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Lets Paint The Kettle Black,Do You Have A Bitch On Whats Going On Around The Site Or Any Thing Negative To Report
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gerry1
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24. March 2007 @ 10:14 |
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My Bitch: People answering threads without having any knowlege on the problem, giving irrelevant information etc. No names mentioned but it's he's been here before!!!
Gwen, that is certainly frustrating and I agree. I don't assist in the computer forums because savvy, I'm not but I do help out in the receiver/amplifier forums and,despite the fact that its nowhere near as busy as the forums, I still see it with some regularity. Another member named JVC and I have discussed our frustration with this...we've seen "advice" that could damage some rather expensive equipment. Since such posts are made more as a matter of ego than knowledge and a want to help, contradicting the erroneous poster often leads to flaming. When this happens, I usually PM the guy with the question explaining that the guy is wrong and explain why he's wrong. I've never had an occasion where they weren't grateful for this type of interjection.
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gerry1
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24. March 2007 @ 10:19 |
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@Domeris...hey kiddo! When did you make "addict" status? ...CONGRATULATIONS! The forums I help out in aren't all that busy so I'll be older than God before making addict status LOL! Anyway, congrats!!!
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Senior Member
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24. March 2007 @ 11:11 |
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Drag racer Medlen dies of injuries.
By KELLY JONES
kjones@modbee.com
Last Updated: March 24, 2007, 10:02:36 AM PDT
The last time Eric Medlen came home to Oakdale, he stayed in a motel.
There was no way the drag racer was going to get any rest staying at his mom's house, where so many friends and relatives were calling or visiting.
"Of course, everyone wanted to be around him," family friend Kim Bacigalupi said. "Eric was a great guy."
Referring to Medlen in the past tense is going to take getting used to for thousands of friends, family members and fans.
Medlen, 33, died in a Gainesville, Fla., hospital Friday from injuries suffered Monday during a test run in his National Hot Rod Association Funny Car.
An official cause and Medlen's estimated speed haven't been released, but the accident happened toward the end of the quarter-mile run.
Medlen never regained consciousness after crashing at Gainesville Raceway, where his car turned suddenly into the right guardrail toward the end of his quarter-mile run.
He was flown to Shands at the University of Florida medical center and underwent at least four surgeries, but doctors said they were unable to relieve the pressure in his head.
Dr. Joseph Layon, professor of anesthesiology, surgery and medicine and the chief of critical care medicine at the university, said in a statement that Medlen suffered from a diffuse axonal injury, which has a very low survival rate.
"Despite receiving the most aggressive treatment, Eric continued to have uncontrollable intracranial pressure," Layon said. "His body lost the ability to manage its salt and water levels, and he began displaying the complicating factors associated with" diffuse axonal injury.
This was Medlen's fourth year as an NHRA driver. Medlen was a member of the John Force Racing team for eight years before becoming a driver.
He was a clutch and supercharger specialist, then won six national events in three years behind the wheel.
Funeral arrangements haven't been announced.
Medlen was single. He didn't have any children.
A photo tribute to Medlen has been posted at www.nhra.com, including a shot of the driver celebrating his last victory with his crew chief, father John Medlen.
That win came Oct. 15 in Dinwiddie, Va., after Eric Medlen set a track record with a 4.796-second run at 303.09 miles per hour in the semifinals.
Another picture on the Web site was of Medlen talking to rodeo champion Jerold Camarillo of Oakdale, who was like a father to Medlen.
The two were preparing to hit the rodeo circuit as team ropers in 1996 when Medlen was offered a chance to be a crew member on Force's team, where his father worked.
"Today was a real shocker. I wanted so much for him to come out of this thing. I felt like his whole life, after he was done racing, he was going to come back and rope with me," Camarillo said. "He always had a rope sack for team ropes and a rope can for his calf ropes. His ropes are still in my tack room. I'm going to miss him."
Oakdale was where Medlen came to relax. After spending the day roping and riding at Camarillo's ranch during the summer, Medlen won the Fram Autolite NHRA Nationals at Infineon Raceway in Sonoma.
Medlen demonstrated his rodeo skills for Force and his daughters, who appear on the A&E reality series "Driving Force." Camarillo said Force knew Medlen had been a roper but had no idea how good he was.
Camarillo said Medlen understood the dangers of drag racing, where he could hit a speed of 330 mph in a quarter-mile. Medlen loved the sport, though, and Camarillo thought he could have been one of the all-time greats.
"Drag racers are kind of like bull riders," Camarillo said. "Riders today don't have long life expectancy. They ride the toughest bulls. Eric drove the fastest cars. This is what they want.
"Some people are lucky. They go through their whole life. Look at John Force. He's lived through a lot of wrecks. Eric didn't feel no pain."
Like Camarillo, Force often said Medlen was like the son he never had. The 14-time Funny Car champion repeated that sentiment in a statement Friday.
"He was the leader of my next generation of drivers," said Force, 57. "(Driver) Robert Hight, my daughter Ashley and I were with the family throughout this very difficult time. This loss is a huge blow not only to the Medlen family, but to drag racing and to John Force Racing."
Medlen grew up in Oakdale and graduated from Oakdale High. Lifelong friend Tony Bacigalupi, 20, said he thought Medlen would pull through.
Sitting at the family-owned H-B Bar on Friday afternoon, Bacigalupi remembered buying a horse from Medlen, Medlen taking him to ride go-karts and Bacigalupi taking Medlen snowmobiling when he was home for Christmas last year.
"He was always telling jokes," Bacigalupi said. "He was never serious until it came time to race. It hasn't totally hit me that he's not going to be around."
Tony Bacigalupi and Camarillo purchased tickets Thursday night to fly to Florida, hoping to be there in two weeks. That's how long doctors had planned to keep Medlen in a medically induced coma to allow the swelling in his head to subside.
"My biggest thrill was the first time he ... won his first race" in 2004, Camarillo said. "I was so happy for him. At Sonoma last year, I was so happy and proud of him. It was such an accomplishment. The cowboy from Oakdale does good."
To comment, click on the link with this story at www.modbee.com. Bee staff writer Kelly Jones can be reached at kjones@modbee.com or 578-2300.
Oakdale is about 15 minutes outside Modesto...It is where my brother Doctor Bob lives...Eric was one of the area's local heroes...Most of John Forces's Crew is from Oakdale...A recent episode of "Driving Force" was filmed their...It is a Very Sad Day...
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AfterDawn Addict
15 product reviews
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24. March 2007 @ 18:50 |
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My prayers for his family.
Racing in any form is dangerous. I was into go karts for a while. But I quit racing competitively after my buddy John got into a crash that paralyzed his left leg completely. I didn't want to end up like him.
Someone sticky this thread!!!!!!!
AMD Phenom II X6 1100T 4GHz(20 x 200) 1.5v 3000NB 2000HT, Corsair Hydro H110 w/ 4 x 140mm 1500RPM fans Push/Pull, Gigabyte GA-990FXA-UD5, 8GB(2 x 4GB) G.Skill RipJaws DDR3-1600 @ 1600MHz CL9 1.55v, Gigabyte GTX760 OC 4GB(1170/1700), Corsair 750HX
Detailed PC Specs: http://my.afterdawn.com/estuansis/blog_entry.cfm/11388This message has been edited since posting. Last time this message was edited on 24. March 2007 @ 19:06
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Senior Member
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24. March 2007 @ 20:33 |
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My Bitch: People answering threads without having any knowlege on the problem, giving irrelevant information etc. No names mentioned but it's he's been here before!!!
Exactly, except what frustrates me more is when people answer with a different question to ask the topic starter. Here's a prime example of what I'm talking about. The thread starter will be named A while The replier will be named B.
Originally posted by A:
How do I FTP to my xbox if it has the error code 13?
Originally posted by B:
Dude I have no Idea but I needd help with modding things can be so complicated
Kinda makes you wonder on how desperate people can be.
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Moderator
1 product review
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25. March 2007 @ 04:28 |
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My bitch...it's time to start cleaning out the pool. I might as well throw money into a blender and drink it...or buy a boat.
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AfterDawn Addict
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25. March 2007 @ 04:50 |
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I'd buy a boat. Lol.
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Shado36
Suspended due to non-functional email address
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25. March 2007 @ 18:42 |
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Having to go into work on a Sunday night for 3 hrs to listen to a bunch of b/s that has no relevance to me at all!! Really screws up my days off up!
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AfterDawn Addict
2 product reviews
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25. March 2007 @ 19:18 |
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Having 5 tests in one day! Having homework that takes up 18 hours of your weekend
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AfterDawn Addict
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25. March 2007 @ 19:28 |
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MORE CRAP FOR YE THAT LOVE SONY PRODUCTS
BUYING THERE STUFF SO THEY CAN KEEP ON SCREWING YE..
ITS AS IF THERE STILL FIGHTING WORLD WAR 2,AND PAYING US ALL BACK FOR THE LOST WAR TO US,
I DO NOT USE OR BUY SONY PRODUCTS..JOIN THE BANDWAGON AND SCREW THEM BACK!!!!!!!
Undeterred by Blu-ray hacks, Sony unveils yet another cipher for DRM
By Jeremy Reimer | Published: March 25, 2007 - 07:55PM CT
Sony announced late last week that they have invented a new encryption mechanism known as "CLEFIA," a block cipher algorithm designed to help content producers deliver "advanced copy protection" with their products. The name comes from a play on the French word clef, which means "key." We can't help but snicker, given that it has been key-sniffing that has been undoing DRM as of late.
Related Stories
* FTC finally settles with Sony BMG over rootkit
CLEFIA is aimed at portable electronics and home entertainment products, and can be applied to music, images, or even video. The big claim from Sony is that CLEFIA has "sufficient immunity against known cryptanalytic attacks," yet it has relatively low hardware requirements. The company plans to formally present the CLEFIA algorithm at the Fast Software Encryption 2007 conference in Luxembourg.
Sony claims that the new algorithm is extremely efficient; when implemented in hardware, it can achieve a maximum throughput of 1.42 Gbps using a 0.09 micrometer CMOS standard cell library and gate size of 6.1K, which Sony says is a new record for hardware gate efficiency.
The idea is to make it possible to implement the protection as a relatively inexpensive hardware component for media playback devices. Software implementations are also possible, and Sony claims that they will achieve "high speed performance on a wide variety of processors," although the company declined to give specific figures.
Block ciphers are a common cryptographic tool used in many existing algorithms, including the US government encryption standard DES?a variant of which has been used to serve secure web pages?and its replacement, AES. Unlike simple ciphers that translate a character at a time, block ciphers encrypt entire blocks of text at once, using a secret key which can be of varying lengths. CLEFIA uses a block size of 128 bits, and can be configured to use keys of 128, 192, or 256 bits.
Theory versus praxis
So are Sony's claims of the cipher being "immune" to attacks real or just marketing? Block ciphers can be made resistant against garden variety brute-force attacks simply by using longer key lengths. The length of the key required to prevent these attacks continues to increase as CPUs get faster?key lengths of 80 bits were once considered completely secure, but today 128 bit keys are commonly used by applications such as web browsers for SSL.
Yet brute-force is rarely the method by which DRM schemes are cracked. Most approaches attempt to capture the keys directly, either by scanning a computer's memory while it is playing back the movie with a software player, or capturing it while it is transit from the optical drive to the computer by sniffing the data going through a USB cable. The AACS copy protection used on Blu-ray and HD DVD discs, for example, has already been broken in this way, although the specification anticipated this occurring and allows for compromised keys to be revoked at a future date.
CLEFIA will not magically make future content protection "unhackable," although it may make it cheaper to add copy protection to more types of devices, which is really what Sony is going for here.
Blu-ray-hacks-sony-unveils-yet-another-cipher-for-DRM.htm" target="_blank">http://arstechnica.com/news.ars/post/200...her-for-DRM.htm
This message has been edited since posting. Last time this message was edited on 25. March 2007 @ 19:32
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Senior Member
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25. March 2007 @ 19:37 |
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For years I purchased nothing but Sony products, ever since they pulled the rootkit scam I never bought anything sony again and never will, sony can kiss my little skinny lilly white ass.
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AfterDawn Addict
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25. March 2007 @ 19:38 |
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RIAA Says Accused Students Are Settling
Posted by kdawson on Sunday March 25, @09:34PM
from the cheap-at-half-the-price dept.
Music The Courts
As we've been reporting, the RIAA has been offering settlements to college students suspected of sharing music online. Reader Weather Storm notes that more than a quarter of the alleged music pirates have accepted the RIAA's offer. Quoting: "...an attorney Ohio University arranged to meet with its students... said $3,000 is the standard settlement offer, though cases have settled for as much as $5,000."
Copyright
TOTAL STORY HERE
http://www.msnbc.msn.com/id/17761473/
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AfterDawn Addict
15 product reviews
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26. March 2007 @ 12:48 |
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I'm going to a local tech school when I get out. They'll let me take only just the one class I want. Sweet... no finding me *devilish grin at RIAA*
AMD Phenom II X6 1100T 4GHz(20 x 200) 1.5v 3000NB 2000HT, Corsair Hydro H110 w/ 4 x 140mm 1500RPM fans Push/Pull, Gigabyte GA-990FXA-UD5, 8GB(2 x 4GB) G.Skill RipJaws DDR3-1600 @ 1600MHz CL9 1.55v, Gigabyte GTX760 OC 4GB(1170/1700), Corsair 750HX
Detailed PC Specs: http://my.afterdawn.com/estuansis/blog_entry.cfm/11388
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Member
1 product review
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26. March 2007 @ 15:53 |
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@Those stories:
Damn bitch! I can't believe she did that to her adopted kids, but it's not the first time I've heard of child abuse from step parents. I hope that bitch rots in Hell for the shit she put those kids through!
Damn those bastards on that Web chat! Those fuckers should have taken that guy's suicide more seriously instead of egging him on. It's what pisses me off about the internet; anonymity makes people irresponsible for the well-being of others. What pisses me off the most was that he was a generally nice guy; he loved his kids, he didn't hurt anybody, and he was a decent member of society. He wasn't in a right state of mind most likely after his crash. Damn those snuff-loving shit wads!!
It also sucks for that drag-racer. Never really heard of him, so I can't comment much on that.
@Nephilim:
Good job on doing a civic duty; nothing more infuriating than when a bunch of jackasses just watch as someone is in serious help. Granted, if the girl was dumb enough to not wear a seatbelt while trying a dumb-ass stunt like that, then it would be kinda hard not to just let her be >:D
@Sony & RIAA:
FUCK YOU!
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AfterDawn Addict
2 product reviews
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26. March 2007 @ 16:07 |
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Originally posted by gerry1:
@Domeris...hey kiddo! When did you make "addict" status? ...CONGRATULATIONS! The forums I help out in aren't all that busy so I'll be older than God before making addict status LOL! Anyway, congrats!!!
Thanks mate... I don't even know. LOL, I logged on at School today and noticed it. The area I hang out in is the game console area so the post just keep flowing in. Where are you usually out besides the safety value?
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26. March 2007 @ 18:55 |
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Time for a new userbar Domreis ;)
My killer sig came courtesy of bb "El Jefe" mayo.
The Forum Rules You Agreed To! http://forums.afterdawn.com/thread_view.cfm/2487
"And there we saw the giants, and we were in our own sight as grasshoppers, and so we were in their sight" - Numbers 13:33 |
AfterDawn Addict
2 product reviews
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26. March 2007 @ 19:03 |
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Originally posted by Nephilim:
Time for a new userbar Domreis ;)
Awww.. I haven't even thought of that.
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gerry1
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27. March 2007 @ 03:46 |
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@Domeris...I'm usually in the home theater/amplifiers forum and sometimes displays but my knowledge in displays is limited but there are some things I can help with. They don't get nearly the kind of traffic that the games forums do so I'll probably be a senior forever LOL! ....doesn't matter though; it's not like one gets paid for the promotion LOL!
This message has been edited since posting. Last time this message was edited on 27. March 2007 @ 03:46
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AfterDawn Addict
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27. March 2007 @ 03:59 |
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who wants Adobe CS3 to do there pix's.. i know i will stick with cs2..
Adobe CS3 ships next month
p2pnet.net news:- Adobe Systems' Creative Suite 3 (CS3) aimed at print designers, multimedia editors and web designers, is now out in six editions.
Estimated price for CS3 Design Standard is $1,200 and for the Premium version, $1,800, says ZDNet UK.
Web editions $1,000 or $1,600, and the CS3 Production Premium is $1,700.
And the Master Collection, "the most comprehensive package," is $2,500, says the story.
"It's kind of like the Super Bowl," the Mercury News has Adobe's John Loiacono saying. "It's our largest product launch in 25 years of business."
And Creative Suite has several competitors, observes the story, continuing, "As Adobe expands in video software and publishing on Apple's Mac operating system, it competes with Apple's own video products, including Final Cut Pro and iLife. On Windows, Microsoft plans to release Expression Studio, a lower-cost competitor to many Adobe design and development products, during the second quarter."
And, "Microsoft is very scrappy," it has Trip Chowdhry, managing director at Global Equities Research, stating, "they can freeze the market if they say that it's coming, and it's coming at half the price of Adobe's products."
The Design and Web editions will start shipping next month, while the Production Premium and Master Collection editions will ship this summer, says ZDNet, quoting Loiacono.
People can also buy individual applications, such as Photoshop, Illustrator or Flash.
http://p2pnet.net/story/11775
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AfterDawn Addict
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27. March 2007 @ 05:39 |
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who wants Adobe CS3 to do there pix's.. i know i will stick with cs2..
I know I will to. Regardless of price, I won't be switching (cos let's face it, I'm hardly going to pay for it, now am i?! ;-P
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gerry1
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27. March 2007 @ 09:44 |
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Oh, I'm so depressed! I bought some clothes at lunchtime and the store gave me a senior citizens discount without asking :(
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27. March 2007 @ 10:10 |
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Originally posted by gerry1:
Oh, I'm so depressed! I bought some clothes at lunchtime and the store gave me a senior citizens discount without asking :(
Ouch; that's a bit of a smack in the face, eh Gerry! Lol >.<
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janrocks
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27. March 2007 @ 12:15 |
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hahahahaha.. http://forums.afterdawn.com/thread_view.cfm/486830
Just want to know.. As my debian daily build is less than 4 days old, do any of the linux community here use an operating system from 1999?
Ahh..Gerry. Why not look at it this way.. A discount is a discount is a discount.
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The_Fiend
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27. March 2007 @ 12:31 |
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irc://arcor.de.eu.dal.net/wasted_hate
Wanna tell me off, go ahead.
I dare ya !
This message has been edited since posting. Last time this message was edited on 27. March 2007 @ 12:33
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AfterDawn Addict
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27. March 2007 @ 18:39 |
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a good bitch and a dam good read and i would read every word!!!!!!!
Dear RIAA: better think again
p2pnet.net news:- RIAA (Recording Industry Association of America) cock-ups just keep on accumulating, don't they? One of their biggest messes so far is also one of the most recent: their determination to put a 10-year-old Oregon girl through their legal grinder.
Now there's this.
"I recently came across this letter in my mailbox," posts Ray Beckerman on Recording Industry vs The People. "It was written by California attorney Merl Ledford III, of Visalia, California, to the RIAA's lawyer. Thought my readers might enjoy it."
They might indeed, and so might you. So here it is, in full:
>>>>>>>>>>>>>>>>>>>>>>>>>
From: Merl Ledford III, Esq. [mailto:m.ledford3@ledfordlaw.net]
Sent: Tuesday, March 27, 2007 1:11 AM
To: Thomas McCarten Kerr, Esq
Cc: Barry Merchant
Subject: Sony BMG et al. v. Merchant Eastern Dist of Cal. Sacramento Branch 2:07-CV-00340-DFL-DAD
Dear Mr. Kerr
Thank you for your letter of March 23, 2007 received in my office today. I did not receive a copy of the letter by PDF although that method of delivery was shown on the letter.
Incorrect Venue and Emotional Distress
The lawsuit filed by your office and your letter arrive at a particularly inappropriate time in Barry and Cathy Merchant's life. Mrs. Merchant left my office after our first meeting to attend to ill father in Colorado. She and Barry Merchant left my office today to attend his funeral. You should advise your clients that they are facing a "thin skull plaintiff" either on a Rule 11 sanctions motion or (upon favorable termination) in a malicious prosecution action. The emotional distress inflicted by your clients' litigation -- filed in Sacramento rather than the Fresno Branch of the Eastern District Court where my clients' live in violation of the Rules of Court -- has been extreme.
Your client should carefully consider whether it has probable cause to proceed at this point. Mr. Merchant's hard drive is available for immediate, carefully supervised inspection by your client; a carbon copy of the drive has been made by technicians to insure that the evidence is well backed-up.
At the time of inspection, we will expect your clients to be prepared to dismiss all claims with prejudice. The pleadings may be e-filed from my office the same day. Although dismissal will not avoid your clients' exposure to attorneys' fees under the Copyright Act, it will certainly mitigate damages to Mr. and Mrs. Merchant and the possibility of escalating the issues by counter-claim on federal grounds that have been successfully pleaded in other states as well as on pendant California claims that have, thus far, tempered your clients' California zeal for litigating in this state.
Selling a Settlement and the AOL Subpoena
I have evidence of one letter dated June 5, 2005 from an attorney in your firm who is not licensed to practice law in California to Mr. Merchant claiming copyright infringement and demanding settlement negotiations. There is no other record of any kind.
Please provide copies of other correspondence that your clients claim was received by Mr. Merchant (whether by AOL or others) demanding settlement. Is it the same AOL letter that your clients' represented was sent by AOL to a woman with MS who lives in the New York borough of Queens. See Elektra v. Schwartz, Cent Dist NY, 1:06-cv-03533-DGT-RML, Document 21). When the letter was finally produced, after objection and delay, it became clear that its contents had been misrepresented to the Court. (How anyone from the former Gray Cary firm ever pull such a stunt stuns me; it used to be such a fine office.)
Also, please provide my office with copies of all telephone records of contacts your clients claim to have had with Mr. or Mrs. Merchant, and (with respect to your discussion of the AOL subpoena), proofs of service of Notice of Opportunity to Appear and Oppose RIAA's subpoena, a copy of the subpoena, and all of the parties' pleadings in support and opposition to issuance of the subpoena. In the event the AOL litigation named Doe defendants in violation of the Federal Rules of Civil Procedure and obtained any information regarding Mr. Merchant's long-standing without appropriate notice or in violation of California consumer privacy laws, I will request a preclusion order barring any use or derivative use of any information so obtained. See, e.g., Fonovisa v. Does 1-41, W.D. Texas, Austin Div. 04-CA-550 LY.
Independent Factual Investigation and Probable Cause to Sue: Background
Your office has a duty of good faith independent factual investigation and legal research sufficient to support a finding of probable cause to sue.
In Williams v. Coombs (1986) 179 Cal. App. 3d 626, the California Court of Appeal held that attorneys who participate in the filing or maintenance of litigation without probable cause are personally liable for malicious prosecution of a civil action.
In Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal. 3d 863, the California Supreme Court narrowed Williams, holding that a trial court may not delegate the ultimate determination of probable cause to the jury; it held that the question was one of law which must be resolved by the Court. Id. at 876. The Sheldon decision specifically disapproved of dicta from Tool Research & Engineering Corp. v. Henigson (1975) 46 Cal. App. 3d 675, at 683, that the attorney must have a "subjective belief" in the tenability of his or her client's claim in order to avoid malicious prosecution liability. Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal. 3d at 881. It nevertheless "strongly emphasized" that its conclusion "does not by any means suggest that an attorney who institutes an action which he does not believe is legally tenable is free from the risk of liability" because the lawyer's subjective belief "would clearly be relevant to the question of malice." Id. (emphasis supplied); see also Slater v. Durchfort (1995) 35 Cal. App. 4th 1718, 1724.
The Shelton Court also disapproved of Tool Research dicta suggesting that lack of probable cause may be proven "simply by showing that [the attorney] failed to perform reasonable legal research or factual investigation before filing a claim." Id. at 882. Rather, the Shelton Court held that such lack of diligence is relevant on the issue of malice. Id. The Shelton Court specifically disapproved of the Williams decision's apparent use of lack of investigation to prove lack of probable cause, although it fully endorsed the Williams analysis of the tort of malicious prosecution itself. Id. at 882-883 (footnote 9).
Although malicious prosecution was once characterized as a ?disfavored action,? it has been somewhat expanded in recent years in apparent frustration with continued "shotgun" lawyering tactics by Plaintiff's counsel. In Crowley v. Katleman (1994) 8 Cal. 4th 666, the California Supreme Court upheld a malicious prosecution complaint where only five of six underlying causes of action were alleged to have been brought without probable cause. The court specifically rejected the defendant's claim that because one of the original causes of action was based on probable cause, the entire complaint was made immune from malicious prosecution liability. Id. at 694-695. Similarly, in Zamos v. Stroud (2004) 32 Cal.4th 1297b, the Court endorsed an action against an anti-SLAPP motion where a litigant?s counsel filed and maintained causes of action without probable cause.
Independent Factual Investigation and Probable Cause to Sue: Lack of Probable Cause
I know of no facts on which a good faith finding of probable cause by either your clients or your law firm could be based to support a claim for relief against Mr. Merchant.
It is well documented that your clients' reliance on MediaSecurity (an admitted "non-expert;" UMG v. Lidor, East Dist NY No. 1:05-cv-01095-DGT-RML) and its overall method of identifying P2P copyright infringers is wholly unreliable and inadequate. See, e.g., February 23, 2007, deposition of the RIAA's expert. http://www.ilrweb.com/viewILRPDF.asp?fil...tionTranscript. See also expert witness statement of Prof. Pouwelse and Dr. Sips: http://www.ilrweb.com/viewILRPDF.asp filename=foundation_upcnederland_witnessdeclaration and amicus curiae brief of the ACLU, Public Citizen, Electronic Frontier Foundation, American Association of Law Libraries, and ACLU Foundation of Oklahoma, in Capitol v. Foster decrying the RIAA's "driftnet" litigation strategy: http://www.ilrweb.com/viewILRPDF.asp?fil..._foster_amicus.
Such facts were known or reasonably should have been known to you and your law firm before suit against Mr. Merchant was filed. Thus, unless you and your office undertook additional independent investigation to identify Mr. Merchant as a person who actually has engaged in copyright infringement by illegal downloading, good faith basis for a Rule 11-compliant probable cause finding consistent with the Williams line of cases cited above simply did not exist to file the action. . . and does not exist now for it to be maintained.
Your clients apparently argue that Mr. Merchant's failure to respond to "settlement" demands justifies their lawsuit without other basis on which a finding of probable cause to sue could be claimed. You devoted the bulk of your letter advocating that position. As you know, however, that posture is repugnant to both Rule 408, Fed.Rul.Evid. and California Evidence Code §§ 1152 and 1154.
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 is 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.
Settlement Option
It is not too late to correct your clients' (and your law firm's) mistakes.
Mr. and Mrs. Merchant's emotional condition puts a premium on immediate case resolution. Thus, although I generally do not make opening legitimate offers as defense counsel, the clients' non-monetary interests and their probability of recovering their fees and costs in this matter (at a minimum) suggest that a defense settlement offer would not be inappropriate. Therefore:
My clients are willing to accept dismissal of the litigation in exchange for
1. Payment of Mr. Merchant's reasonable fees and costs including retainer of $6,880.25. The payment represents good value considering what your own firm's billings will have been to date and use of those billing records as the loadstar rate for Mr. Merchant's award. See Capitol Record v. Foster, Western Dist. Okla No. 5:04-cv-1569-W, Docment 182 filed 3-15-07).
2. Apology on your firm's letterhead by your supervising partner for inappropriately filing and maintaining an action against Mr. Merchant without probable cause and for the emotional hardship that such litigation caused; and
3. Execution of a mutual general release of all claims in my office's usual form. The RIAA form of release I have seen will not be used. It is my practice in these kinds of cases to require that the plaintiffs indemnity my clients against claims by third parties as part of my general release language. (E.g., your clients sue a site for posting guitar tabs to copyrighted music; my client visits the site, read the tabs, plays them on his guitar, and get sued by way of cross-claim by the guitar tab site). My form of release also anticipates class action litigation that is in the works at several SoCal class-action offices on RICO, Unfair Practices Act (Bus & Prof. Code §§17200 et seq.) and other grounds against RIAA, MediaSentry, and all of your named clients in the Merchant action. My clients will agree to opt out of any such litigation; the release language is tailored to your clients are not giving up any defenses they might otherwise have to the class claims.
4. Confidentiality: It is my general practice to disfavor confidential settlements. Under the circumstances, and so long as your clients are prompt and candid in dealing with their mistaken, misplaced lawsuit, I would consider a reasonable confidentiality provision. Again, quick response, full payment, and immediate dismissal will allow confidentiality as an option.
The authorized settlement offer expressed in the preceding paragraphs of this email (and confirmed in staff-proofed letter format to be sent by fax and US Mail tomorrow; sorry for typos that are an unfortunate part of any quick-response email) may be accepted by signing a copy of this email and returning it to my office by fax no later than the close of business on Friday, March 30, 2007. It is intended to be presented to your clients as written in complete context of this email (and text-corrected letter to follow) in accordance with Rule 3-510, CRPC. It is the best offer that will be made in this litigation based on the facts and circumstances as they are known at this time. Substantial discovery, investigation, and exchange of information remains that could substantially alter the settlement position of the parties to the betterment of either side in ways that cannot now be responsibly predicted. The case settlement value will, however, trend upward the longer I have to work on it. And the emotional distress damages for willfully filing and thereafter maintaining claims for relief without probable cause will only increase as the matter drags on.
The offer is made pursuant to California Civil Code section 47 and in accordance with Rule 408, Fed.Rul.Evid. and California Evidence Code §§ 1152 and 1154 for the sole purpose of settling doubtful and disputed claims by and between the parties. Neither the fact that the offer was made, nor its acceptance, nor any statement made in the course of settlement negotiations shall be admissible to prove the strength or weakness of any claim, counter- or cross-claim, or defense raised or that could be raised by or between the parties regarding the subject matter of their dispute.
Procedural Issues
Your reminder about preservation of evidence, of course, cuts both ways. Since my client's hard drive completely exculpates him, functionally compels dismissal, and opens the door to substantial recovery, he is doing everything in his power to preserve and protect his evidence. In our part of the world, that is a mid-six to low seven figure piece of computer gear.
Procedurally, we need to address how best to move the case to the Fresno Branch so you can enjoy our new Courthouse and avoid Judge Levi's wrath for filing in the wrong court. (Senior Judge Bob Coyle was responsible for building both our new facility and the District Court building in Sacramento; and, although neither building is as grand as Judge Manny Real's showpiece in Santa Ana, the Fresno Court is not only nicer than Sacramento but also one of the top three court facilities ever I've enjoyed practicing in.) Handling the issue by stipulation and order would probably be the most simple way to move the file. We do that routinely in PACA litigation although I am open to suggestions if you prefer to handle it differently
Once the case is moved to the Fresno Branch, your clients should consider cleaning up their complaint. The FRCP and collateral estoppel from other RIAA law and motion matters require much greater specificity in pleading than your clients provided in the complaint I reviewed. Dates of the alleged downloads, which plaintiff (or affiliate) holds which copyright to which track, etc. must be specifically pleaded and proven. You are as familiar as I am with the results in other cases where RIAA's general allegations have been challenged. Let's get over that hurdle without unnecessary law and motion practice.
We should also discuss how quickly you can get your tech people here to do their hard drive inspection. Again, I would be happy to send the airplane to either Butler at SFO or Kaiser at Oakland for roundtrip convenience of you and your clients' tech people. (Oakland is usually faster for me from Civic Center; Kaiser has a shuttle from Bart that beats SFO by about 20 minutes each way most of the time.)
Because your techs will want to do a full data recovery scan to pick up any "negatives" left behind from erased files, I suggest we create a mirror image on an unformatted hard drive purchased commercially in everyone's presence for that purpose. Other RIAA cases have handled the issue by Stipulation and Order although hopefully we can agree on the procedure without that sort of formality.
Once your tech people have confirmed that none of the titles set forth in your clients' complaint (or any other infringements) are or ever were on the drive, you will have irrefutable confirmation of the information provided to you by my office. From there, it should be a short trip to dismissal even if it means getting our clients to mediate Mr. Merchant's positive claims in the absence of an appropriate settlement.
Concluding Remarks and
Thank you for your continued professional courtesy. It is no fun becoming a litigation target as the result of your clients' widely-discredited tactics. Although I have a client to represent, I will do everything I can to keep that aspect of the case at the lowest level possible. You have a hard-nosed client to represent too; and I completely respect that.
Merl Ledford III
An Email Transmission of
LEDFORD LAW CORPORATION
805 West Oak Avenue
Visalia CA 93291-6033
Vox 559.627.2710/Fax 559.627.0717
Web Site: LedfordLaw.net
Stay tuned
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Also See:
legal grinder - RIAA vs Kylee Andersen, 10, March 27, 2007
Recording Industry vs The People - Model Letter for Lawyers Representing Defendants in RIAA Cases, March 27, 2007
http://p2pnet.net/story/11785
This message has been edited since posting. Last time this message was edited on 27. March 2007 @ 18:40
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