Tuesday, March 27, 2007

RIAA Backs Down After Receiving Letter from Defendant's Lawyer Threatening Malicious Prosecution; Voluntarily Dismisses Case

In SONY v. Merchant in California, after receiving a sternly worded letter from the defendant's lawyer, Merl Ledford III, of Visalia, California, threatening a malicious prosecution lawsuit, the RIAA immediately withdrew its lawsuit:

Notice of Voluntary Dismissal*

The text of the stern letter was as follows:
************************************************************************************

From: Merl Ledford III, Esq. [mailto:m.ledford3@ledfordlaw.net]
Sent: Tuesday, March 27, 2007 1:11 AM
To: Thomas McCarten Kerr, Esq
Cc: Barry Merchant
Subject: Sony BMG et al. v. Merchant Eastern Dist of Cal. Sacramento Branch 2:07-CV-00340-DFL-DAD

Dear Mr. Kerr

Thank you for your letter of March 23, 2007 received in my office today. I did not receive a copy of the letter by PDF although that method of delivery was shown on the letter.

Incorrect Venue and Emotional Distress


The lawsuit filed by your office and your letter arrive at a particularly inappropriate time in Barry and Cathy Merchant's life. Mrs. Merchant left my office after our first meeting to attend to ill father in Colorado. She and Barry Merchant left my office today to attend his funeral. You should advise your clients that they are facing a "thin skull plaintiff" either on a Rule 11 sanctions motion or (upon favorable termination) in a malicious prosecution action. The emotional distress inflicted by your clients' litigation -- filed in Sacramento rather than the Fresno Branch of the Eastern District Court where my clients' live in violation of the Rules of Court -- has been extreme.

Your client should carefully consider whether it has probable cause to proceed at this point. Mr. Merchant's hard drive is available for immediate, carefully supervised inspection by your client; a carbon copy of the drive has been made by technicians to insure that the evidence is well backed-up.

At the time of inspection, 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 under the Copyright Act, it will certainly mitigate damages to Mr. and Mrs. Merchant and the possibility of escalating the issues by counter-claim on federal grounds that have been successfully pleaded in other states as well as on pendant California claims that have, thus far, tempered your clients' California zeal for litigating in this state.

Selling a Settlement and the AOL Subpoena

I have evidence of one letter dated June 5, 2005 from an attorney in your firm who is not licensed to practice law in California to Mr. Merchant claiming copyright infringement and demanding settlement negotiations. There is no other record of any kind.

Please provide copies of other correspondence that your clients claim was received by Mr. Merchant (whether by AOL or others) demanding settlement. Is it the same AOL letter that your clients' represented was sent by AOL to a woman with MS who lives in the New York borough of Queens. See Elektra v. Schwartz, Cent Dist NY, 1:06-cv-03533-DGT-RML, Document 21). When the letter was finally produced, after objection and delay, it became clear that its contents had been misrepresented to the Court. (How anyone from the former Gray Cary firm ever pull such a stunt stuns me; it used to be such a fine office.)

Also, please provide my office with copies of all telephone records of contacts your clients claim to have had with Mr. or Mrs. Merchant, and (with respect to your discussion of the AOL subpoena), proofs of service of Notice of Opportunity to Appear and Oppose RIAA's subpoena, a copy of the subpoena, and all of the parties' pleadings in support and opposition to issuance of the subpoena. In the event the AOL litigation named Doe defendants in violation of the Federal Rules of Civil Procedure and obtained any information regarding Mr. Merchant's long-standing without appropriate notice or in violation of California consumer privacy laws, I will request a preclusion order barring any use or derivative use of any information so obtained. See, e.g., Fonovisa v. Does 1-41, W.D. Texas, Austin Div. 04-CA-550 LY.

Independent Factual Investigation and Probable Cause to Sue: Background


Your office has a duty of good faith independent factual investigation and legal research sufficient to support a finding of probable cause to sue.

In Williams v. Coombs (1986) 179 Cal. App. 3d 626, the California Court of Appeal held that attorneys who participate in the filing or maintenance of litigation without probable cause are personally liable for malicious prosecution of a civil action.

In Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal. 3d 863, the California Supreme Court narrowed Williams, holding that a trial court may not delegate the ultimate determination of probable cause to the jury; it held that the question was one of law which must be resolved by the Court. Id. at 876. The Sheldon decision specifically disapproved of dicta from Tool Research & Engineering Corp. v. Henigson (1975) 46 Cal. App. 3d 675, at 683, that the attorney must have a "subjective belief" in the tenability of his or her client's claim in order to avoid malicious prosecution liability. Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal. 3d at 881. It nevertheless "strongly emphasized" that its conclusion "does not by any means suggest that an attorney who institutes an action which he does not believe is legally tenable is free from the risk of liability" because the lawyer's subjective belief "would clearly be relevant to the question of malice." Id. (emphasis supplied); see also Slater v. Durchfort (1995) 35 Cal. App. 4th 1718, 1724.

The Shelton Court also disapproved of Tool Research dicta suggesting that lack of probable cause may be proven "simply by showing that [the attorney] failed to perform reasonable legal research or factual investigation before filing a claim." Id. at 882. Rather, the Shelton Court held that such lack of diligence is relevant on the issue of malice. Id. The Shelton Court specifically disapproved of the Williams decision's apparent use of lack of investigation to prove lack of probable cause, although it fully endorsed the Williams analysis of the tort of malicious prosecution itself. Id. at 882-883 (footnote 9).

Although malicious prosecution was once characterized as a “disfavored action,” it has been somewhat expanded in recent years in apparent frustration with continued "shotgun" lawyering tactics by Plaintiff's counsel. In Crowley v. Katleman (1994) 8 Cal. 4th 666, the California Supreme Court upheld a malicious prosecution complaint where only five of six underlying causes of action were alleged to have been brought without probable cause. The court specifically rejected the defendant's claim that because one of the original causes of action was based on probable cause, the entire complaint was made immune from malicious prosecution liability. Id. at 694-695. Similarly, in Zamos v. Stroud (2004) 32 Cal.4th 1297b, the Court endorsed an action against an anti-SLAPP motion where a litigant’s counsel filed and maintained causes of action without probable cause.

Independent Factual Investigation and Probable Cause to Sue: Lack of Probable Cause

I know of no facts on which a good faith finding of probable cause by either your clients or your law firm could be based to support a claim for relief against Mr. Merchant.

It is well documented that your clients' reliance on MediaSecurity (an admitted "non-expert;" UMG v. Lidor, East Dist NY No. 1:05-cv-01095-DGT-RML) and its overall method of identifying P2P copyright infringers is wholly unreliable and inadequate. See, e.g., February 23, 2007, deposition of the RIAA's expert. http://www.ilrweb.com/viewILRPDF.asp?filename=umg_lindor_070223JacobsonDepositionTranscript. See also expert witness statement of Prof. Pouwelse and Dr. Sips: http://www.ilrweb.com/viewILRPDF.asp filename=foundation_upcnederland_witnessdeclaration and amicus curiae brief of the ACLU, Public Citizen, Electronic Frontier Foundation, American Association of Law Libraries, and ACLU Foundation of Oklahoma, in Capitol v. Foster decrying the RIAA's "driftnet" litigation strategy: http://www.ilrweb.com/viewILRPDF.asp?filename=capitol_foster_amicus.

Such facts were known or reasonably should have been known to you and your law firm before suit against Mr. Merchant was filed. Thus, unless you and your office undertook additional independent investigation to identify Mr. Merchant as a person who actually has engaged in copyright infringement by illegal downloading, good faith basis for a Rule 11-compliant probable cause finding consistent with the Williams line of cases cited above simply did not exist to file the action. . . and does not exist now for it to be maintained.

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 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.

Settlement Option

It is not too late to correct your clients' (and your law firm's) mistakes.

Mr. and Mrs. Merchant's emotional condition puts a premium on immediate case resolution. Thus, although I generally do not make opening legitimate offers as defense counsel, the clients' non-monetary interests and their probability of recovering their fees and costs in this matter (at a minimum) suggest that a defense settlement offer would not be inappropriate. Therefore:

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).

2. Apology on your firm's letterhead by your supervising partner for inappropriately filing and maintaining an action against Mr. Merchant without probable cause and for the emotional hardship that such litigation caused; and

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 them on his guitar, and get sued by way of cross-claim by the guitar tab site). My form of release also anticipates class action litigation that is in the works at several SoCal class-action offices on RICO, Unfair Practices Act (Bus & Prof. Code §§17200 et seq.) and other grounds against RIAA, MediaSentry, and all of your named clients in the Merchant action. My clients will agree to opt out of any such litigation; the release language is tailored to your clients are not giving up any defenses they might otherwise have to the class claims.

4. Confidentiality: It is my general practice to disfavor confidential settlements. Under the circumstances, and so long as your clients are prompt and candid in dealing with their mistaken, misplaced lawsuit, I would consider a reasonable confidentiality provision. Again, quick response, full payment, and immediate dismissal will allow confidentiality as an option.

The authorized settlement offer expressed in the preceding paragraphs of this email (and confirmed in staff-proofed letter format to be sent by fax and US Mail tomorrow; sorry for typos that are an unfortunate part of any quick-response email) may be accepted by signing a copy of this email and returning it to my office by fax no later than the close of business on Friday, March 30, 2007. It is intended to be presented to your clients as written in complete context of this email (and text-corrected letter to follow) in accordance with Rule 3-510, CRPC. It is the best offer that will be made in this litigation based on the facts and circumstances as they are known at this time. Substantial discovery, investigation, and exchange of information remains that could substantially alter the settlement position of the parties to the betterment of either side in ways that cannot now be responsibly predicted. The case settlement value will, however, trend upward the longer I have to work on it. And the emotional distress damages for willfully filing and thereafter maintaining claims for relief without probable cause will only increase as the matter drags on.

The offer is made pursuant to California Civil Code section 47 and in accordance with Rule 408, Fed.Rul.Evid. and California Evidence Code §§ 1152 and 1154 for the sole purpose of settling doubtful and disputed claims by and between the parties. Neither the fact that the offer was made, nor its acceptance, nor any statement made in the course of settlement negotiations shall be admissible to prove the strength or weakness of any claim, counter- or cross-claim, or defense raised or that could be raised by or between the parties regarding the subject matter of their dispute.

Procedural Issues

Your reminder about preservation of evidence, of course, cuts both ways. Since my client's hard drive completely exculpates him, functionally compels dismissal, and opens the door to substantial recovery, he is doing everything in his power to preserve and protect his evidence. In our part of the world, that is a mid-six to low seven figure piece of computer gear.

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. (Senior Judge Bob Coyle was responsible for building both our new facility and the District Court building in Sacramento; and, although neither building is as grand as Judge Manny Real's showpiece in Santa Ana, the Fresno Court is not only nicer than Sacramento but also one of the top three court facilities ever I've enjoyed practicing in.) Handling the issue by stipulation and order would probably be the most simple way to move the file. We do that routinely in PACA litigation although I am open to suggestions if you prefer to handle it differently

Once the case is moved to the Fresno Branch, your clients should consider cleaning up their complaint. The FRCP and collateral estoppel from other RIAA law and motion matters require much greater specificity in pleading than your clients provided in the complaint I reviewed. Dates of the alleged downloads, which plaintiff (or affiliate) holds which copyright to which track, etc. must be specifically pleaded and proven. You are as familiar as I am with the results in other cases where RIAA's general allegations have been challenged. Let's get over that hurdle without unnecessary law and motion practice.

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. (Oakland is usually faster for me from Civic Center; Kaiser has a shuttle from Bart that beats SFO by about 20 minutes each way most of the time.)

Because your techs will want to do a full data recovery scan to pick up any "negatives" left behind from erased files, I suggest we create a mirror image on an unformatted hard drive purchased commercially in everyone's presence for that purpose. Other RIAA cases have handled the issue by Stipulation and Order although hopefully we can agree on the procedure without that sort of formality.

Once your tech people have confirmed that none of the titles set forth in your clients' complaint (or any other infringements) are or ever were on the drive, you will have irrefutable confirmation of the information provided to you by my office. From there, it should be a short trip to dismissal even if it means getting our clients to mediate Mr. Merchant's positive claims in the absence of an appropriate settlement.

Concluding Remarks and

Thank you for your continued professional courtesy. It is no fun becoming a litigation target as the result of your clients' widely-discredited tactics. Although I have a client to represent, I will do everything I can to keep that aspect of the case at the lowest level possible. You have a hard-nosed client to represent too; and I completely respect that.

Merl Ledford III

An Email Transmission of
LEDFORD LAW CORPORATION
805 West Oak Avenue
Visalia CA 93291-6033
Vox 559.627.2710/Fax 559.627.0717
Web Site: LedfordLaw.net
"Team-Based Transactions & Business Litigation in State and Federal Courts"

* Document published online at Internet Law & Regulation

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55 comments:

Clark said...

I get the voluntary dismissal. However, Mr. Ledford's letter said his clients (the Merchants) were willing to accept dismissal of the litigation for reimbursement of fees and costs ($6,880.25), a written apology, and mutual general release. If these conditions as outlined in the letter are not met, what then? Can the Merchants refuse the voluntary dismissal?

How would the RIAA not consider this a victory since it looks like a voluntary dismissal (cost to accused nearly $7k) is almost 2x their non-negotiable $3,750 settlement offer?

Doesn't sound to me like justice has been served ... yet.

Ray Beckerman said...

Under the federal rules, before the defendant has filed an answer, the plaintiff is allowed to dismiss the case.

fatbear said...

I notice that Mr. Ledford references the RICO class action suits possibly pending in CA - since his offer has obviously not been accepted, do his clients still have standing with regard to the possible RICO actions (despite the voluntary dismissal)?

It has been my feeling for quite a while now that the RIAA will only be reined in by a RICO action (or a very strong class action suit); if you get a chance, I think all your readers would appreciate your thoughts.

Anonymous said...

I presume that, since the "settlement" included a confidentiallity clause, as well as the $6750 payment, that, since we are reading the email it can't be confidential, and therfore I would summise that they didn;t cough up the $6750 either.

So, Mr Merchant avoided paying the $3750 settlement to the RIAA, but ended up with a $6750 legal bill ....

Some victory.

Jadeic said...

I agree with clark. However, if the dates on th documents are correct, it seems, as Ray suggests, that the RIAA were within their rights to file their Notice of Voluntary Dismissal on 26 March 2007 - the day before (albeit only a matter of hours) Merl Ledford III's email to Thomas McCarten Kerr sent at 1:11 AM. Therefore, one has to ponder - what caused the RIAA to back off so quickly? Furthermore does this now leave the way open for the Merchants to pursue the RIAA using any one of the many and varied defenses outlined in their lawyer's most excellent letter. This should become a template response in all cases.

Dave

jaded said...

Couple of questions:

- Dismiss without prejudice. That means they can still come back at them later if they so chose (dare I say, if they felt like they didn't get enough the first time).

- While an impressive letter, there were unique circumstances that aren't necessarily 'generalizable'. Strong language that others might be able to take advantage of, but no precedent (if I understand correctly). Given that, does this really further the cause and, if so, how?

Thanks.....

fatbear said...

Dave - it appears that the Voluntary Dismissal was filed on the 27th, not the 26th - at least that's what the doc says - in response to the letter, not prior to the letter.

So, I would guess it was filed as soon as they read Mr. Ledford's letter, which would have been at the start of business on the 27th.

Anonymous said...

I note that it was dismissed "without prejudice".

Didn't Lindor go after them to have the case dismissed with prejudice due to both resolve the case and to stop the possibility of the RIAA trying again later?

I wonder if Merl will think dismissal without prejudice is enough given his apparent opinion of the cases so far.

fatbear said...

And the dated block next to the signature (March 26) might be either a typo or reflective of the fact that the 3/27/07 1:11AM time stamp may either be UT or EDT, and an hard-working associate at the firm may still have been burning the midnight oil when the e-mail arrived late on 3/26 PDT; or that they had received a phone call from Mr. Ledford late on the 26th regarding his letter and had a "come to Jesus" moment. If I had to take a guess, I'd say it was a typo.

(Also not to forget that the 1:11AM time stamp may be when it was sent to Ray, which would probably have been AFTER it had been sent to the recipient.)

This time stuff is all getting too Monica Goodling for me.

Jadeic said...

Indeed - filed on the 27th but signed and dated by Thomas McCarten Kerr, Esq. on the 26th. The guy's in the wrong profession - he should be in a carnie tent as a psychic.

Dave

Michael Hoffman said...

That was beautiful.

Anonymous said...

I want someone to help me get my money back

Anonymous said...

Without prejudice? Does that mean that they might refile it later (possibly in the correct venue this time)? Or due to the ability of the plaintiffs to collect attorney's fees, will they back down here?

The only thing that disturbs me about this, though, is that I fear the next round of this battle will be in congress, where they'll try to make unfair new laws that give end users full liability, even if they had nothing to do with the infringement.

Ray Beckerman said...

yes it means they could bring it again....

AMD FanBoi said...

I've long hoped that someone would offer the RIAA Settlement Center a counter-settlement offer of: Drop the case now and I don't shoot you. Looks to me like someone finally has.

David EMery said...

Does the RIAA filing for voluntary dismissal (assuming it's within the federal rules Mr. Beckerman cites and disregarding the 'dates' controversy) end the case? Or does Mr Merchant & Mr Ledford have further recourse even after the RIAA filing?

Anonymous said...

So, Mr Merchant avoided paying the $3750 settlement to the RIAA, but ended up with a $6750 legal bill ....

You need to read more carefully. The plaintiff would be paying Mr. Merchant's bill, which is $6750.

Anonymous said...

At what point do RIAA, their officers and their lawyers become liable to criminal charges fro running an extortion racket, 'demanding money with menaces', or whatever it is called in the US?

Anonymous said...

I know absolutely nothing about law, but what would stop the accused from removing their hard-drive and replacing it with a 'clean' hard drive? From what I understand the only evidence the RIAA has is the IP addresses.

Alter_Fritz said...

technicly nothing, but if their "expert" does not find anything, they will cliam its not the right harddrive they want, and then they ask for your brothers ipod, and your uncles harddrive and your aunts hearing aid and so on....

There is/was an important hearing about other peoples HDDs/mp3 players pending in Lindor.
(don't have the calender in mind)

Michael Hoffman said...

You need to read more carefully.

I think you do, actually.

The plaintiff would be paying Mr. Merchant's bill, which is $6750.

There's no indication that plaintiffs have agreed to this any more than the defendant's other demands.

Ray Beckerman said...

Oral argument in UMG v. Lindor was on March 26th.

Fangs78 said...

about just using a "clean" harddrive also: You would have to have had "reasonable" usage on the computer for it to be accepted by RIAA/lawyers/experts...otherwise you could just buy a new harddrive and install Windows +applications, copy some documents into it and surf like a madman for a couple of days and send that...but there would be no evidence of usage on it ... from the date that the downloading took place...trust me, experts can retrieve ALOT of stuff from a HDD... Using magnetic sensors and shit.

Alter_Fritz said...

Ray informed us: Oral argument in UMG v. Lindor was on March 26th.

And, and? Was it good? Can we have a mp3 of it on YT later this evening or do we need to wait 6 month for a written transcript?
(No, I don't have a credit card nor a PACER account) ;-)

Will said...

Mr. Ledford should have just said "Don't make me FRCP 12(b)(6) you!"

Anonymous said...

This is my opinion, and I could be wrong

"How would the RIAA not consider this a victory since it looks like a voluntary dismissal (cost to accused nearly $7k) is almost 2x their non-negotiable $3,750 settlement offer?"

From what I understand about this issue just from reading the article, I am no lawyer or anything like that is that they have requested the plantiff to withdraw their lawsuit with predjudice.
Which means they have to drop the suit and they cannot bring it back up again in court and must pay the defendants legal fee's.

Now I havent seen any information as to whether the Plantiff dropped the lawsuit before the letter filed by the defendant was received which according to what I have read in this article would mean that the plantiff can drop the suit without predjudice.

So if the Response to the suit and the withdrawl of the suit happen the same day I have no idea when either would legally take effect?

Ray Beckerman said...

Transcripts cost money. Someone's going to have to purchase one for us.
It went very well. Mr. Altman made a lot more sense than Mr. Gabriel, and it is now clear to the Magistrate that Mr. Gabriel's statements about Mr. Raymond repairing his mother's computer were a smokescreen, since even Dr. Jacobson testified that the repair took place PRIOR to the alleged copyright infringement. Mr. Gabriel was not able to show how Mr. Raymond's computer was relevant to MS. LINDOR'S liability, nor could he show a reasonable likelihood that Mr. Raymond would take his desktop computer -- which is hooked up to the law firm by which he is employed -- over to his mother's house to do Kazaa file sharing on it on through his mother's internet connection so he could cause her to be a defendant in a copyright infringement suit instead of himself.

I.e. the absurdity of Mr. Gabriel's arguments was apparent.

Ray Beckerman said...

the lawsuit was dropped after plaintiffs received the letter.....

there is no way the riaa could consider this a victory.....

the withdrawal takes effect immediately, but is "without prejudice"....

Randy said...

Except that the Mr. Merchant can't consider this a victory either;

o Financially it has cost him more respond to the settlement than actually settle.

o The possibility of a refiling at a later date exists. There will always be the "fear" that the RIAA will refile.

Mr. Ledford CAN consider this a victory since he sucessfully prosecuted the lawsuit to his clients benefit


It's too bad that Mr. Merchant does not have the ability to file a counter-lawsuit.

AMD FanBoi said...

The very best part of the whole letter was where it said that it isn't the defendant's job to speculate for the plaintiffs just who the actual infringer might be. That's where the RIAA has really gone over the line of justice. Their attitude from the beginning has been, "We don't know who actually did it, but we can squeeze you enough to make you tell us everything we should have known from the beginning." Someone finally stood up and just said NO! And said it in a way even the judge can understand exactly what's going on here.

ryan said...

I think (and someone will correct me if I'm wrong), but the Merchants can still proceed with a few of their harassment claims for at least their legal costs. However with the case dropped most folks will write it off. The whole point of he settlement offer is that it is cheaper to pay them $3,750 than to even get some preliminary filings done, thus the extortion charges. However for some people it's worth 3k, 10k 50k etc to not have to claim they did something that they did not. Strangely pride and honor and ones word do still mean something in this day and age.

Anonymous said...

(Anon at 11:23am: RIAA is not paying $7K legal costs. They did not take the offer in the letter. They withdrew the claim rather than accepting the offer, which seems to be their right as a defence hadn't been filed with the court. Read the damn thing and know what you are talking about, person.)

Free PS3/Wii said...

Haha, keep fighting the bully!!!

Anonymous said...

Regardless if the lawfirm representing the RIAA took the offer or withdrew the case and the Merchants are stuck with a 7K bill. The fact of the matter here, is the lawfirm backed down. Mr. Ledford's intent was to give them options and they took door number #2, withdraw. I praise the Merchants for fighting and incurring the the 7K bill to stand up and slap the RIAA around a a little. This may not be a watershed event, but it does send a message to the RIAA, that their strong arm tactics are not working and as more and more people fight back, their suets will be dismissed and thrown out.

Anonymous said...

Randy, that is what the RIAA and its clients usually count on: That the defendant will pay what he is asked for, because hiring a lawyer and taking the case to a court would be more expensive than to settle.

Maybe it's just me, but this seems to be the trend. That way the plaintiffs can boast about more and more convictions and continue following the "the others turned in, you might be next" route.

rufus said...

Some people have paid tens of thousands of dollars to fight the RIAA and prove their innocence. Now it is shown that the RIAA will back down for seven. I call that progress. Who knows, maybe countersuits will prevail in the future for attorney fees reimbursement, distress caused by frivolous lawsuit, RICO ACT bullying, etc. Victories do not come cheaply at first. Sacrifices are made by passionate people who strive against injustice. If everyone held the logic, "Well, its cheaper to pay a small settlement than to pay more to prove my innocence." , we would be at the mercy of more than the RIAA. I have a lot of respect to those people fighting against this form of, for lack of a better word, extortion. I think Mr. Ledford's letter is written beautifly and expresses a multitude of feelings that I have against these cases. Obviously, it has convinced some at Sony to rethink a bit to back down so quickly.

Voodoo Idol said...

I'm not quite sure what the confusion is here. The linked document is just a copy of the document submitted to the court oficially dismissing the case. This by no means says that the rest of the requirements have not been met. It's just proof that the voluntary dismissal was submitted.

Ray Beckerman said...

there was no settlement... it was just a voluntary dismissal...

Anonymous said...

While this is a nice letter, much of it is standard "smokescreen". I thought the fact that the lawyer put the sob story about the clients in the first paragraph was to cover some inadequacies.

The core argument about how solid the evidence is based on the current procedures does not currently meet the level he describes as "malicious prosecution" under California law.

The lawyer was successful in convincing that he would make every step difficult for the RIAA. Come on, demanding that you "send a plane".

A small problem is that the lawyer is not being "collegial" despite his last paragraph attempt to be a little nicer. If and when the lawyers square off against each other again (if ever) such tactics sometimes can be counterproductive.

Jadeic said...

Transcripts cost money.

How much,Ray, as a ball park estimate?

Dave

Clark said...

It sounds like there are two types of "dismissal" and I'm not talking about the with/without prejudice stipulation. This voluntary dismissal that the RIAA just made for the Merchants is somehow different from the voluntary motion to dismiss that they made in Capitol v. Foster?

Did Mr. Ledford make a tactical/procedural error here as far as the Merchants and their potential recovery of litigation fees and costs are concerned?

Could the defense have filed some other type of motion that would have resulted in a motion to dismiss with prejudice and made them the prevailing party eligible for copyright act fees and costs?

I still don't see how this resolution will change the RIAA's strategy. If anything, it is a concrete example their settlement center can use to further intimidate people into settling. RIAA says, "You can pay our settlement fee, or pay 2x in attorney fees and we'll dismiss our case but reserve the right to bring it again at a later time."

Where and how do the Merchants get justice?

Anonymous said...

The question you should be asking is how much justice would the Merchants have gotten out of settling? How are you going to define "justice" when so many people don't even have the option of consulting a lawyer when being sued by the RIAA?

I think a lot of you are percieving this dismissal in a mislead light. While it is important that the defendant be financially compensated, there is a clear message being sent in this post, and the issue of reimbursement has not yet recieved coverage.

Anonymous said...

Transcripts from a deposition can usually only be purchased from a court reporter, and can cost up to $2/page. They usually run several hundred pages. You're paying the court reporter's salary for making the transcript in the first page. Other types of transcripts are much cheaper though, so it depends

BordRider said...

should we really be pointing out weaknesses in the case? you're doing the RIAA's lawyers' work for them!

seriously, they backed down for now...let's hope they learn a lesson.

Michael said...

On the topic of UMG v. Lindor, I did some technical dissection of the expert witness testimony. Before I post the link, I'd like to say I don't mean this as an advertisement for my own blog in any way. I just don't believe I can fit the information in a comment here. Ray, please feel free to delete this if it violates your policy, but please do take a peek. It may be useful in a future case, if not this specific one.

The summary is that I can show that it is perfectly reasonable to have a machine behind a router (wired or wireless) that has a public IP address and that anyone can make a very simple mistake to achieve that end.

Without further ado here it is.

Alter_Fritz said...

anonymous wrote: Transcripts from a deposition can usually only be purchased from a court reporter, and can cost up to $2/page"

Of course we all know that court reporters are not such bastards like the RIAA members are, and their work is actually beneficial for society and valueable so they should be compensated for their important work, and we don't want the "court reporter association of america" start a war on society.
But how about if society can get an mp3 of it for free??!
And how about if the court reporter's sponsor some selected written transcripts for us; "this excelent piece of RIAA nonsense was brought to you by xyz reporters. - - xyz reporters -objective transcribing for a fair price, call now friendly operaters stand by to transcribe all your needs

Serious!!
The job of a court reporter is important, providing mp3s with adds at the beginning of the recording and at the end, maybe even in between the recording when the parties go off record, and having those files CC-BY-NC licensed well tagged with casenames reporter names and contact info in p2p networks flowting could bring those profession a better awareness in society.
Courtreporters, if you people have a union or such, bring this to their attention as a marketing idea!

Take for example the mp3s of the DeCSS case deposition of Mr. Goldstein back in 2000*
Soundquality there isn't very good, but with 2007 hi-tech courtreporter equippment... mp3's could be a great public awareness tool for your valuable profession!


* http://www.2600.com/dvd/docs/

Alter_Fritz said...

Michael, your example with pictures is GREAT!

Take a screenshot, create a pdf -so that RIAA can not balk later that it isn't raw data like they understand it ;-) - and mail it to Mr. B. document recieve mailaddress.

This example is very easy to understand even for the most technology illiterate judge. 2 pictures debunk the RIAA experts!

Michael said...

I would be happy to send it to Mr. Beckerman in whatever format he wishes. He can either leave a reply for me here or on my site or email me through the link there.

Ray Beckerman said...

The link is fine, Michael. Thanks.

Anonymous said...

Am I the only one who thinks that this letter is great advertising for the Ledford Law Office (at least for Californians)?

Anonymous said...

Ahhhh. Admire the work of a true craftsman.

Matt Volatile said...

Can someone explain to me why the defendant's costs won't be met, seeing as this was a baseless, malicious lawsuit?

AFAIAA, in the UK all costs must be paid by the plaintiff in this type of case, even if the case is withdrawn rather than being dismissed...

Dave said...

And is the RIAA suing people in the UK? If not, your post probably explains why. ;)

Ray Beckerman said...

We don't know how it will all play out.

Alter_Fritz said...

" We don't know how it will all play out."

but we know now, how it might continue...

SONY v. Merchant -- Round 2