seem to be fighting eachother the whole time.
I personally think that since P2P only uploads a chunk of a file to someone, you technically didn't give them anything really useable- but that's just me.
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.
Worked so well? (Score:3, Interesting)
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 not a model letter either: the "emotional distress" argument is specific to Mr Merchant, and cannot be reused by other people. And most caselaw cited is specific to California.
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:
Re:Awesome lawyer (Score:3, Interesting)
Re:That's not what they'll win Congress with, no.. (Score:4, Interesting)
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:That's not what they'll win Congress with, no.. (Score:3, Interesting)
Re:Worked so well? (Score:3, Interesting)
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 and went on his way. I don't see the issue here. We should be thanking Mr. Merchant and his lawyer IMO. I think there is a difference between being "rational" and being "right". I'm a pretty righteous person, and if I had the means I would have done the same exact thing as Mr. Merchant. Gives the RIAA a black eye and a spring in my step. If I had the means, it would be money well spent.
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.
Re:That's not what they'll win Congress with, no.. (Score:3, Interesting)
Sure, but at the same time, if the RIAA is intentionally and willfully releasing their content via the same P2P distribution channel as where they are actively suing users, it does present a bit of a legal problem. "I got it from the RIAA" would be a valid defense.
As always there is a chicken and the egg problem though, someone needs to first send the RIAA investigator a piece of the file before the RIAA can redistribute it, so potentially that first person would still be a target.