The Secret Is Out: The RIAA Quickly Retreats From Opposition
What’s becoming more and more apparent is that the Emperor Has No Clothes. The Recording Industry Association of America (RIAA) brokers in fear. Maybe they knew right from the get-go that their lawsuits against illegal file sharing didn’t hold water, and if they instituted a climate of paranoia, then their settlement conversion rates would rise dramatically. For the most part, this strategy has worked. Even their lawsuit settlement “Drive Thru” is said to have a 25% conversion rate, despite some opposition from a few universities who don’t want to play their Reindeer Games.
However, over the last few months, many defendents, advised my sharp attorneys, have had a moment of clarity and realized that the evidence the RIAA peddles is incredibly weak. 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 quickly retreat.
As the latest case demonstrates, a terse letter from an attorney outlining the multitude of holes in the RIAA’s case has resulted in an abrupt dismissal.
Here’s one such letter for your reading pleasure that not only makes the RIAA look sissy, but showcases how incredibly anorexic the RIAA’s stance is…and now without further ado, we bring you the best passage:
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.
So why is the RIAA getting over on individuals with their bullying? It’s quite self-explanatory…economics. In the United State’s Litigation Economy, it is simply not cost efficient to defend oneself against a frivolous lawsuit. So you settle. However, each settlement for the RIAA is a public win, no matter if the person actually did file share, or if they’re 12 years old, or even if they’re dead.
The RIAA is certainly not wrong to pursue individuals who offer large catalogs of music on Peer-To-Peer networks. However, once they became Litigation Terrorists, their legitimate campaign was fatally poisoned. The sad part is that they still haven’t learned from their vast number of mistakes, miscalculations and public relation nightmares.
The question still remains: Will the madness never end?
