Updated: Scroll below the jump for a few comments from the lawyer of the moment
Via the blessing to humanity that is BoingBoing, we come across the lawyer hero of the week — a Visalia solo who slung a rock-solid letter to bring down the record-industry goliath. The Recording Industry Association of America has been linking, more or less, real names to unauthorized music downloads and sending pro forma letters threatening to bring suit unless the recipient — often a college kid, sometimes a disabled person living on his disability check and the occasional preteen girl — coughs up a few grand to make it all go away.
You don’t expect an industry fighting the inevitable tide of media/technology evolution by maliciously punishing a random microsampling of Internet users to play fair or play smart, but too many of those cold-cocked with the content industry’s offense-as-defense strategy have been intimidated into paying.
Not California resident Barry Merchant, though. When he got one of those bullying letters — a milk-money shakedown of nearly four grand — he fought fire with a flamethrower. Attorney Merl Ledford III, whose counter-intimidation skills ain’t to be taken lightly, threatened to sue for malicious prosecution.
“Your clients 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 result? The RIAA’s heartless litigation siege engine ceases and desists.
Ledford wasn’t available at his office on Wednesday afternoon to comment on the suit — and on whether the voluntary dismissal included his call for $6,880 in costs — so no word on what kind of reaction he has received now that this dustup is making its way around the Web. Fair guess that his letter for Merchant will evolve into a widely adopted boilerplate to counter the RIAA’s. Which would be just a bit ironic, given that Ledford’s letter doesn’t paint him as much of a fan of boilerplating:
“Mr. Merchant," he tells the RIAA shills, "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.”
Pity the pushy life insurance salesman cold-calling Merl Ledford.
Update: Merl Ledford worked a phone chat between work on a dairy lease and a multimillion-dollar IP endowment to UC-Davis to talk about the letter that has created an Internet stir. He says he fired off the no-holds-barred missive in a single evening because his wife was busy with literary pursuits.
“Diane has a book group meeting, so I stayed and worked late,” the Visalia solo said this afternoon. He said a lot of the conceptual heavy lifting had been done, so it hadn’t been difficult. “I got out of here about 11 that night.”
The Hastings grad says his business litigation practice is weighted toward agriculture, but he has done a range of interesting IP and product liability work, too. He hadn’t dealt with the RIAA’s ’Net threats before, but he has worked for Silicon Valley tech firms, and he’s as comfortable talking about Slashdot.org and running the Linux operating system as he is discussing the finer strategies of malicious prosecution complaints.
All the attention that one night’s work has gotten him has been amusing. He says his e-mail inbox is stuffed with complimentary commentary from tech executives, IP professors, diplomats and software engineers. And with the strong opinion that the RIAA’s tactics are unfair and abusive, he’d like to think some lawyers out there are taking note, too.
“Hopefully,” he says, “this will take care of some of the crap that’s going on.”
— Brian McDonough