For years, the RIAA has been bullying
all sorts of people with lawsuits over file sharing -- but the evidence they use has always been weak, at best
. In the early years, before most people recognized this, they were forced to settle. But, more recently, lawyers have realized that pointing out how weak the evidence is will often make the RIAA turn and drop the case
. They usually try to get out of paying legal fees, but even that's becoming more difficult
. In the latest case (as usual, pointed out by Ray Beckerman) a strong letter pointing out all the problems
with the RIAA's case has resulted in a very quick voluntary dismissal of the case
. The lawyer's letter is absolutely worth reading, with the following being a key segment:
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. See also expert witness statement of Prof. Pouwelse and Dr. Sips 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.
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.