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.'"

Comments

Re:Duh

[NewYorkCountryLawyer]

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.

Re:Turkeys hate Christmas. News at Eleven

[TubeSteak]

I'm still trying to work out the story here. The submission appears to be saying that the RIAA doesn't like being countersued.

The RIAA is trying to claim that the defendant has no legal basis upon which to assert a counterclaim for attorney's fees.

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

Re:Turkeys hate Christmas. News at Eleven

[NewYorkCountryLawyer]

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".

Re:The problem with juries

[NewYorkCountryLawyer]

Only thing, this lady never even heard of file sharing before the RIAA sued her for it.

Re:heh

[GodInHell]

It doesn't get alot more clear than the explanations above.

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

Re:Duh

[NewYorkCountryLawyer]

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.

Re:Duh

[NewYorkCountryLawyer]

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.

Can you rebut this?

[way2trivial]

I'd often heard NY parents have liability over the action of their offspring, and you claim that is not the case, so I did a minimum of research and turned up the following example
http://www.consumer.state.ny.us/clahm/clahm-childr en.htm#Parental%20Liability%20for%20a%20Child's%20 Actions
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?

Re:Can you rebut this?

[NewYorkCountryLawyer]

Sorry if I was curt with you. Parents are not liable for their children's copyright infringement. If you want to do research read MGM v. Grokster. It will spell out for you in great detail what a plaintiff needs to prove to hold X liable for Y's copyright infringement. You won't find anything in there about X being Y's parent. If you want to read further, you might want to look at this essay published by the Electronic Frontier Foundation on parental liability.