RIAA Drops Suit After Aggressive Countersuit Threat

RIAA filed a motion Tues. to voluntarily dismiss Sony v. Merchant in U.S. Dist. Court, Sacramento, without prejudice, meaning the trade group could refile. The motion came after defense attorney Merl Ledford sent RIAA lawyer Thomas Kerr a threatening letter earlier in the day. The message has been praised as a “model letter” for RIAA correspondence by P2P defense lawyer Ray Beckerman.

Ledford threatened to countersue for “malicious prosecution,” making several accusations: The suit was filed far from where defendant Barry Merchant lives, in Fresno, by a lawyer in Kerr’s firm not licensed to practice in Cal., shortly before the death of his father-in-law, who had been ill. Merchant’s “hard drive is available for immediate, carefully supervised inspection” by RIAA, Ledford said. It’s “well documented” that RIAA’s reliance on MediaSentry for P2P investigations is “wholly unreliable and inadequate” in court, Ledford said, adding that RIAA hadn’t undertaken “additional independent investigation” to verify its claims against Merchant. Kerr used “the bulk” of the suit to argue that spurning RIAA’s settlement offer -- pegged at $3,750 -- was the basis for filing suit, Ledford said. “Mr. Merchant has and had no more duty to respond to attempts to ’sell’ him one of your clients’ boilerplate, non-negotiable $3,750 settlements than he has to return cold calls from pushy life insurance salespeople,” Ledford said.

The letter from Ledford drips with sarcasm. RIAA asked “my middle-aged, conservative clients” to offer a theory on who else could have “used their AOL account to download pornographic-lyric gangsta rap tracks,” as a basis for resolving the suit. “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,'” Ledford said.

Kerr’s firm has misjudged the case against Merchant so severely that “a defense settlement offer would not be inappropriate,” Ledford said, asking for: (1) “Reasonable fees and costs” including Ledford’s $6,900 retainer. (2) Written apology from Kerr’s supervising attorney. (3) Indemnification from 3rd-party claims against Merchant, which isn’t included in RIAA’s settlement language. Ledford offered a confidential settlement with RIAA if the trade group meets his conditions in writing by the close of business tomorrow (Fri.). Once the case is moved to Fresno federal court and hard-drive inspection is completed by RIAA, “it should be a short trip to dismissal,” Ledford said. But the legal fight isn’t over, an RIAA spokeswoman told us: “We are continuing to pursue these claims more broadly. That’s all I can say at this time.”

RIAA also lost a motion to conduct a deposition of a minor in person, in Atlantic v. Andersen. The U.S. Dist. Court, Portland, Ore. granted a defense request to conduct the deposition of 10-year-old Kylee Andersen -- 7 at the time of alleged infringement -- by telephone or videoconference. But Kylee “may not take a break from her deposition when a question is pending,” Judge Donald Ashmanskas said, granting an RIAA request in a Tues. docket entry. The RIAA spokeswoman said she wasn’t sure whether this was the first request for an in-person deposition with a minor that had been rejected.

Regarding piracy on university networks, the U. of Me. system rejected RIAA requests on 2 fronts: It won’t produce names of students suspected of infringement, or forward the settlement offers to suspects, although the university will notify and let students pick up the settlement letters if they choose, the Maine Campus reported. “It’s not the university’s role to, in effect, serve papers on our students for another party,” or to act as “the arm of the RIAA beyond simply sharing the information” about settlement letters, a university spokesman said. He said the request to match student names to RIAA’s submitted IP addresses would require the school to violate the Family Educational Rights & Privacy Act. The university system received 27 letters in the “second wave” of settlement offers (WID March 22 p10).

The U. of Me. didn’t inform RIAA of its decision directly, the spokeswoman said. That would make 2 schools -- U. of Wis.-Madison the first -- that have publicly announced they were spurning RIAA’s requests to forward settlement offers, without formally responding to RIAA. The university’s portrayal of RIAA’s request as a demand to “produce names” in violation of federal law is wrong, the spokeswoman said: “We are simply asking the university to contact the appropriate individuals corresponding to the IP addresses in our [settlement] letters, so these individuals have the opportunity to voluntarily contact us and settle the claims against them before a lawsuit is filed.” RIAA asks for names only after it files suit and subpoenas a school, the spokeswoman said.