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RIAA Receives Stern Letter, Folds

kdawson posted about 7 years ago | from the turning-tide dept.

The Courts 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."

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382 comments

itsatrap (5, Insightful)

QuantumG (50515) | about 7 years ago | (#18510383)

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 (5, Insightful)

NewYorkCountryLawyer (912032) | about 7 years ago | (#18510465)

You think the fact that they bring frivolous lawsuits against helpless people is going to help them with Congress?

I respectfully disagree.

Re:itsatrap (5, Interesting)

QuantumG (50515) | about 7 years ago | (#18510619)

I just mean they will claim they can't collect sufficient evidence without the resources of the police.

That's not what they'll win Congress with, no... (5, Interesting)

Anonymous Coward | about 7 years ago | (#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...

Re:itsatrap (3, Funny)

Anonymous Coward | about 7 years ago | (#18510641)

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:itsatrap (4, Funny)

thc69 (98798) | about 7 years ago | (#18510845)

No, you've got it all wrong. See, it's a compound word. "Con" being the opposite of "pro", and "gress" meaning improvement, "congress" is therefore against improvement. Or, possible, it is a gress made up of "cons", short for "convicts"...there are probably quite a few of those...

Re:itsatrap (0)

Anonymous Coward | about 7 years ago | (#18510701)

Their campaign contributions are going to help them with Congress.
The fact that they can't win lawsuits is to give the whole business an appearance of semi-legitimacy.

Re:itsatrap (1, Informative)

Anonymous Coward | about 7 years ago | (#18510707)

No, he's saying that the RIAA is bringing some cases without sufficient evidence in an attempt to make the laws look weak and get Congress to beef up the laws. He didn't mention anything about helpless people, indeed TFA (you might care to read it, after which you probably want to sue the submitter for representing himself as you, as if it had been you you'd have read it) is about someone who was clearly not helpless.

Re:itsatrap (2, Insightful)

StewedSquirrel (574170) | about 7 years ago | (#18510799)

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 (4, Insightful)

supersat (639745) | about 7 years ago | (#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 (1)

EonBlueTooL (974478) | about 7 years ago | (#18510979)

Congress doesnt just eat the souls of small children and the elderly. They take money too! (which will help them with congress)

Re:itsatrap (5, Insightful)

nurb432 (527695) | about 7 years ago | (#18510503)

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.

Re:itsatrap (1)

QuantumG (50515) | about 7 years ago | (#18510761)

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?

Re:itsatrap (1)

thisissilly (676875) | about 7 years ago | (#18510873)

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

Which means the local DA and the Justice Department will petition for larger budgets, so they can be "tough on crime", and receive more of your tax dollars.

All about the money (2, Insightful)

TheGreatHegemon (956058) | about 7 years ago | (#18510533)

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.

Re:itsatrap (1)

pete6677 (681676) | about 7 years ago | (#18510963)

The last thing they would want is to be doing this in criminal court, where the required burden of proof is much higher.

Re:itsatrap (-1, Flamebait)

Anonymous Coward | about 7 years ago | (#18511067)



Some copyright infringement is already criminal... People on slashdot seem to think otherwise, in ignorance of the law. Please see:

http://www.copyright.gov/title17/92chap5.html#506 [copyright.gov]

That's USC Title 17 Chapter 5, Section 506. Thank you all for not perpetuating myths.

Andrew

MAFIAA (5, Funny)

User 956 (568564) | about 7 years ago | (#18510391)

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.

Who is Stern? (3, Funny)

mrbluze (1034940) | about 7 years ago | (#18510959)

RIAA Receives Stern Letter, Folds
.. then unfolds and reads again, to find said Letter is in fact an invitation to appear on the Howard Stern show. Oh my! I think they are going to get seriously screwed this time.. probably by an automated device no less!

Transcript from the lawyer's office (5, Funny)

Anonymous Coward | about 7 years ago | (#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:Transcript from the lawyer's office (0)

Anonymous Coward | about 7 years ago | (#18510467)

Lawyer #1: Excuse me? It says no what?

I can just imagine the look of "what the FUCK" on the lawyer's face...

Re:Transcript from the lawyer's office (3, Funny)

cyphercell (843398) | about 7 years ago | (#18510923)

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)

What happened here... (4, Insightful)

Runefox (905204) | about 7 years ago | (#18510419)

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.

Re:What happened here... (4, Insightful)

Harmonious Botch (921977) | about 7 years ago | (#18510539)

...The more success they have, the more ammunition they have. The more loss they endure, the more ammunition the defendants are given.
The law is not like playing football; nobody counts your wins and losses at the end of the season.
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.

Re:What happened here... (0)

Anonymous Coward | about 7 years ago | (#18510827)

Oh i think its a far bit worse that that. Most decent lawyers, hell even cheap ones are like 3k. Its the same as the fighting the insurance company over minor fender benders. Most people probably just bow down and pay. Its hilarious to think that they would stop at a simple no, but how do we know they have been challenged that often? Is there a list of RIAA battles and their outcomes?

hang on - *without* prejudice? (5, Informative)

Bazzargh (39195) | about 7 years ago | (#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?

Re:hang on - *without* prejudice? (5, Informative)

NewYorkCountryLawyer (912032) | about 7 years ago | (#18510485)

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:hang on - *without* prejudice? (0)

Anonymous Coward | about 7 years ago | (#18510635)

The lawyer's letter to the RIAA indicated that the case was filed in the wrong jurisdiction, with that being the case and the RIAA not agreeing to the terms set forth by the defendant's lawyer, do you think the RIAA will refile under the correct jurisdiction? I hope Ledford sticks it to the FIAA good in the current case jurisdiction and sticks it in even deeper if they try to file it in the proper jurisdiction.

Re:hang on - *without* prejudice? (2, Interesting)

NormalVisual (565491) | about 7 years ago | (#18510833)

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 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:hang on - *without* prejudice? (5, Insightful)

NewYorkCountryLawyer (912032) | about 7 years ago | (#18510863)

In the real world a lawyer has to try to get the case shut down at the earliest possible juncture. There is no guarantee of getting attorneys fees later. The idea is to win, and win as fast as possible. Mr. Ledford did the right thing. And accomplished a great result.

Re:hang on - *without* prejudice? (4, Interesting)

MindStalker (22827) | about 7 years ago | (#18510647)

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.

Re:hang on - *without* prejudice? (1)

Hao Wu (652581) | about 7 years ago | (#18510837)

I wonder if it is technologically possible to bait the RIAA into suing you... set things up to look like you up or downloaded, but with proof that you are innocent.


They when they come for you, counter-sue for billions.

Re:hang on - *without* prejudice? (1)

brouski (827510) | about 7 years ago | (#18511003)

Would such a thing be legal?

Re:hang on - *without* prejudice? (1)

Hao Wu (652581) | about 7 years ago | (#18511109)

Would such a thing be legal?

Probably, except for the "lying under oath" and "conspiracy to commit fraud" aspects. Those pesky details...

Re:hang on - *without* prejudice? (1)

evought (709897) | about 7 years ago | (#18510839)

I think it also depends on whether the settlement agreement the defense lawyer was asking for was signed. The agreement would provide for the defendant's legal fees and ensure that the matter is permanently over. In the letter, it also mentioned that neither side could participate in actions by third parties against each other, such that, for instance, the defendant could not take part in a class action suit against the RIAA under the proposed settlement. Given that the defense lawyer suggested he would be amenable to confidentiality on the actual terms of the settlement, we may never know the details.

If, on the other hand, the RIAA dismissed without settling, I would imagine the defendant will counter-sue for legal fees, etc.

Costly Justice (2, Interesting)

biocute (936687) | about 7 years ago | (#18510461)

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?

Re:Costly Justice (1)

iamacat (583406) | about 7 years ago | (#18510563)

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:Costly Justice (1)

AntiNazi (844331) | about 7 years ago | (#18510749)

Why should you have to surrender your privacy for no reason. Would you let me look over your unmodified hard drive if I wanted to? Or should we only submit to corporations?

Re:Costly Justice (2, Insightful)

finkployd (12902) | about 7 years ago | (#18510825)

What about their past actions leads you to believe the RIAA is above planting mp3s on a harddrive?

Finkployd

Re:Costly Justice (1)

sconeu (64226) | about 7 years ago | (#18510899)

You make *TWO* copies of the disk -- in the presence of both the RIAA lawyer and your lawyer. The RIAA gets one copy, your lawyer gets the other.

This, of course, is part of the fees reimbursed upon dismissal of the case.

Re:Costly Justice (2, Insightful)

QuantumG (50515) | about 7 years ago | (#18510797)

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 (4, Interesting)

Anonymous Coward | about 7 years ago | (#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.

Re: Thin Skull Defense! (1)

TaoPhoenix (980487) | about 7 years ago | (#18510671)

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."

Re: Thin Skull Defense! (2, Informative)

AO (62151) | about 7 years ago | (#18510927)

Try Google...I tossed "thin skulled client" and got back a lot of results. After reading parts of them, I think the following is a very good description:
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.

Awesome lawyer (4, Interesting)

Hays (409837) | about 7 years ago | (#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 (5, Interesting)

Simon Garlick (104721) | about 7 years ago | (#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 (1)

Workaphobia (931620) | about 7 years ago | (#18511059)

Primarily in that last paragraph. I was about to copy and paste that one in myself. I'm pleased to see a lawyer using the word "Wintel".

Re:Awesome lawyer (5, Informative)

NewYorkCountryLawyer (912032) | about 7 years ago | (#18510587)

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.

Re:Awesome lawyer (1)

bataras (169548) | about 7 years ago | (#18510679)

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:Awesome lawyer business model (1)

TaoPhoenix (980487) | about 7 years ago | (#18510735)

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.

your all fags and cunts! (-1, Flamebait)

Anonymous Coward | about 7 years ago | (#18510551)

go back to smoking that dick, faggot.

haha (2, Informative)

jswigart (1004637) | about 7 years ago | (#18510567)

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.

The silver bullet? (1)

erroneus (253617) | about 7 years ago | (#18510577)

Is this letter and letters like it the silver bullet that stops an RIAA lawsuit? What about MPAA? BSA?

Re:The silver bullet? (3, Insightful)

westlake (615356) | about 7 years ago | (#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.

oh, snap! (0)

Anonymous Coward | about 7 years ago | (#18510583)

NYCL is like the elliot spitzer of copyviol.

kudos [reference.com] for all the updates.

clone of hard disk as evidence (3, Interesting)

wall0159 (881759) | about 7 years ago | (#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)?

Re:clone of hard disk as evidence (1)

QuantumG (50515) | about 7 years ago | (#18510727)

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.

Re:clone of hard disk as evidence (4, Informative)

Technician (215283) | about 7 years ago | (#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.)

Re:clone of hard disk as evidence (1)

Ungrounded Lightning (62228) | about 7 years ago | (#18510815)

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.
  - They offered to let the RIAA's agent, under supervision, buy a fresh disk (with no deleted music files already on it) and make their own clone of the original.
  - And meanwhile, because the defendant had to buy the new disk he's now running on (so the old one could be preserved for RIAA's benefit) they want the RIAA to PAY for that one, too. B-)

Re:clone of hard disk as evidence (1)

da_yingyang0 (1048770) | about 7 years ago | (#18510819)

This is not a criminal case, it is a civil case. In civil cases you have to turn over everything they ask for and everything you expect to use in the case. They were going to ask for the hard disk, so the lawyer did the correct thing and secured it right away.

Re:clone of hard disk as evidence (2, Informative)

uolamer (957159) | about 7 years ago | (#18510887)

In the US there is a big difference between civil and criminal cases. in a civil case they just sue.. in a criminal case they would actually need evidence, probable cause or to get a warrant to get the evidence, by the time they got done there would be a real case or they would drop the thing. you rarely see criminal cases of a technical nature charged with the lack of evidence as the riaa does.

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.

Your Hired (3, Insightful)

mugnyte (203225) | about 7 years ago | (#18510653)


  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.

 

good, but expect more from our evil overlords (2, Insightful)

siddesu (698447) | about 7 years ago | (#18510661)

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 is that more and more countries (especially countries where the electorate isn't particularly sensitive about the _laws_ that govern copyright and related rights -- as they aren't enforced much) not only pass draconian laws with stiff penalties, but use more and more the "intellectual property rights" language, and that may lead to a funny situation in which most of the world outside the US will match, or overdo US; at which point the *AA industry will possibly make the claim that this is "the state of art", and move on to further limits rights in the US.

So, while this development is good, there is still more to come on the copyright front ;)

Re:good, but expect more from our evil overlords (1)

Dunbal (464142) | about 7 years ago | (#18510715)

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 school-age up. Those "draconian" laws just make people laugh - first you have to prove that the law was broken (unlike other "free" countries where you apparently have to prove your innocence). That takes resources the government doesn't have, and organization on the part of ISP's - no way. And after all that, I suppose one could simply bribe the judge...

Re:good, but expect more from our evil overlords (1)

ricree (969643) | about 7 years ago | (#18511035)

Yes, lobbying is cheaper. But then again, law enforcement is much weaker.


Yes, but like the grandparent post said, they don't really need the enforcement. Once they get enough laws passed elsewhere, they can be used as an additional lever here. The *AAs' already have enough of a hold on the government as it is that we can ill afford to let them get an even firmer grip on things. Ideally, we would smack down these companies before this sort of strategy could start to bear results. That's already happening in a limited fashion, we just need to keep it going and continue to make IP in this county more sane.

WOW! (1, Insightful)

certain death (947081) | about 7 years ago | (#18510663)

That letter was fucking awesome! I love a good fight, but that was just a plain freaking knockout.

Re:WOW! (0)

Anonymous Coward | about 7 years ago | (#18510911)

Now you know what they think then you spend 2 minutes at the computer and it starts printing again.

best bit (3, Insightful)

z3d4r (598419) | about 7 years ago | (#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.

Re:best bit (1)

Overzeetop (214511) | about 7 years ago | (#18510941)

Tell you what - there's a growing body of cases which are really going to provide some ammunition to the defendants in these cases. The reference to Capitol v. Foster was a nice touch. Anyone have an idea when those records will become public?

Maybe Ray will read down this deep, as he would be one of the best to answer this:

If the tide really does turn significantly against the RIAA through multiple court rulings, is there any chance that those who have previously settled could form some sort of class to recover their settlements based on, well, I don't even know - extortion, with the settlements signed under duress (fear of financial ruin, win or lose)?

Re:best bit (1)

NewYorkCountryLawyer (912032) | about 7 years ago | (#18510975)

Probably not, which is one of the reasons people should not be rushing to pay the RIAA's extortion demands and sign its one-sided, oppressive "settlement" form.

Re:best bit (1)

Overzeetop (214511) | about 7 years ago | (#18511111)

I figured as much. Chances of winning (enough) are just too slim, even if you could find legal footing.

I must admit the legal rambling is interesting. Sometimes the answer of whether you're on solid legal ground depends on whether the issue is just under idle discussion or you've got actual cash on the line. I'm tertially involved in a legal battle, and the general consensus is that I'm clearly the owner of an item of property (the ownership is in dispute by two other parties, but the item is in my posession). My lawyer, when it came down to actual disposition of the item, recommended a passive position for me as there was a slim - but finite - chance that the common ownership transfer could, theoretically, be viewed as nonbinding. I always enjoy a good arguement.

Re:best bit (1)

piper-noiter (772438) | about 7 years ago | (#18511089)

Now I'm no lawyer but I think the point was the RIAA was using Mr. Merchant's lack of response (positive or negative) to their settlement as justification for the lawsuit without any other reasons. The lawyer didn't claim that he would sue the RIAA if the they didn't respond to his deal.

Merl Ledford III - pwn0r of the MAFIAA (1)

svunt (916464) | about 7 years ago | (#18510697)

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 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.

ha.... (1)

spaxxor (1078649) | about 7 years ago | (#18510739)

well, it's almost a fact, that the more you enforce things, and the more you restrict, the more people are going to do what you don't want them to do. I'm not saying that there should be no government, I just think the RIAA should back off more, because in the technology world, where information is currency, you cannot successfully track the misuse of this technology without the major violation of one's rights

damn straight, this is a model defense !! (4, Funny)

swschrad (312009) | about 7 years ago | (#18510781)

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."

Yay (0, Flamebait)

stratjakt (596332) | about 7 years ago | (#18510865)

Lots of bragging in there about his clients vast wealth and ability to fight back.

Guess that doesn't apply to me. I can't fly techs around the country to copy my hard drive and dance the hokey pokey and do other bullshit.

They've no doubt taken millions from people who cant fight back.. Is there a tally anywhere? Or is it all "confidential".

I should also note that lawyers are duplicitious sacks of dog shit. Don't lionize this guy, he's not fighting the good fight, he's "getting a rich guy out of trouble".

Re:Yay (1)

layer3switch (783864) | about 7 years ago | (#18510949)

"In our part of the world, that is a mid-six to low seven figure piece of computer gear."

That's one very expensive piece of computer gear with "AOL" installed on. /sarcasm

FYI - About Merl Ledford III from California (4, Informative)

layer3switch (783864) | about 7 years ago | (#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!

Reasonable confidentiality? (0)

Anonymous Coward | about 7 years ago | (#18510985)

Oh Boy!
Fell out of my chair when I read that part.
"Confidentiality".
On Slashdot. :)

Model letter grammar (1)

Tim_F (12524) | about 7 years ago | (#18511005)

Something about this doesn't seem quite right to me. The grammar in this letter is should not be coming from a respected legal firm in California.

Is this truly real?

A litigation army versus guerrilla lawyers (1)

CandyMan (15493) | about 7 years ago | (#18511015)

Check out the copy from his website:

> Stripped of "full service" firm inefficiencies and armed with cutting-edge technology, our clients' legal goals gets accomplished, not just discussed. Hard-hitting, high-tech litigation SWAT teams pose a greater threat to opponents than slow-moving bureaucracies, positioning our Clients' to win under the profession's customary BATNA analysis. Aggressive, attack-focused litigation encourages prompt, favorable outcomes while reducing our clients' business risk and saving time and money.

As someone has said above, the letter is major 0wnage. The RIAA vs the people is really an example of a litigation army versus guerrilla lawyers. The army may be getting some civilians along their path, but the guerrilla are winning every facedown.

ba ba bap ba ba, I'm lovin' it [*] (0)

Anonymous Coward | about 7 years ago | (#18511043)

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.

All I gotta say, is: OH, SNAP!

[*] Lyrics (c) some band, used without permission.

Plaintiff should not be allowed to drop the case.. (2, Insightful)

kcbrown (7426) | about 7 years ago | (#18511049)

...unless the defendant agrees to it.

The bottom line is that if you bring suit against someone else, you should be prepared to get your ass handed to you. You should not be allowed to simply drop the suit once you initiate it. If the defendant is willing to fight it to the end, then they should have that option.

Maybe this would make it harder to bring suit against a well-financed opponent. So be it. A suit brought against a well-financed opponent is just as unjust as one brought against a poorly financed one if the suit itself has little merit.

The problem of bankrupting either side through the lawsuit is a completely separate issue that also needs to be addressed, of course, and as far as I'm concerned the maximum amount of damage should be limited to some large percentage of the total assets of the entity in question (for a corporation, those assets should include the total assets of all direct and indirect owners). That goes for plaintiff and defendant, of course. So if the plaintiff elects to drop the suit after having hit that limit, only then should doing so not require the assent of the defendant.

The system as it stands right now is inexcusable.

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