RIAA and SDMI Letter to Judge Brown
June 21, 2001
VIA HAND DELIVERY
Honorable Garrett E. Brown, Jr.
Dear Judge Brown:
We are writing in response to Ms. Grayson Barber's June 15, 2001, letter to Magistrate Judge Wolfson in the above-captioned case. We are not certain that Ms. Barber's letter is a proper application (see, e.g., Local Rule of Civil Procedure 65.1), but we respond out of an abundance of caution. We have been retained to represent the Recording Industry Association of America ("RIAA") and respond on behalf of our client. The Secure Digital Music Initiative Foundation ("SDMI"), also a defendant in this case, is in the process of obtaining separate counsel. However, we can represent to the Court that the statements contained in this letter pertain to the SDMI as well.
The RIAA and SDMI have expressed to plaintiffs as directly, uneqivocally, and plainly as possible the fact that neither the RIAA nor the SDMI will file any lawsuit over the plaintiffs' scholarly papers identified in their complaint. Thus, with respect to the RIAA and SDMI, there is no longer a justiciable controversy before the Court. Accordingly, we respectfully submit that Ms. Grayson's request for an expedited pleading and discovery schedule is inappropriate and unncessary as to the RIAA and SDMI. If this case is not voluntarily withdrawn, we intend to file a motion to dismiss on or before July 2, 2001, the date on which our responsive pleading is due. It is our view that entangling the Court in emergency relief and preliminary injunction motions at this date will simply burden the Court and counsel unncessarily.
Plaintiffs filed their declaratory judgment complaint alleging that they desired to present particular research papers at a conference but feared retaliatory litigation by defendants. However, plaintiffs sued in spite of the repeated public statements that neither the RIAA nor the SDMI intended to file such litigation. As the attached June 15, 2001, letter from Matthew J. Oppenheim, Esq. reiterates, the RIAA and SDMI have clearly and repeatedly informed plaintiffs that neither the SDMI nor the RIAA will institute litigation with respect to the papers identified in the complaint. Further, one of the other defendants in the case, Verance Corporation, has formally represented in writing that it joins in this position (letter to plaintiffs' counsel from Mr. David Leibowitz, dated June 18, 2001, also attached hereto.) As Mr. Oppenheim stated in his June 15 letter, we "frankly don't know how we could have been any clearer."
It is plain, therefore, that there is no justiciable cas or controversy which justifies continuation of the litigation against these entities. In response to Ms. Barber's invitation, we have indeed "explore[d] other options for resolving this dispute in a timely fashion," and we hope that we can quickly agree to a reasonable resolution of this matter. But in the interim, this Court should not be burdened with the need to schedule and adjudicate a preliminary injunction motion with respect to a plainly supererogatory declaratory judgment action. As we have indicated, we are prepared to file a motion to dismiss in short order, shoudl that be necessary. We hope we will not have to do so.
Finally, we do want to emphasize our willingness to be available for a status conference at the Court's convenience, either in person or by telephone, to discuss these matters further.
Karen A. Confoy
Please send any questions or comments to firstname.lastname@example.org.