This is lifted from BoingBoing; see the permalink for the original location. I love the wording of the letter. Since the RIAA keeps doing this stuff, it’s nice to have a starting point for a response on record.
Wednesday, March 28, 2007
A California man got out of his music-sharing lawsuit by having his lawyer send a sharply worded letter to Sony Music, the plaintiff (music lawsuits aren’t brought by the RIAA, but by individual record companies — like Warners, who are suing a paralyzed man for his disability check). The letter threatened to sue Sony for malicious prosecution, citing the crummy evidence used by record companies in other suits, and on receipt the letter it, Sony chickened out and withdrew the suit.
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.