Tuesday, April 10, 2007

SONY v. Merchant -- Round 2

After backing down last week upon receipt of a letter from Visalia, California, attorney Merl Ledford III, in SONY v. Merchant, the RIAA has initiated a new round of litigation, starting a "John Doe" action and threatening to take depositions of Mr. Merchant's family and to compel production of their computer hard drives:

April 3, 2007, Letter, of Thomas Kerr*
April 9, 2007, Letter of Merl Ledford III*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net
Visalia Times-Delta

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

17 comments:

Megan said...

I'm confused. If the RIAA wishes to depose the Merchant's children and gain access to the Merchant's hard drive, etc., why are they filing more Doe litigation?

Mr. Ledford, in his earlier letter and reiterated in this most recent document, offered them access to the hard drive. In fact, he even offered transport from the Bay Area out to Visalia. Why wouldn't HR&O avail themselves of this courtesy without going through the courts yet again?

I don't know why any of the RIAA's tactics surprise me anymore, but it seems I'm stunned once again on a weekly basis.

Todd said...

You know, this reminds me of the final exchange between Mr. Morden and Londo Mollari. I think the RIAA, like Morden, is about to find out that no, neither Mr. Mollari nor Mr. Medford are, in fact, bluffing.

And we all know where Mr. Morden's head ended up after that. :)

Megan said...

Bonus points for the Babylon 5 reference, todd. :)

So many heads, so few pikes. I also believe that Mr. Medford is not bluffing. I most certainly hope that the judges in Fresno take a dim view of these shenanigans and that the Merchants are relieved of this stress quickly, with as little pain as possible, and at the RIAA's expense.

AMD FanBoi said...

Interesting. Mr. Ledford OFFERS to provide the opportunity to collect significant evidence BEFORE the filing of any lawsuits, and is ignored. Again the RIAA shows their Sue First - Investigate Afterwards mentality.

Also, the new suit was filed ex parte, even though it is reasonably understood just whom they're suing. I thought ex parte was only supposed to be allowed in rare circumstances.

"Violation of the Federal Rules solely to obtain discovery from non-parties whom neither your law firm nor your client have probable cause to sue constitutes an abuse of the Court's process."

Now there once again is a wonderfully clear sentence explaining much of what is wrong about the entire RIAA litigation process. So why haven't the judges sanctioned them over this well before now? And is this another illegal joinder?

Mr. Ledford just isn't backing down. That's another Throw Down the Gauntlet, In Your Face, reply to the bullies representing the RIAA.

Megan said...

I actually think this particular joinder might be okay... if they're seeking people responsible for alleged illegal activity on the AOL account identified as belonging to the Merchants. The joinders they've engaged in previously have often been as many as 150 Does in completely unrelated cases (different accounts, different families, different everything.)

However, I'm still not seeing how they're justifying a Doe filing at all in the first place, which is independent of whether or not the joinder is appropriate.

Todd said...

I think what they're trying to do is get the discovery without having to formally make an accusation against the Merchants. Given the description of their situation from the first letter, the RIAA may be afraid of the can of worms they'll have opened if they make accusations and then fail to turn up hard evidence. This feels like an attempt to find out whether they'll find anything or not before opening themselves up.

Alter_Fritz said...

head comparison:
"Kerr" vs. "Morden"

(and no, I haven't watched the Series, so I don't know what you are talking about)

Todd said...

Towards the end of the Shadow War, one of the last bases of the Shadows (the uber bad-guys) is a small continent on Centauri Prime. Morden's absolutely positive Londo's bluffing when he says he's going to take care of that.

Morden: "So what are you going to do? Blow up the continent?"
Mollari: <turning to look out the window> "Well, as a matter of fact," <holds up detonator> "yes." *click* *KABOOM*
Morden: <absolutely gobsmacked look>
Mollari: "Take him away."

Megan said...

Londo had few redeeming qualities. Morden had none. In the end, Londo killed Morden and had his head displayed on a pike.

I think Morden-as-RIAA comparisons are interesting... Vir (Londo's aide) put it best... when asked "What do you want?" by Morden, Vir responded:

"I'd like to live just long enough to be there when they cut off your head and stick it on a pike as a warning to the next ten generations that some favors come with too high a price. I would look up into your lifeless eyes and wave, like this [smiles and waves his fingers at Morden]. Can you and your associates arrange that for me, Mr. Morden?"

Now, I dislike violence so I don't actually want RIAA heads on the proverbial pikes, but yes, they should be punished, harshly, and serve as a warning to the next ten generations...

Michael Caldwell said...

It seems to me that there is a case in the 11th Circuit involving an attorney named Michael Byrne where the court sua sponte granted ENORMOUS Rule 11 penalties against an attorney who, according to the Court, had not properly investigated a medical malpractice claim referred to him to serve as out-of-state counsel's local counsel. I know the facts of the case and the players, and I think the District Court and 11th Circuit got the facts entirely wrong. However, the case does stand for the proposition that an attorney has a due diligence duty before signing his name to a pleading. I wonder whether this case could be used against the RIAA's counsel.

ryan said...

My wacko theory of the week:
The RIAA was seen to back down to a simple (ok a really good) letter. Their process of 'sue them all' looses too much ground if they give in that easily. Thus thus they have to bring the hearing back in some fashion and so they went with this odd path. Personally I am going to laugh when one judge officially rules the whole thing frivolous based on the MediaSentry info and then the RIAA has to scramble to get out of all of the hundreds of open cases they have left with out either loosing their right to enforce their copyright on all listed songs or having to pay hundreds of thousands of dollars in the other party's legal fees.

Ray Beckerman said...

Bear in mind that their game plan is to do this new "John Doe" cas ex parte...... i.e. no pesky defendant's lawyers around to correct their lies. So we won't know what kind of lies they are telling the judge, and there will be no one pointing out to the judge about Dr. Doug Jacobson and all the rest of the fraud.

Alter_Fritz said...

but Ray, from reading this "In the event you choose to proceed with your proposed ex parte discovery request, we will expect your office to provide Judge Wanger with [many stuff that has its basis in] Cal Rul Prof. Conduct, Rules 3-200, 3-210, 5-200, and 5-220"
I understand that their gameplan can not work under the rules of professional conduct unless Thomas "RIAA-Kidface" McCarten Kerr risk that he will get very hard punished once Mr. Ledford told the Judge the stuff that McCarten Kerr might not want to tell the judge in the ex parte procedure.

Do you know Thomas closer? Is he really so unexperienced naive if not to say stupid that he will risk sanctions for violations of professional conduct as such a young (looking) lawyer he is that might otherwise would have a great future if he refuse to work for "the Shadows"?

Alter_Fritz said...

p.S. for Thomas: in case you don't rember the Rules Mr Ledford was refering to, here you go: Rules of Professional Conduct

HTH

Caladil said...

alter_fritz: "I understand that their gameplan can not work under the rules of professional conduct unless Thomas "RIAA-Kidface" McCarten Kerr risk that he will get very hard punished once Mr. Ledford told the Judge the stuff that McCarten Kerr might not want to tell the judge in the ex parte procedure."

Like, for example, Fonovisa v. Does 1-41? Where the court ordered the RIAA to cease joining Does? That'd be a really interesting one for the RIAA to explain in this case.

Ray Beckerman said...

Now you're cooking, caladil... think a contempt motion might get their attention?

Todd said...

I think this joinder might not be a problem. What might be a problem for the RIAA is their previous filing. I think the fact it was withdrawn doesn't make it cease to exist entirely. If the Doe suit is about the same set of downloaded files, Mr. Ledford might be able to argue that the earlier filing shows that the RIAA already knows the identities they're trying to use the Doe suit to find out and shouldn't be allowed to use the Doe suit to hide from the legal consequences of actually naming the parties they've identified. After all, Mr. Ledford offered the RIAA exactly what the RIAA is demanding discovery on. With the history on this one, I think a judge will recognize an attempted end-run when he sees one.