back-words... just what kind of power-hungry cowards are the riaa?

Tuesday, April 17, 2007
just what kind of power-hungry cowards are the riaa?
...the yellow-bellied kind, or so it seems. read on...

source:
http://arstechnica.com/news.ars/post/20061026-8085.html
Defendant doesn't want RIAA let off the hook

By Eric Bangeman | Published: October 26, 2006 - 02:13PM CT
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* Defendant prevails in another RIAA file-sharing case

The RIAA has decided it wants to drop another copyright infringement case, but the defendant is fighting back. Warner v. Stubbs began like so many of the file-sharing cases. MediaSentry found shared music on Kazaa and the IP address was traced to Tallie Stubbs of Oklahoma. After settlement talks proved futile, Warner Bros., UMG, Sony Music, and Arista Records filed suit in the US District Court for the Western District of Oklahoma on July 25, 2006.

After "further investigation," according to a plaintiff's court filing, the record labels decided to dismiss the case. However, they requested that the case be dismissed without prejudice and with prejudice. Likely due to a typographical error, the distinction is important. Dismissal without prejudice means that the action can be brought again in the future. If a case is dismissed with prejudice, it cannot be refiled and the defendant may be named the "prevailing party" and be eligible for attorney's fees and court costs from the plaintiffs, which is what happened in the case of Capitol Records v. Foster.

When the RIAA decides to drop a case, it will file for dismissal without prejudice. If the motion is made prior to the defendant filing an answer to the complaint or a counterclaim, that's the end of the case. The RIAA extricates itself from a case it decided was unwinnable and the defendant is left holding the bag for attorney's fees. In Warner v. Stubbs, the defendant filed an answer and counterclaim seeking affirmative relief before the RIAA filed a motion.

One common thread in the Capitol Records v. Foster and the Warner v. Stubbs cases is the defendant's counsel, Marilyn Barringer-Thompson. After reading through the paperwork from the two cases, it's clear that Barringer-Thompson is playing hardball with the record labels. Ray Beckerman, who runs the Recording Industry vs The People blog and is representing other defendants embroiled in litigation with the RIAA, told Ars that it looked to him like the RIAA decided to cut and run when it saw who the opposing counsel was.

If Tallie Stubbs wins her motion for dismissal with prejudice, then she, too, will be considered the prevailing party and will be eligible for attorney's fees and other court costs from the RIAA. More importantly, it would put the RIAA in the position of having lost one of their file-sharing-related copyright infringement case—none of which have yet gone to trial.

Unfortunately, we don't know what transpired behind the scenes and why the RIAA wants to drop the case. What "further investigation" did the RIAA undertake with regard to the Stubbs case? Was it another case of mistaken identity? We contacted the RIAA for answers to these and other questions and were told by a spokesperson earlier today that the RIAA would be unable to provide answers because our questions "go to an element of legal strategy that we'll pass on detailing."

Should one of the file-sharing cases actually make it to trial, we may get definitive answers on a number of elements of the RIAA's legal strategy. Is an IP address and the name and address of an ISP subscriber enough to make a positive identification of who was doing the alleged file sharing and when? (We were reminded earlier this week that relying on ISP data is not foolproof.) Is a list of music files allegedly discovered by MediaSentry enough to prove infringement? Beckerman doesn't think so. The RIAA's actions indicate that they're not anxious to get a definitive answer either.
Further reading:

* Recording Industry vs The People
* RIAA drops file sharing case
* Record labels evasive about in-house use of file-sharing apps