So far we've had grandmothers, dead people, disabled single mothers, and today, we can add another category to the list of those targeted by the RIAA: the homeless. Earlier this week, the RIAA decided to voluntarily dismiss the lawsuit against Chaz Berry after learning he was living in a homeless shelter—but not until after a magistrate judge denied an earlier motion for summary judgment and recommended sanctions against the RIAA's attorneys.

Berry was sued by the RIAA in February 2007 for copyright infringement after an IP address logged by MediaSentry on a P2P network was traced back to his AOL account. When the time came for Berry to be served with a copy of the complaint, the RIAA discovered that he had vacated his apartment. A pretrial conference scheduled for April 19, 2007, was postponed for 60 days at the labels' request, due to the RIAA's professed inability to serve Berry with a summons at his last-known address.

The RIAA said in its April 17 filing that it was "conducting a thorough address investigation" so it could serve Berry with a copy of the summons. But that wasn't quite right: it turns out that the RIAA's process server slapped a copy of the summons "in a conspicuous place" at Berry's last known address on April 9—a full eight days before the RIAA said it couldn't locate him. The process server's attempts were detailed in an April 25, 2007, affidavit completed by the process server, who also said that a copy was sent via first-class mail to the same address.

In June 2007, the RIAA moved for a default judgment against Berry. In his Report and Recommendation issued in February of this year, Magistrate Judge Kevin N. Fox criticized the RIAA, calling its representation that it had made every effort to locate Berry "disingenuous." He found that the RIAA's statements were "not made in good faith" and recommended the imposition of sanctions against the RIAA's attorneys.

At some point after the release of Magistrate Fox's report, the RIAA discovered that Berry was living in a homeless shelter. At that point, the labels apparently decided not to pursue the case any further and have filed no objection to last week's denial of their motion for summary judgment. In addition, the RIAA has voluntarily dismissed the case with prejudice.

The case has been dismissed without prejudice, with presiding Judge Harold Baer, Jr. deciding not to subject the lawyers to sanctions. "Their excuse here is the well-worn 'clerical error,' i.e., the office clerk 'mis-calendered this date,' and they 'sincerely apologize' for their failure," wrote Baer. "Once again, while Plaintiffs' lawyers... must keep careful records of deadlines and all court days, the error is not sufficiently akin to a contempt of court."

We contacted the RIAA to get its perspective on the case and, in particular, why it is dismissing Warner v. Berry without prejudice, which would allow the labels to sue the homeless man again should his circumstances change. "As you know, there may be lots of specific reasons that can cause a dismissal of a case without prejudice," RIAA spokesperson Cara Duckworth told Ars. "We recognize and evaluate the particular circumstances of each case, including this one, always endeavoring to be fair and reasonable while protecting our rights." Duckworth also assured Ars that the labels have no intention of suing Berry in the future.

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