Saturday, March 31, 2007

Judge Denies RIAA Motion to Compel Ms. Lindor's Son to Turn Over His Desktop Computer; Orders Limited Deposition as to other devices

The Magistrate has denied the RIAA's motion, in UMG v. Lindor, to compel Ms. Lindor's son to turn over his desktop computer, reasoning that

Plaintiffs have offered little more than speculation to support their request for an inspection of Mr. Raymond's desktop computer, based on than his family relationship to the defendant, the proximity of his house to the defendant's house, and his determined defense of his mother in this case. That is not enough. On the record before me, plaintiffs have provided scant basis to authorize an inspection of Mr. Raymond's desktop computer.
The Court did, however, provide that the RIAA could take a limited deposition of Mr. Raymond to ascertain whether he had any other devices in his custody, possession, or control at the time the screenshot was taken, and whether he'd hooked them up to his mother's internet connection:

March 30, 2007, Order Denying RIAA Motion to Compel*

* Document published online at Internet Law & Regulation

Mr. Raymond is represented by Richard A. Altman.

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Defendant Opposes RIAA Motion to Dismiss Copyright Misuse & Declaratory Judgment Counterclaims in Lava v. Amurao

In a White Plains, NY, case, Lava v. Amurao, the defendant has filed papers opposing the RIAA's motion to dismiss his counterclaims for (a) a declaratory judgment of non-infringement, and (b) copyright misuse:

Memorandum of Law in Opposition to Plaintiffs' Motion to Dismiss Counterclaims*

Mr. Amurao is represented by Richard A. Altman, of Manhattan.

* Document published online at Internet Law & Regulation

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Friday, March 30, 2007

Mystery Document Filed in Elektra v. Santangelo

A very strange mystery document has turned up in Elektra v. Santangelo. This is the case in which Judge McMahon denied the RIAA's motion to dismiss "without prejudice", and said that it either had to prepare for trial and go to the pretrial conference on April 13th, or it had to enter into a stipulation of dismissal with prejudice no later than April 1st.

According to the court records the following bizarre mystery document was filed by the RIAA late Friday:

Mystery Document (Stipulation of Dismissal Signed by Richard L. Gabriel only and filed as a "Notice")

The lawyers among you will understand how bizarre this is. For the non-lawyers:

1. After the answer has been filed (which happened a long long time ago in this case) the only way a stipulation of dismissal can be entered into is if all parties sign it; this document was not signed by defendant's lawyer;

and

2. There is no such thing as electronic filing of a stipulation in this Court; any stipulation is supposed to be submitted to the Stipulations and Orders clerk by email for submission to the Judge.

* Document published online at Internet Law & Regulation

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RIAA Moves to Dismiss Counterclaims in Atlantic v. Boggs in Corpus Christi

The RIAA has made a motion to dismiss the defendant's counterclaims in Atlantic v. Boggs, in Corpus Christi, Texas.

Plaintiffs' Motion to Dismiss Counterclaims*

Mr. Boggs is represented by Charles Rogers of Conley Rose, based in Houston, Texas.

* Document published online at Internet Law & Regulation

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Brooklyn Magistrate Judge Rules that RIAA Does Not Have to Disclose MediaSentry Agreements in UMG v. Lindor

Magistrate Robert M. Levy has ruled in UMG v. Lindor that the RIAA does not have to turn over its agreements with MediaSentry.

The Magistrate made no findings as to privilege or confidentiality, but held that the documents were irrelevant:

March 30, 2007, Granting RIAA Motion for Protective Order*

Ms. Lindor's attorneys filed an objection to the Magistrate Judge's order:

Defendant's Notice of Objection to March 30, 2007, Granting RIAA Motion for Protective Order Concerning MediaSentry agreements*

* Document published online at Internet Law & Regulation

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Mississippi Defendant Asks Court to Dismiss RIAA Complaint in Elektra v. Dennis

George Dennis, the defendant in Elektra v. Dennis, in Jackson, Mississippi, has moved the dismiss the complaint, or in the alternative for summary judgment dismissing the case:

Motion to Dismiss Complaint or for Summary Judgment Dismissing Complaint*
Defendant's Brief in Support of Motion to Dismiss Complaint or for Summary Judgment Dismissing Complaint*
Defendant's Affidavit in Support of Summary Judgment Dismissing Complaint*

The defendant is represented by Karen Spencer, of Spencer & Spencer, of Jackson, Mississippi.

* Document published online at Internet Law & Regulation

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Judge Rules RIAA's Motion for Extension of Time is Moot Due to Filing of Renewal Motion in Warner v. Stubbs

In Warner v. Stubbs, in Oklahoma, the RIAA had moved for an extension of time in which to file its reply to Ms. Stubbs's counterclaim.

Thereafter it made a renewal motion, asking the Court to change its prior ruling on the RIAA's motion to dismiss counterclaim.

The Court has held that the making of the renewal motion has mooted the RIAA's request for more time to file a reply.

March 30, 2007, Order Denying Motion for Extension as Moot*

* Document published online at Internet Law & Regulation

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Law.Com Legal Blog Watch Reports: "RIAA Faces Some Pushback"

Legal publisher Law.Com reports in its Legal Blog Watch:

RIAA Faces Some Pushback

For a while, it seemed that the RIAA's strategy of suing large numbers of people who'd allegedly downloaded music illegally was working. Rather than spend money to fight the suits, many found it more financially favorable to settle. But this week, RIAA has received some resistance in two matters. In one, it eventually decided to back down.

First, Al Nye the Lawyer Guy reports here that the University of Maine has told the RIAA to "take a hike" in response to the group's demand that the school turn over names of students who allegedly downloaded copyrighted materials. And this post at Legal Pad tips us off to a powerful letter that a Visalia, Calif., solo "slung against the record-industry goliath," causing it to back down.


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Thursday, March 29, 2007

University of Wisconsin-Milwaukee Joins Madison campus in Refusing to Forward RIAA's collection letters

The University of Wisconsin at Milwaukee has joined its sister school, University of Wisconsin in Madison, and also the University of Maine, in refusing to send along the RIAA's collection letters. Here is a copy of the letter the University's students received from the school:


Encl: Illegal File Sharing at UWM

SUBJECT: Illegal File Sharing at UWM

This announcement is being sent to all known UWM faculty, staff and
student e-mail addresses.

The Recording Industry Association of America (RIAA) has recently
increased its threat of lawsuits against students and others who engage
in illegal digital file sharing. This is in response to perceived
violations of the Digital Millennium Copyright Act of 1998, which
specifically addresses copyright infringement of digital materials such
as music, movies and software.

As you may know from recent press reports, the RIAA is now targeting
individuals who live in university residence halls or use university
computing resources. Because the RIAA can only identify violators by
their ISP (Internet Service Provider) identifier, they are sending
letters to universities requesting that these letters be forwarded to
students, faculty and staff.

The RIAA notified UWM of its plans to send settlement proposal letters
for individuals on the UWM campus whom they believe are guilty of
violating federal copyright laws. These letters request that a monetary
settlement be made by the violator in lieu of court action by the RIAA.

After consultation with UW System, our own legal counsel and with our
understanding of federal law, UWM has decided that these letters will
not be passed on to individuals. However, should RIAA send UWM a lawful
subpoena for users’ account information, UWM will comply.

It is important to be aware of copyright law and avoid illegal P2P
(peer-to-peer) file sharing.

For more information, visit the UWM Information Security Web Site at
https://www3.uwm.edu/imt/security/index.cfm.

If you have questions, please e-mail dmca@uwm.edu.





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Judge Rejects RIAA's New Attempt to Extend Attorneys Fee Discovery in Foster; Orders Production of Expert Reports by April 9th or be precluded

The RIAA's latest attempt to extend the discovery deadline for "reasonableness" of defendant's attorneys fees in Capitol v. Foster has been rejected by the Court.

Judge Lee R. West ordered the RIAA to produce its expert reports by April 9th at 10 AM, or else be precluded from introducing any expert reports:

March 29, 2007, Order Granting Motion to Compel*

The judge noted in a footnote that the RIAA's lawyers were operating under an "apparent misunderstanding of the Court's discovery orders".

The depositions of the RIAA's "expert" on attorneys fees is scheduled for April 11th.

The deadline for discovery on the "attorneys fees" issue is April 16th.

Ms. Foster is represented by Marilyn Barringer-Thomson of Oklahoma City.

* Document published online at Internet Law & Regulation

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George Ziemann of AzOz Music Advises College Students: Don't be a "Chump"

Interesting opinion piece on AzOz:

Before You Pay the RIAA...

By George Ziemann -- March 24, 2007

There's a reason the RIAA is offering a "discount" on this year's series of extortion demands from college students. They want to get as many chumps as possible to roll over and fork up cash and they need for you to do it right away because their window of opportunity is closing. The jig is almost up.

A couple of days ago, there were two Slashdot articles which appeared, concerning two separate cases wherein the RIAA is about to be spanked -- Deborah Foster and Patti Santangelo. If you follow the links, pay particular attention to the comments by NewYorkCountryLawyer, which is Ray Beckerman.

Foster already "won" her case in the sense that the RIAA gave up. Foster wasn't going to roll over and she was close to having a trial. Since the RIAA really had no evidence in the first place, they dismissed the case to avoid trying to convince a jury their flimsy version of reality. It was dismissed with prejudice, which means the RIAA failed to prove its case and they can't come back and accuse her of the same offense later.

The judge also ruled that the RIAA had to pay Foster's attorney's fees. When the RIAA saw the bill, they said it was too high. The judge said something to the effect of, "Oh really? How much did you spend?" To this query, the RIAA has responded by a) ignoring it for a while, b) telling the judge he made a mistake in awarding attorney fees in the first place, and c) offered their billing records as long as the court agrees they're top secret and no one can look at them.

Complete article.


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Wednesday, March 28, 2007

In Warner v. Stubbs, RIAA Now Promises Not to Sue Ms. Stubbs Again, Asks Judge to Change Mind About Declaratory Judgment

In Warner v. Stubbs, where the RIAA previously was granted permission to dismiss its claim "without prejudice" (meaning it can sue again on the same claim), the RIAA has now changed its mind and stated that it now "covenants not to sue Ms. Stubbs", and is asking the Court to dismiss Ms. Stubbs's counterclaim for a declaratory judgment and attorneys fees.

RIAA Renewal Motion Containing Covenant Not to Sue and Asking for Dismissal of Counterclaims*

* Document published online at Internet Law & Regulation

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Defendant Moves in Capitol v. Foster to Preclude Expert Testimony or to Compel Expert Discovery on Attorneys Fees

In Capitol v. Foster, where the RIAA has asked for discovery into the "reasonableness" of defendant's fees, the RIAA has indicated that it will be using an 'expert witness' on the attorneys fees issue, but has never (a) identified the witness, or (b) produced the requisite "expert witness report" required by the Federal Rules of Civil Procedure, thus preventing defendant from requesting documents and a deposition from the expert. Defendant, on the other hand, produced her expert report last year.

In view of the imminent deadline for the completion of discovery on the attorneys fees issue -- April 16th -- Ms. Foster's lawyer, Marilyn Barringer-Thomson, has filed a motion to either (a) preclude plaintiffs from calling an expert witness, or (b) direct the plaintiffs to produce a report, document discovery, and the witness for a deposition:

Defendant's Motion to (a) Preclude Expert Testimony by Plaintiffs or (b) Compel Expert Discovery*
RIAA Opposition Papers*
Defendant's Motion to Strike RIAA Opposition Papers*

* Document published online at Internet Law & Regulation

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Letters Exchanged in UMG v. Lindor Between RIAA Lawyer and Lawyer for Ms. Lindor's Son

Subsequent to the March 26th oral argument in UMG v. Lindor over the RIAA's motion to compel Ms. Lindor's son, who lives 4 miles away from her, and is not a party to the action, to turn over his computer, the RIAA lawyer sent a letter to Magistrate Levy. Mr. Raymond's attorney, Richard A. Altman, questioned the motivations of the RIAA lawyer in sending the letter:

March 27, 2007, Letter of Richard L. Gabriel to Magistrate Levy*
March 27, 2007, Letter of Richard A. Altman to Magistrate Levy*

* Document published online at Internet Law & Regulation

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Tuesday, March 27, 2007

Judge Protects 10-year-old child: Rules that Kylee Andersen's Deposition Must be By Telephone or Videoconference Only

In Atlantic v. Andersen, where the RIAA was insisting on taking the deposition of a 10-year-old child face-to-face, and refused to agree that the deposition would be by telephone or videoconference only, the Court ruled against the RIAA, holding that the deposition of the child must be by telephone or videoconference only.

The March 27th docket entry states:

Record of Order by Judge Ashmanskas - GRANTING defendant's motion for limitations of depositions of Tanya Andersen and Kylee Andersen with the condition, as requested by plaintiffs, that defendant may not take a break from her deposition when a question is pending.



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University of Maine Refuses To Forward RIAA Letters to Its Students

Following the lead of the University of Wisconsin, now the University of Maine has similarly refused to forward the RIAA's collection letters. See this report from The Maine Campus:

UMS refuses to hand student info to RIAA
Tony Reaves
Issue date: 3/26/07 Section: News

The University of Maine System has refused a request from the Recording Industry Association of America to produce names of students who allegedly downloaded copyrighted materials.

The system has also opted not to forward the RIAA's pre-litigation letters offering settlements to those students, although the schools those students attend will inform their students of the letters and give them a chance to pick up the letters if they so choose.

At the University of Maine, students with pending RIAA lawsuits were told on Friday.

"It's not the university's role to, in effect, serve papers on our students for another party," John Diamond, spokesman for the university system, said of the decision.

****


Diamond said the RIAA's request for student information asks the system to violate the Family Educational Rights and Privacy Act, which bars the UMS from divulging information not considered public.

Complete article

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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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Model Letter for Lawyers Representing Defendants in RIAA Cases

I recently came across this letter in my mailbox. It was written by California attorney Merl Ledford III, of Visalia, California, to the RIAA's lawyer. Thought my readers might enjoy it:

*****************************************


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"


Commentary & discussion:

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Saturday, March 24, 2007

Parody of RIAA from BBSpot: "RIAA Updates Mission Statement"

Ed. Note. Couldn't help posting this hilarious article from BBSpot:

Thursday, March 22 12:00 AM ET
RIAA Updates Mission Statement to Reflect Priorities
By Brian Briggs

Los Angeles, CA - The RIAA has updated its mission statement from "Our mission is to foster a business and legal climate that supports and promotes our members' creative and financial vitality" to "Our mission is to maximize hatred for the music industry by using creative legal and innovative technological methods which will further destroy our member's creativity and financial vitality." The organization hopes the change will more accurately reflect their long-term goals.

Chairman and CEO of the RIAA Mitch Bainwol said, "This change allows us to focus on our goals of ridding ourselves of annoying artists and consumers completely. The Internet has made this possible. In the days before the Internet only a few artists and industry insiders hated the RIAA, now hatred for the RIAA is at an all-time high."

Complete article

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"Universities Get Miffed with RIAA" -- The Inquirer

This report in The Inquirer:

Universities get miffed with RIAA

Piracy witch hunt deemed a waste of time

By Nick Farrell: Friday 23 March 2007, 08:30
THERE ARE GROWING signs that US Universities are getting fed up with RIAA demands that they sort out piracy on campus.

The RIAA has been running a high-profile campaign to get college students that it thinks have been involved in illegal file trading to settle lawsuits against them at a "discount".

The plan depends on the RIAA getting the Universities to identify and turn over the names of offending students so that they can send them the threatening letters.

However it seems that two universities are telling the RIAA to go forth and multiply.

Complete article

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Friday, March 23, 2007

RIAA Insists on Deposing Tanya Andersen's 10-year-old daughter

The RIAA is insisting on deposing Tanya Andersen's 10-year-old daughter in Atlantic v. Andersen, in Oregon. The child was 7 years old at the time of the alleged infringement.

The record labels insisting on taking the child's deposition are:
-Atlantic Recording
-Priority Records
-Capitol Records
-UMG Music and
-BMG Music.

RIAA Opposition to Limitation of Depositions*
Ms. Andersen's Response*
Lybeck Declaration*

This is the case in which Ms. Andersen counterclaimed against the RIAA, under Oregon's RICO statute and other laws.

Ms. Andersen is represented by Lory Lybeck of Seattle, Washington.

* Document published online at Internet Law & Regulation

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In Capitol v. Foster, Court Directs RIAA to Turn Over Attorney Billing Records to Ms. Foster's Lawyer, Rules that Documents Are Confidential

In Capitol v. Foster, the Court directed the RIAA to turn over its attorney billing records to Ms. Foster's attorneys by March 26th, rejected the RIAA's request that the records be placed under seal, and directed that the documents shall be treated as confidential by Ms. Foster's lawyers pending further order of the Court:

March 22, 2007, Order, Granting Motion to Compel, Rejecting Request to Place Documents Under Seal, and Directing that Documents are Confidential Pending Further Order of the Court*

* Document published online at Internet Law & Regulation

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RIAA Asks Court to Put Its Attorneys Billing Records Under Seal in Capitol v. Foster

The RIAA filed opposition papers to the defendant's motion to compel in Capitol v. Foster, arguing that their attorney billing records should be treated as confidential and filed under seal with the Court:

Opposition to Motion to Compel*
RIAA Protective Order Motion*

* Document published online at Internet Law & Regulation

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RIAA Files Reply Papers Telling Judge his Decision Awarding Attorneys Fees Was "Erroneous" in Capitol v. Foster

The RIAA has filed reply papers in Capitol v. Foster, repeating their argument to the Judge that his prior decision, which directed that Ms. Foster be reimbursed by the RIAA for her reasonable attorneys fees,was "erroneous":

RIAA Reply Papers in Further Support of Reconsideration Motion*

* Document published online at Internet Law & Regulation

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Wednesday, March 21, 2007

Judge Denies RIAA Motion to Dismiss Without Prejudice in Elektra v. Santangelo

Judge McMahon has denied the RIAA's motion to dismiss its case against Patti Santangelo without prejudice in Elektra v. Santangelo, saying Mrs. Santangelo "is entitled to have her legal status resolved one way or the other."

The judge rejected the RIAA's intimation that Ms. Santangelo had defrauded the Court, saying "Nothing in any papers filed by plaintiffs suggests IN THE SLIGHTEST that Mrs. Santangelo has ever perpetrated any fraud on this court." (capitals in the original).

The judge ruled that either (a) the RIAA must stipulate to discontinue with prejudice no later than April 1st, or (b) the parties must attend the April 13th status conference with a pretrial order in hand:

Order Filed march 21, 2007, Denying Plaintiffs' Motion to Dismiss Without Prejudice*

* Document published online at Internet Law & Regulation

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RIAA Asks for More Time in Warner v. Stubbs to file reply to counterclaims

In Warner v. Stubbs in Oklahoma, where the Court denied the RIAA's motion to dismiss Ms. Stubbs's counterclaims, the RIAA has asked the Court to extend its time to file a reply to the counterclaims:

Motion for extension of time to file reply to counterclaims*

* Document published online at Internet Law & Regulation

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Debbie Foster Moves to Compel Enforcement with Order Directing Turnover of Records

In Capitol v. Foster, defendant has moved for an order compelling compliance with the Court's March 15th order directing the RIAA to turn over its attorneys billing records, in light of the RIAA's statements that it was going to make a new "protective order motion" seeking confidentiality, and file "significant" briefs in support thereof:

Motion to Compel Compliance with March 15th order*

* Document published online at Internet Law & Regulation

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RIAA Adds New Colleges and Students to its Hit List

p2pnet.net reports that the RIAA has sent 405 more blackmail letters, adding to its hitlist an additional 23 universities, including Boston University (50 pre-litigation settlement letters), Columbia University (20), Dartmouth College (11), DePaul University (18), Drexel University (20), Ferris State University (17), Ithaca College(20), Purdue University (38), University of California - Berkeley (19), University of California - Los Angeles (21), University of California - Santa Cruz (17), University of Maine system (27), University of Nebraska - Lincoln (25), University of Wisconsin system (66, including the following individual campuses: Eau Claire, Madison, Milwaukee, Parkside, Platteville, Stevens Point, Stout, and Whitewater), Vanderbilt University (20), and Virginia Polytechnic Institute & State University (16). This follows on the heels of the offensive it launched last month targeting 400 students at 13 institutions.

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New Contested Case in Houston, Texas, Atlantic v. DeMassi

A new contested case has been brought in Houston, Texas, Atlantic v. DeMassi.

Answer and Counterclaims*
Exhibit A (Original Complaint in Arista v. LimeWire)*
Exhibit B (November 2006 Report to USPTO on Filesharing Programs)*

Ms. DeMassi is represented by Donald Scott Mackenzie of Dallas, Texas.

* Document published online at Internet Law & Regulation

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Tuesday, March 20, 2007

University of Wisconsin Refuses to Go along with RIAA; Will Not Send RIAA Letters to Students

p2pnet.net reports:

University ignores RIAA blackmail

p2pnet.net news:- At least one American university has the courage to stand up for its students, refusing to cave in to blackmail threats being spammed to schools across the US by the Big 4 music cartel's RIAA.

The University of Wisconsin says it won't be a Big 4 copyright cop, or act as their runner in extorting 'settlement' money from students.

RIAA is short for Recording Industry Association of America, but only one of the Big 4, Warner Music, can be said to be American, and even it's run by a Canadian. The other three are EMI (Britain), Vivendi Universal (France) and Sony BMG (Japan and Germany).

They RIAA is trying to terrorize students into become compliant consumers of Big 4 music 'product'.

"The University of Wisconsin went against the national trends Friday by warning students about its policy regarding illegal file sharing but refusing to forward settlement letters to violators from the Recording Industry Association of America," says Nick Penzenstadler in the University of Wisconsin's online Badger Herald.

"These settlement letters are an attempt to short circuit the legal process to rely on universities to be their legal agent," the story quotes Brian Rust, communications manager for the UW Division of Information Technology, as saying.

Complete article

Comment: I am so grateful to the University of Wisconsin for standing up to the RIAA's reign of terror, and call upon all universities who are asked to be henchmen for the RIAA to take a similar stand.
-R.B.


Commentary & discussion:

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Special Thanks to Dave Hendricks of the Post Online for bringing this story to my attention.
-R.B.


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