RIAA Pulls Case Before It Can Be Dismissed, Then Refiles Days Later To Get Different Judge

If you were still somehow unconvinced that the RIAA’s legal strategy is “be sleazy, intimidate, then profit,” their latest legal maneuvering might finally convince you. Next week, a judge was to decide whether their case against a New York family should be thrown out—the family’s lawyer, RIAA critic Ray Beckerman, argued “that if the RIAA can’t prove anybody downloaded the music from an open share folder, then the case would have to be dismissed.”

Earlier this month the RIAA voluntarily dismissed the case—then refiled it last week but didn’t mention it was the same lawsuit, which means it was assigned to a different judge. Now the RIAA is demanding immediate discovery (which includes depositions and hard drives), which the previous judge had blocked pending a rule on the dismissal motion. We tip our hats to you, RIAA lawyers. You bring every evil-lawyer cliche from TV to life.

“These people are psychos,” Beckerman said in an interview.

Also, the case was captioned under the name Does, meaning the RIAA was somehow pretending it didn’t know the family’s name allegedly behind the IP address in question.

“This case, it’s the exact same internet access account,” he said. “It’s the very same act of copyright infringement charged. It’s no different.”

The RIAA did not immediately respond for comment.

Beckerman has penned letters to both judges alerting them to the switcheroo.

“They’re trying to force a settlement and frightening people,” Beckerman said in the interview. “That’s the only point of this.”

“Lawyer: RIAA Gets Sleazy in Disputed Downloading Lawsuit” [Wired Threat Level] (Thanks to Chris!)
(Photo: Getty)

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  1. speedwell (propagandist and secular snarkist) says:

    People, if you have a blog or know someone who does, GET THIS WORD OUT. It’s going to take everyone to work together to bring this dragon down. The government has failed us… it’s now the market’s turn. Let’s not take this lying down.

  2. gillis says:

    As someone in the music industry, all I can say is I haven’t seen, nor have any of my friends, colleagues seen any money from any of these lawsuits. Shouldn’t really surprise anyone, but for those who thought the RIAA was doing it for the benefit and protection of the industry: you should ask what “industry” and who in that “industry” they are “protecting”.

  3. boomerang86 says:

    I not only hope the defense triumphs over RIAA this time, that they are awarded treble damages against the “music cartel”!

  4. mythago says:

    @Treetopflyer, do you work for the RIAA or something? Because what you’ve just advised is called ‘spoliation of evidence’. If the family did that, the RIAA could justifiably ask the court to rule that the evidence would, in fact, have shown that they violated the law.

  5. Pro-Pain says:

    This happens all the time. Dropping cases to get a different judge. It’s all the rage now.

  6. Pro-Pain says:

    I hate the RIAA. It’s a shame they don’t spend more time being inovative. That would make too much sense I guess. I hope the courts start spanking these guys down hard. I feel sorry for the musicians in all this mess. They are the ones suffering.

  7. consumersaur says:

    @gillis: try writing and recording some music worth pirating!

  8. bohemian says:

    Put a Digg tag on this.

    Between the Walmart corporate police hassling customers for not having a receipt or for trying to cash money orders and the various RIAA antics including using their own private police squad a flea markets we have stepped into sci-fi territory.

    There are plenty of dystopian sci-fi stories where corporations hold so much power they have their own police and do whatever they want. This crap just reeks of the start of such things. It also reminds me of some of the Victorian era companies that employed their own private police to harass and abuse workers or anyone who spoke ill of them. Then again I am seeing lots of things re-emerge that were dealt with long ago like no oversight in the food industry because we have let corporate interests undo laws.

  9. dragonfire81 says:

    The RIAA is run by the Record Companies, the artists don’t get any money from the lawsuits and make most of their money from concerts and live performances anyway.

    I don’t remember the last time I bought a CD, but I do love to go to concerts.

  10. k6richar says:

    @Treetopflyer: Seems to me as soon as they drop the case the harddrive would no longer be evidence. If you destroy it before they refiled the case seems to me it would be legal.

  11. k6richar says:

    @mythago: Last comment should have been aimed at you, my mistake

  12. Mudpuddle says:

    Thed more I hear about RIAAs’ tactics the more I dont want to buy music cds. Sad. Seems they are doing more harm to the music industry than good.

  13. GamblesAC2 says:

    there should be a class action lawsuit brought against the RIAA by the consumers…. for doing what they do to us (dont exactly know if there are legal terms for that)

  14. k6richar says:

    @GamblesAC2: Malicious prosecution?

  15. edrebber says:

    @mythago: It took a week for the RIAA to refile the case after they dropped the previous case. There were no legal strings attached to the evidence during that 1 week period.

  16. TorrentFreak says:

    I’m not surprised they did this. They are just going to keep trying different judges and angles until they get what they want. They want the defense to run out of money or get scared so they will be forced to settle. They use dirty tricks. The defense should destroy the HD and claim they destroyed after the first lawsuit was removed and before the second one was placed.

  17. albo23 says:

    Get the word out: [digg.com]

  18. mythago says:

    There were no legal strings attached to the evidence during that 1 week period.

    And you know this because you’re a lawyer?

    First, Treetopflyer was not saying “this is what the family should have done right after the lawsuit was filed”. He was offering his opinion as to what they should do. Deliberately destroying what you know will be evidence is a good way to screw yourself. I can’t imagine anyone actually anti-RIAA would be advising the family to shoot themselves in the ass like this.

    Second, the argument that there are ‘no legal strings attached’ is incorrect. If you know that evidence is going to be relevant to a lawsuit, and you deliberately get rid of it, you can be in trouble. Think about it; if Exxon causes a huge oil spill, and the EPA is investigating, would it be a problem if they shredded all of their records pertaining to the ship that caused the oil spill? Unless the family argued that, gosh, they had NO CLUE WHATSOEVER that the RIAA might file another suit and that the hard drive might be at issue, they’d have to explain their actions.

  19. mythago says:

    sorry, should be “right after the lawsuit was DISMISSED” in the third sentence up there.

    Let’s also remember that the family in this case has an attorney. Attorneys really are officers of the Court, just like it says on TV. We’re not ethically permitted to destroy potential evidence.

  20. TorrentFreak says:

    @ Mythago:

    yeah a lawyer and ethics ROFL

    Lawyers aren’t permitted to destroy potential evidence but they are allowed to drop a case before they get ruled against them and start it all over again with a new judge? Sleaze tactics are fought with sleaze tactics.

  21. mythago says:

    I don’t know how much clearer I can make this. If you DESTROY EVIDENCE ON PURPOSE, YOU ARE HURTING YOUR OWN CASE.

    Again, I have to wonder if you guys are really pro-RIAA or what, because you’re saying things that would only hurt the family’s defense. “Sleaze tactics are fought with sleaze tactics” doesn’t work in real life. It just means that the judge might decide your sleaze tactics are more horrible than the other side’s, and punish YOU instead. “But he started it!” doesn’t work in court any better than in real life.

    The RIAA’s dump-and-refile is not really going to get them anywhere in the end.

  22. eben56 says:

    Fight them, Fight them, Fight them.

    If the performers saw even one CENT from these lawsuits the there might be an upside. These are RIAA lawyers and no one else gets anything. I just recently sent a friend a copy of the title song from a CD I PURCHASED and basically said “you gotta hear this”. My friend agreed and BOUGHT the CD.
    According to the RIAA I should pay big bucks for sharing a song. Of course if a FM station does the same thing they are “promoting” the product.
    Money from the sale of CDs should go to the artists and writers, not to a middleman organization like RIAA. There only job is to make sure 50% or more of royalties NEVER get to the musicians.

  23. Nev-in-NYC says:

    This just lays the foundation for future cross claims of violations of RICO statutes and malicious prosecution. But then again that would entail fighting the claims which as per the RIAA’s tactics requires more money than the pure settlement and opens people up to the unconscionable damages verdicts. I’m still amazed that the statutory damages are allowed to be so insanely incongruous with the actual “damages” caused by the filesharing (especially if you’re familiar with the Oberholzer-Strumpf study [www.unc.edu/~cigar/papers/FileSharing_March2004.pdf] that was conveniently swept under the carpet).

    If it were up to me I would also disbar the lawyers handling the case for the RIAA but then again I’m one of those rare people in the legal profession who actually believes in ethics and professional responsibility.

  24. I think this may come to bite the RIAA in the ass. Federal Judges really frown on shenanigans like this. You really, really don’t want to mess with a Federal Judge, specially by trying to make him look like an idiot.

    Said judges can make your life a living hell, with very little recourse. Don’t be surprised if some of these lawyers have complaints filed against them with the state bar. Legal ethics are very tricky. A lawyer can be disbarred for something that wasn’t against a particular rule, but was still unethical or went against the interest of justice. It sort of helps that there are a lot of “catch-all” rules in the ethics rules that can catch you if nothing else does.

  25. Greeper says:

    Im *ALMOST* positive that the case will automatically go to the same judge. That is the rule in the jusrisdiction where Im a member of the bar, but I thought it was a federal rule. Any less-lazy lawyers might want to look that up, but I’m pretty sure you can’t judge-shop like that.

  26. DeeJayQueue says:

    for everyone promoting the destruction of the hard drive:

    It won’t make any difference. All the hard drive will prove is that there were files in a shared folder.

    If you left your lawnmower in the yard and it got stolen, why would the police go after you? The people who gained access to and downloaded the files are the ones to be going after, and that’s what these people’s lawyer was going to use as a defense.

    The RIAA doesn’t want to put the effort into tracking who is actually downloading the songs, they just want to go after the people who’s daughter puts britney spears’ single in the shared folder.

  27. whiterose says:

    How can these people possibly prosecute the literally billons of people on the planet that have shared files.

  28. donkeyjote says:

    @Greeper: Apparently it did get assigned to a different judge.

    And on a side note, we need a serial killer/vigilante to start offing RIAA suits and lawyers… Like Robin hood, but, you know, murder-and-stabby-y

  29. doctor_cos wants you to remain calm says:

    @consumersaur: What are you implying with your comment? That smaller artists are not seeing the money, but bigger ones are? You need to look this up before you start making comments like that.

    That said, fuck the RIAA. The RIAA is interested in protecting THEIR money. Fuck the artists. What did they do to deserve any money anyway?

  30. edrebber says:

    @mythago: The RIAA voluntarily dismissed the case. The judge was about to rule on a motion to dismiss the case. There is no obligation on individuals to preserve evidence from a dismissed case.

  31. Concerned_Citizen says:

    Meh, toss the drives. Say they died a few days after the first case was dismissed. Nothing wrong with throwing away a dead hard drive.

  32. Nev-in-NYC says:

    @edrebber: You might technically be right, but it would be a shame if the defendant did get rid of the evidence and then had the suit refiled and experienced prejudice on that basis. It would look rather incriminating if a person just happened to have key evidence destroyed immediately after the dismissal of a lawsuit…

  33. azntg says:

    Absolutely sleazy.

    The RIAA will be its own undoing. Even with deep pockets, they won’t be able to pull this kind of BS forever.

    Please, whoever the new judge is, kindly set a nice precedent that gratuitious and intentional abuse of the legal system will NOT be tolerated!

  34. bravo369 says:

    even if you think the people are doing something wrong or support the stance the RIAA is taking in wanting to sue customers, there should not be a single person who supports the evil backstabbing runaround the legal system that the RIAA is continuing to do in order to extort money from people. anytime a court system is ready to smack RIAA on their behind, RIAA simply dismisses the case in order for the precedent not to be set. then they refuse to pay legal fees. This is why a class action lawsuit against the RIAA. Read this article on how it’s impossible for the RIAA to know who is actually infringing upon their work. [tech.slashdot.org]

    Does RIAA care? no, throw enough lawsuits at people, enough stick to settle and you dismiss the rest. it’s despicable

  35. freejazz38 says:

    stop buying and paying for their garbage. Most of what’s come out the past 15 years has been useless crap anyway. Go to your local Library, borrow it and record it. Shove it up the RIAA’s ass

  36. mycroft2000 says:

    For the last ten or twelve years, 100% of my music purchases have been CD’s at garage sales, and my price ceiling has been $2 apiece. I’m very glad that these transactions have been anonymous, because I have no doubt that the RIAA would love to sue my ass too. I can’t think of how they’d justify it, but I’m sure they have a plan in the works somewhere.

  37. k6richar says:

    Look up independent bands, they will often have their songs available for download on their websites. Good music doesn’t need a record company to sell music, bad/mediocre music requires a record label to sell CDs.

  38. @k6richar: Sounds damn close to it.

  39. mythago says:

    @edrebber: yet again, I wonder if you guys aren’t trolling for the RIAA.

    The fact that a lawsuit was voluntarily dismissed doesn’t mean it’s open season on deliberately destroying evidence you knew or should have expected would become relevant in litigation. WHY should this family destroy the hard drives? So the judge will become suspicious that they, not the RIAA, are the bad guys? Way to go.

  40. Mr_D says:

    @mythago: How would this family have known the hard drives would be evidence? If the RIAA brought suit against me, then mysteriously dropped the suit, I would probably destroy/recycle the evidence too. For the time between one case ending and the other case beginning, there was no way for the defendant to know it was relevant to a future case. Unless, of course, lawyers usually tell their opponents the shady crap they’ll be doing.

    Now that the suit has been refiled, I don’t think anybody’s saying they should do anything to the evidence. Destroying evidence is a big no-no.

  41. mike says:

    @speedwell: Dude, the government didn’t fail us. RIAA are just the scum of the earth.

    The RIAA will get my hard drive from my cold dead hands.

    I don’t illegally download so I don’t have anything to fear. But if the RIAA is anything like GeekSquad, then I’ll keep my hard drive, thank you.

    Next thing you know they’ll ask me to pay for a replacement power supply.

  42. Gopher bond says:

    @Mr_D: “How would this family have known the hard drives would be evidence?”

    Because it actually WAS evidence? What, you think the judge is going to forget that the hard drive was going to be evidence before the lawsuit was dismissed? Mythago is saying that if you destroy the hard drive, the judge is going to think you have something to hide, whether or not you had a legal right to do so. Playing dumb and destroying the hard drive is going to make you look bad, and will in no way help your case. Innocent people don’t destroy potential evidence. While you may not be held legally liable (who knows I’m not a lawyer) the judge may decide to exhaust his/her extensive legal powers to prove it.

  43. chartrule says:

    very slimy tactics

    hopefully the family’s lawyers enlighten the judge to what happened and that it gets bounced back to the original judge

  44. mariospants says:

    Ok, don’t destroy the drive, sell the frigging computer on craigslist or at a yardsale (whipe it as best you can). I doubt that anybody from the RIAA will be watching your lawn to see if you’re selling your PC. I don’t keep people’s names and addresses when I sell shit like that.

    Sell it or donate if there’s incriminating evidence and the RIAA has dropped the “first case”.

  45. Jmatthew says:

    I could swear I saw an article on Ars Technica a month or so ago about the record labels sueing the RIAA because even THEY haven’t recieved any money yet… anyone have a link to that?

    Another interesting thing I saw was all these little labels talking about suing the RIAA because in their court docs they list bands that the major labels don’t cover, so the RIAA is actually suing people over rights they don’t own…

  46. rlee says:

    As I understand it, RIAA dropped the case and then refiled against the “Does” on the grounds that they’d concluded the culprit was an unknown someone in the family other than the original defendant. Is that legal and ethical? Dunno. Slimy, if they don’t give the new judge that background? Yup.

  47. angryhippo says:

    I guess now that the tactics the RIAA will take if they think the judge won’t rule in their favor (ie. quietly drop, then re-file) are known, the standard will be quietly get rid of the drive when the lawsuit is dropped. No lawsuit = no evidence needed = I can do whatever I want with my damn drive. “I upgraded my drive and needed a backup drive, so I wiped it and put it in an external casing”. Even day-to-day use would gradually take away any ability to see what happened on that drive one month, six months, a year back.

  48. jimconsumer says:

    @Nev-in-NYC: It would look rather incriminating if a person just happened to have key evidence destroyed immediately after the dismissal of a lawsuit…

    Maybe not. “When they first filed the lawsuit, I took the hard drive out of my computer to preserve it as evidence, and bought a newer/bigger drive to replace it. I’ve been holding on to this damn thing for months now. When they dismissed the lawsuit, I figured I no longer needed it, so I threw it away.”

  49. RedSonSuperDave says:

    CyberShredder or any of a variety of similar freeware programs repeatedly write garbage data over your hard drive, making it impossible to recover any files which may or may not have ever been on that disk.

    I’m just sayin’.

  50. Nev-in-NYC says:

    @jimconsumer: If this were under New York law the 6 month rule would apply. Basically it says that if a case is discontinued for any reason other than lack of personal jurisdiction or dismissed on the merits that the plaintiff can refile it within 6 months. During that time you’d have to keep a hold of the evidence knowing that the case could easily be brought again. Bogus rule but it is what it is. Still a very bad idea to intentionally destroy evidence, even if the plantiffs are a bunch of douchebags like the RIAA because it only harms your defense…

  51. LionelEHutz says:

    The RIAA should be prosecuted under the RICO laws.