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Does the RIAA Fear Counterclaims?
NewYorkCountryLawyer writes, "The RIAA seems to have a fear of counterclaims. In Elektra v. Schwartz, a case against a woman with Multiple Sclerosis, the RIAA is protesting on technical grounds Ms. Schwartz's inclusion of a counterclaim against them for attorneys fees. This counterclaim includes as an exhibit the ACLU, EFF, Public Citizen brief in Capitol v. Foster, which decried the RIAA's tactics as a 'driftnet.' In prior email correspondence between the lawyers Ms. Schwartz's attorney had offered to withdraw the counterclaim if the RIAA's lawyer could show him legal authority that its assertion was impermissible, saying 'I wouldn't want to get into motion practice over a mere formality.' The RIAA lawyer's response was 'I will let you know.'"
But see Capitol v. Foster, where the judge held that the RIAA could not immunize itself from liability for attorneys fees by dropping the case, after first tying the woman up in frivolous litigation for a year and a half.
Ray Beckerman +5 Insightful
The Defendant asserts that under 505 of the Copyright Act, "the court may . . . award a reasonable attorney's fee to the prevailing party as part of the costs." Which is actually a straight quote from the law.
Page 14 of the PDF, Page 11 if you go by the internal #ing is the section of the defense's legal brief which discusses the counterclaim issue.
The brief quotes from a SCOTUS case called Fogerty v. Fantasy, Inc.
The Question: Do federal courts have discretion over whether or not to force a loosing party to pay all or part of the victorious party's attorney's fees?
The (Short) Answer: Yes
[Fuck Beta]
o0t!
The EFF/ACLU/Public Citizen brief attached to the counterclaim makes it pretty clear why so many innocent and helpless people are being caught up in the RIAA's "driftnet". It's certainly reckless enough to be equated with "deliberate".
Ray Beckerman +5 Insightful
Only thing, this lady never even heard of file sharing before the RIAA sued her for it.
Ray Beckerman +5 Insightful
1. Was that claim decided yet? The last filing for that case on info.riaalawsuits.us is 10/12/2006 and it is a Motion for Leave to File Reply
2. Even if it was decided for Foster, her case is in Oklahoma (10th Circuit), whereas the Schwartz case is in NY (the 2nd circuit). Two completely different Federal circuits, which means that precendent in either circuit is not binding upon the other, even though both counterclaims are almost exactly the same.
[Fuck Beta]
o0t!
Basically, the Supreme Court of the United States (SCOTUS) has read the federal laws and the constitution as allowing judges wide discretion over whether or not the partys before the court can request that the other side pay all the costs incurred in pursing the suit.
You want to sue me? I'm innocent!
"Yeah, but you can't pay for your legal defense, so you'll lose and have to pay anyway"
That's not fair, your Honor, if I win, will you make them pay for my fees?
seems fair to me.
"gulp"
"Can we drop the suit?"
Sure, but you have to pay the fees she's already incurred.
"Uhm.. let me try to change your mind"
it's your dime
And that's where it is now
-GiH
If you read the record carefully you will see that we offered to withdraw the counterclaim if the RIAA could show us legal authority for their position that the counterclaim was improper, specifically saying to them "I certainly wouldn't want to get into motion practice over a mere formality." They could find no such authority, and never even got back to us, but simply went ahead with their motion. That sounds like frivolous litigation to me.
As to your comment that we should have made a Rule 11 motion, that can be done at any time in the case, and one that may not be necessary, since the Copyright Act gives Ms. Schwartz a right to attorneys fees, on a much lesser showing than would be needed under Rule 11. Rule 11 motions should never be undertaken lightly.
If you're really a first year law student, please don't -- when you get out there -- practice law like these guys do.
Ray Beckerman +5 Insightful
The judge in Foster decided that Ms. Foster is eligible for attorneys fees, and invited her to make an attorneys fees motion. The attorneys fee motion has not yet been decided.
Ray Beckerman +5 Insightful
No. Actually, they're not.
Ray Beckerman +5 Insightful
Sorry if I left out some details. I'm under a lot of time pressure. I don't make a living from writing blogs, posts, and comments. I have to spend at least some time doing legal work too.
It's a case against a woman with Multiple Sclerosis who's never even heard of file sharing until the RIAA came after her. She just uses her computer to communicate with people by email. The RIAA knows this, but doesn't care.
Ray Beckerman +5 Insightful
She didn't download any music.
Ray Beckerman +5 Insightful
Some statutes impose liability on parents for specific torts committed by their children, shoplifting comes to mind as an example in my Jurisdiction (washington state). These are pretty rare though and I've never heard of anybody trying to amend the copyright act to impose such liability.
I guess you're not familiar with the law. Please don't pretend to be.
Ray Beckerman +5 Insightful
http://www.consumer.state.ny.us/clahm/clahm-child
Parents or legal guardians (other than foster parents) can be liable for up to $5,000 in damages for the willful and malicious damage, destruction, concealment, or theft of property (whether publicly or privately owned) by their child, if between 10 and 18 years old. This also includes the actual monetary damages suffered by a school or other public or private victim in responding to the false reporting of an "incident" or placing a "false bomb" by a minor. If damages awarded by the court exceed $500, the parent can ask to have damages limited to that amount they can actually afford to pay, up to $5000, but not less than $500, because of financial hardship.
this would seem to indicate, parents CAN in fact be liable for child actions.. can you resolve please, this difference of opinion?
every day http://en.wikipedia.org/wiki/Special:Random
If you are sued by the RIAA, you must defend yourself (or the court will appoint a defense lawyer for you).
I think you're horribly confused about the legal system...
The courts could care less whether or not you have representation in a civil case, they also dont care if you defend yourself, they dont even care if you show up*.
*Not in the way they care if you didn't show up to a criminal proceeding anyway.
The constitution grants the copyright holder exclusive control over distribution. It is within his right to demand that the infringement end, whether he has suffered financial loss or not.
Unless you can produce a license to distribute content on the P2P nets that sells for $1 a track on iTunes it fair for a judge or jury to conclude that there has been financial loss.
The damages to be calculated according to some judge-made or statutory formula.
http://www.eccpasa.info/safehomes%20legal_conseque nces.htm
General Obligations Law 11-105
Parents or legal guardians of an unemancipated minor shall be civilly liable for said minor who commits larceny against the property of a mercantile establishment to the operator of such establishment in an amount consisting of:
a. the retail price of the merchandise if not recovered in merchantable condition up to an amount not to exceed $1,500.00; plus
b. a penalty not to exceed the greater of five times the retail price of the merchandise or $75.00; provided, however, that in no event shall such penalty exceed $500.00.
so such civil responsibility does exist,
every day http://en.wikipedia.org/wiki/Special:Random
In the federal system only 2% of tort cases end in a trial. Additional Federal Civil Justice Facts at a Glance The plaintiff tends to win, but the odds are little better than a coin toss.