RIAA Drops Another Case After Lawyer Points Out How Weak The Evidence Is

from the on-and-on-and-on dept

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 ยงยง 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.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Pete, Mar 28th, 2007 @ 2:48am

    And burn it shall.
    Glad to see the house of cards the RIAA has buit for itself is starting to blow over.

    Now where is that wolf?

    reply to this | link to this | view in thread ]

  2. identicon
    Nunya, Mar 28th, 2007 @ 2:51am

    Its too funny

    Its just too funny, I am so glad that the RIAA is getting smacked down again

    reply to this | link to this | view in thread ]

  3. identicon
    Cixelsid, Mar 28th, 2007 @ 4:22am



    reply to this | link to this | view in thread ]

  4. identicon
    Dam, Mar 28th, 2007 @ 4:56am

    Now There's An Attorney.....

    that may actually earn his fee.

    reply to this | link to this | view in thread ]

  5. identicon
    Suprised, Mar 28th, 2007 @ 5:14am

    It's good to see that there are SOME lawyers out there that earn their money! kudos

    reply to this | link to this | view in thread ]

  6. identicon
    You never know, Mar 28th, 2007 @ 5:27am

    AT LONG LAST!!! Extortion is extortion, about time the court system figured it out....

    reply to this | link to this | view in thread ]

  7. identicon
    thecaptain, Mar 28th, 2007 @ 5:40am


    I finally found a lawyer I like!

    reply to this | link to this | view in thread ]

  8. identicon
    Jon, Mar 28th, 2007 @ 6:05am

    Slightly OT: Legality of downloading torrent of b

    With the full understanding that any statements made here are simply statements/opinions and not legal advice.

    What is the validity of a DMCA claim of infringement on a torrent download of a broadcast TV show? I must be missing something, but if a show is broadcast over the airwaves meaning it was not pirated and it is being shared via BT in a non-commercial way, doesn't that fall under fair use? Isn't it essentially the same as recording the show from the TV and giving it to a friend? The only difference I see here is the media it is being shared on.

    reply to this | link to this | view in thread ]

  9. identicon
    w00t, Mar 28th, 2007 @ 6:28am

    Straw will burn. That last line alone made this article worth reading. The RIAA is building a straw house. Let's burn it down!!!

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, Mar 28th, 2007 @ 6:30am


    reply to this | link to this | view in thread ]

  11. identicon
    Jack Sparrow, Mar 28th, 2007 @ 6:32am


    Hi mates,

    Arrrrgh! One battle win, not the war.
    But its a good begin of the end for this "moneymind" RIAA CIAA, MIAA, PIAA, whatever!!!!!!

    Rhun for everibody!!!


    reply to this | link to this | view in thread ]

  12. identicon
    comboman, Mar 28th, 2007 @ 6:46am

    Re: Slightly OT: Legality of downloading torrent

    The legality of recording over-the-air television for personal use was established in the betamax case almost 30 years ago; however, sharing that recording with a friend is likely going beyond personal use. Distributing it widely over the internet (even without generating a profit) is definitely going beyond personal use.

    reply to this | link to this | view in thread ]

  13. identicon
    Casper, Mar 28th, 2007 @ 6:58am

    Re: Re: Slightly OT: Legality of downloading torr

    The question is how broad the personal use umbrella really is. What if I wanted to upload a copy of a show to watch while traveling? Just because someone can get to my personal copy, doesn't mean that I want them to. There are no provisions saying that I must guard the content, just that I can not redistribute it. It was intended to prevent people from profiting from the works of another.

    That's the problem I have with so many of these lawsuits. They target people as if they are a deliberate copyright violator, but there are not provisions for negligence. If the person legitimately did not know that their content was available for other people to download, are they really responsible for the same damages as an intentional redistribution? Sure, they might be responsible of redistribution of a product, but it is not copyright infringement as the copyright was intended to prevent. They are not making money off it and I doubt that the courts will continue to uphold these ridiculous claims much longer.

    reply to this | link to this | view in thread ]

  14. identicon
    Francis, Mar 28th, 2007 @ 7:03am

    Law Firms name - for those who need it

    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"

    reply to this | link to this | view in thread ]

  15. identicon
    Erv, Mar 28th, 2007 @ 7:23am

    Very Good.

    Not sure what it says exactly but I like it.....

    reply to this | link to this | view in thread ]

  16. identicon
    drakeshadowstone, Mar 28th, 2007 @ 7:51am

    Re: Slightly OT: Legality of downloading torrent

    I think that you are right on that score. Both sides are going to argue over this for a long time coming. For most I think, there is no difference between recording a show from the airwaves and loaning the tape to a friend and sharing a torrent. Wait, there is a difference, some corporation isnt getting the share of the money.

    reply to this | link to this | view in thread ]

  17. identicon
    Robert, Mar 28th, 2007 @ 7:56am

    Good Lawyers

    We need to get Merl Ledford III (the lawyer who wrote this magnificent rebuttal) to help out Julie Amero in her "porn popup" case!!!

    reply to this | link to this | view in thread ]

  18. identicon
    Drunken Philosopher, Mar 28th, 2007 @ 8:00am

    Summary for Erv

    Erv said:
    > Not sure what it says exactly but I like it.....

    I'll try to summarize by paragraph:

    1. The people you're relying on for evidence aren't experts, and if this goes to trial they'll be laughed at.

    2. So, if that's all you've got, go home.

    3. Just because the defendant ignored your ridiculous demands, doesn't mean he's admitting guilt.

    4. Seriously, just because the defendant ignored you, /doesn't/ mean he's admitting guilt. It's basically the same as hanging up on a telemarketer. By the way, die in a fire.

    (Ok, that last sentence might have mildly overstated the original message.)

    reply to this | link to this | view in thread ]

  19. identicon
    Davey, Mar 28th, 2007 @ 8:33am

    Gratifying, but...

    The only way to stop the RIAA and their kind is to make them hurt a lot more than they do by just losing a case or two. Or even paying their victims' legal costs. What they are doing amounts to extortion, plain and simple. What will really change the game is when RIAA, its officers and its lawyers are charged with extortion, harassment, and whatever else fertile legal minds can come up with, in civil and criminal court. I don't understand why the defense lawyers and outfits like the ACLU and EFF aren't going that next step. I could see disgusted juries awarding huge amounts to the RIAA's victims.

    reply to this | link to this | view in thread ]

  20. identicon
    Colline Sherby, Mar 28th, 2007 @ 9:05am


    Does this advise us to ignore any/all communication when challenged by the RIAA, as a means of defence?
    I would have preferred to take a much more aggressive stance like the letter by 'Davey', and tell them to FO or I'll sue the RIAA for 'Extortion', 'Racketeering', and 'Illegal Harassment'.
    Although in my heart I feel that we all should have been donating a small fee to the 'File Sharing Enterprises' to reward their enterprise, and help fight these legal issues.

    reply to this | link to this | view in thread ]

  21. identicon
    Anonymous Coward, Mar 28th, 2007 @ 9:58am

    I love it, "Straw will burn."

    reply to this | link to this | view in thread ]

  22. identicon
    Matt Bennett, Mar 28th, 2007 @ 10:27am

    Oh, wow, this guy really smacks it down. I wonder how often you get to give worthy legal advice and poetic smack-talk all at the same time.

    "You ain't got no Leg to stand on, and I will legally waste you and everyone associated with you."

    reply to this | link to this | view in thread ]

  23. identicon
    Flagg, Mar 28th, 2007 @ 10:55am


    rofl, screw you RIAA

    reply to this | link to this | view in thread ]

  24. identicon
    Chris, Mar 28th, 2007 @ 1:40pm

    It has come to my attention

    To whom it concerns at the RIAA,

    In recent years, our records show that you have filed more than 3,000 lawsuits. Unfortunately, you are in violation of the CAN LAWSUITS act which was enacted in an emergency session of congress and slipped into a bill that weakens copyright strength, eliminates the patent, and enhances fair use. Sadly, you now must pay all the legal costs that were forced upon innocent victims and may not file anymore copyright related lawsuits until the year 3000.

    reply to this | link to this | view in thread ]

  25. identicon
    RandomThoughts, Mar 28th, 2007 @ 1:54pm

    Everyone hates lawyers, except of course when they need one.

    reply to this | link to this | view in thread ]

  26. identicon
    teknosapien, Mar 28th, 2007 @ 4:28pm

    If you read the whole thing

    The Lawyer proceeds to ask for damages -- he also states that the lawyer them self might get personally confronted with malicious prosecution liability.

    reply to this | link to this | view in thread ]

  27. identicon
    Charles Griswold, Mar 28th, 2007 @ 5:22pm


    Not all lawyers are bad. It's just the the ones that are bad tarnish the image of the entire legal profession.

    reply to this | link to this | view in thread ]

  28. identicon
    jack mihoff, Mar 29th, 2007 @ 8:52pm

    i wanna be fbi

    internet killed the capitalist star...time will tell, ya think yur in heaven but yur livin' in hell...

    reply to this | link to this | view in thread ]

  29. identicon
    Caboose, Mar 31st, 2007 @ 8:15pm


    data and information on a computer are NONTANGLIBLE in the terms of that no goverment aginecy has the right to tell me or my fellow torrenters what to do, just cause some corprate CEO dosent get his million dollar paycheck.

    serves that RIAA right
    it can burn in hell

    reply to this | link to this | view in thread ]

  30. identicon
    anonymous, Oct 18th, 2007 @ 11:00am


    reply to this | link to this | view in thread ]

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
Insider Shop - Show Your Support!

Hide this ad »
Essential Reading
Techdirt Deals
Techdirt Insider Chat
Hide this ad »
Recent Stories
Advertisement - Amazon Prime Music
Hide this ad »


Email This

This feature is only available to registered users. Register or sign in to use it.