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

Yes

[Anonymous Coward]

Most extortionists do.

Duh

[TubeSteak]

The RIAA has always had the backup power to just drop a case that they think they're going to lose.

If people start filing counter claims, then the RIAA has no chance of dropping the case without getting dinged for lawyers fees.

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:Duh

[MikeJ9919]

I think this is exactly what's going on. The RIAA is worried that they'll get locked into mutual litigation. Once that happens, if defendants win, they start stacking up precedents, both binding and persuasive. More importantly, the media publishes every single story where the defendant not only got sued by the bloodthirsty RIAA, but "Look, they won, so they must've been right, and the RIAA must've been wrong!" Suddenly everyone starts asking how many of these lawsuits are actually valid.

However, the original poster seems to be spinning this. Take whatever I say with a grain of salt because I'm only a first-year law student, but a 12(b)(6) objection is not merely technical. It's the most basic defense in federal Court to frivolous claims. If I give you a dirty look, for example, that's not nice, but it's not a crime or even an offense for which you can sue. I don't know the case law on point and (again) I'm only a first-year, but it doesn't look like this clause of the Copyright Act is something for which you can directly sue. It looks like exactly what the RIAA says it is...a cost-shifting provision the Court may impose as part of a final decision. If the defendant really thinks the RIAA is making a frivolous claim, they shouldn't be filing a counterclaim, they should be filing a Rule 11 motion, which allows the Court to punish frivolous claims.

However, I can understand why they're reluctant to do this. Some commentaries believe Rule 11 has been eviscerated over the years. In its current form, it allows the party being accused under it to simply withdraw the claim, motion, etc. within a specified safe harbor period and face no repercussions. It's supposed to encourage more civilized litigation, open discourse between the parties, etc., but some think it's swung too far in the direction of letting people throw out whatever ridiculous thing they want. Again, my analysis of the whole thing may be way off, but I hope it's not (or my civ pro grades may not be as good as I hope they will be.) Hope it helps.

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.

heh

[stoolpigeon]

i eagerly await someone, lawyer or not, who is willing to explain this in plain english - i read a bunch of the links and i still don't understand 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: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

[Anonymous Coward]

I've tagged this "FUD"

Well since you've started it, you might as well finish the job by including the 'notfud' 'yes' 'no' and 'maybe' tags.

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".

The problem with juries

[EmbeddedJanitor]

If the RIAA just stuck with points of law, then they'd probably be doing OK. However, they lose it when they start trying to play the "starving artist" card. They get into trouble when they try pull on the jury's heartstrngs because that is quite easily countered for many defendants.

My "single-mom with multiple sclerosis" beats your "starving artists".

If they just stuck with a straightforward legal approach, they might fare better. ie. Just because you're a single mom with multiple sclerosis does not give you a right to steal music/software any more than it gives you a right to deal drugs.

Re:The problem with juries

[NewYorkCountryLawyer]

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

Re:The problem with juries

[Anonymous Coward]

Actually, Mr. Beckerman appears to be quite honorable and exhibits decent ethics. Not only that, he actually takes time to respond to criticisms, questions, and even assinine insults like yours, without resorting to attacking the poster.

I wish more attorneys were like that. I have had clients who are attorneys in the past and I value less than pond scum, with morals/ethics that are below the most cowardly of terrorists. Some of the stuff they'd contrive just to win a case are abominable. They stoop to character assassination and the like rather than arguing based on law. Mr. Beckerman does not appear to be that type.

If you ever are on the receiving end of an RIAA case, you will grow to appreciate the likes of him. The RIAA seems bent on arguing away Fair Use, inventing law as they go along and use racketeering techniques in their anti-progress campaign, rather than working with their customer base and embracing new technology.

RIAA: if you're reading this, Napster directly resulted in my purchasing well over 100 CDs (possibly over 200) while it was live, because it introduced a try-before-you-buy solution. I discovered jazz (like Herb Alpert) and other instrumental music I would never have considered purchasing otherwise. Sadly, the only solution now is listening to partial track selections on Amazon, and I rarely base my decision on that because they invariably pick the worst part of a track to exhibit on their site. So, since then I download from Creative Commons sites (free/free music!), listen to classic rock, classical, and talk radio, and generally go out of my way to refrain from exposing myself to new content because I do NOT want to be your customer. The only CDs I've purchased since Napster's demise are:

  David Gilmour's On an Island
  Pink FLoyd's live Wall album
  Hmm, there was another one I can't recall

So basically, Napster conduced me to buy more CDs over the course of 12 to 18 months it was at its peak than I did in 13 whole years I owned CD players previous to that. The rest of the content I have is recovered from old cassettes (yes, I still have hundreds of cassettes lying around along with a decent tape deck) and processed in Audacity to reduce noise and recover the highs, so I have enough music to keep me content between my existing collection and creative commons sites that I do not need your content. Embrace the try-before-you-buy model or go the way of the do-do as new bands grow wise to your racketeering methods and decide to openly distribute share their own content WITHOUT major label affiliation.

In summary, to be straight to the point as concisely as possible: Fuck you, RIAA members!

Non mutual collateral estoppel

[Anonymous Coward]

What they are afraid of is the legal concept of "non-mutual collateral estoppel."

Take for example, "Is the IP log showing the IP assigned to you by your ISP was involved in sharing enough for a copyright violation?" If the RIAA litigates this question, and wins, they win that case. They will have to litigate that issue against with the next defendant, and so on, because the next defendant may have different arguments.

But if the RIAA loses, they can not get a second bite at the apple by tring the same argument on a different defendant. They have litigated that issue, and lost. They are "estopped" from relitigating that particular issue.

This is common in the patent litigation, where just becuase you won 10 patent infringment suits, the 11th defendant can still beat you, but once ANYONE has beaten you, you lose from then on on that legal issue.

If the RIAA ever loses, you can bet that 1) they will appeal, and 2) while the appeal is pending, they will pay the defndnat a bazillion bucks to "settle" with vacation order, which will nullify the decision. And if you think they won't or can't, the insurance industry has been using this exact tactic for decades.

Relevance?

[TravisW]

I appreciate NewYorkCountryLawyer's insight into many of the legal issues discussed here, but the summary seems misdirected.

The summary describes a "case against a woman with Multiple Sclerosis," and the lede of the P2PNet article is, "RaeJ Schwartz is a mother in Queen's [sic], New York, who's been seriously disabled by multiple sclerosis, a chronic, crippling disease of the central nervous system." Neither makes any further mention of her disease or disability, or any mention of how either affects the case, so we're left to guess: Is the implication that the RIAA is particularly unscrupulous for bringing a suit against someone with a severe medical condition, and that it should hence be additionally vilified accordingly? This leaves unanswered the basic question of why her disease should affect our analysis of the situation. My best guess: MS can severely limit mobility, so the implication is that her disease prevented her from downloading. (How likely is this? I'm ignorant of the practical specifics of the disease.) If this is the implication, it should have been included in the summary.

Instead of name-dropping her disability and saying no more, the summary ought to have included something more relevant, like "a case against a woman who has a severe medical condition preventing her from conventional computer use" or "a case against a woman who likely never downloaded any music" (as was suggested in the P2PNet article, though this would deserve more explanation, too).

Re:Relevance?

[NewYorkCountryLawyer]

If you don't think that compassion and decency have a place in the law, I feel sorry for you.

I don't share that outlook. I wouldn't have gone into the legal profession I did. I came here to help make the world a better place, not a worse place.

Ms. Schwartz is a very sick woman who didn't infringe anyone's copyrights. The RIAA's lawyers are aware of both of those facts. They should have dropped this case, but they and their lawyers are ghouls. In my view anyone who doesn't get that it's wrong to persecute helpless people this way isn't my kind of people.

I suggest you read what Jordan Glass had to say about these lawsuits in an excellent article on p2pnet.net.

Sorry if you feel I "weaseled" out of answering the question. I think I did answer it.

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.