RIAA Victim Wins Attorney's Fees

VE3OGG writes "Debbie Foster, one of the many caught-up in the RIAA's drift-net attacks who was sued back in 2004 has recently seen yet another victory. After having the suit dropped against her "with prejudice" several months back, Foster filed a counter-claim, and has just been awarded "reasonable" attorney's fees. Could this, in conjunction with cases such as Santangelo, show a turning of the tide against the RIAA?"

Comments

Open up your networks!

[Space cowboy]

Sadly, from the article, it looks as though this will not set a precedent that will discourage the RIAA from doing this sort of thing - the judge indicated that the fact the RIAA kept her on as a co-defendent (after they went after her daughter instead) was important in the decision to award costs to Debbie. The strong-arm tactics backfired badly for this particular case - good for her, but not something to discourage the RIAA in general, they'll just have to be a bit less aggressive to defendants.

However...

The bit that caught my eye, though, was the quote

 

Judge Lee could find no case "holding the mere owner of an Internet account contributorily or vicariously liable for the infringing activities of third persons."

Me like. If that can be said to be a precedent, it means anyone with an unsecured WiFi network has a strong argument for not being held liable for anything done on that network - it's open, after all. Anyone could drive by, park, download [insert bad stuff here], and drive off. Unless the prosecution has video surveillance of your house/apartment, it'll be very hard to *prove* who did what.

It seems the best protection may be none at all. How very Zen.

Simon

Re:Open up your networks!

[nebaz]

Judge Lee could find no case "holding the mere owner of an Internet account contributorily or vicariously liable for the infringing activities of third persons."

I can see next year, really early

HR 2008 - 0002 "Secure Communication Relating to Existing Wireless Environment Detection" Act.

(i) Owners of a wireless network will be held accountable for all civil and criminal liabilities associated with any unauthorized copyrighted materials on the network....

Re:Open up your networks!

[cpt kangarooski]

However, this has no bearing on direct infringement.

Leaving a WAP open for anyone to use is not a viable way to defend yourself from infringement suits concerning your direct infringement (as opposed to indirect infringement, which is what the court was talking about). This is because in civil copyright suits there is no such thing as 'beyond a reasonable doubt.' The standard of proof is 'on the balance of probabilities,' i.e. whatever is most likely (even if only 51% likely as compared to 49% likely), is what happened.

In fact, in order to use the open WAP to help yourself, you'd have to prove that someone else probably is the infringer, and not you. The plaintiff can get a lot of help from the fact that you, as the owner of the WAP, a person who is very often in its range, and probably a frequent Internet user, probably do use it the most and probably are the infringer. It's tough for you to argue that someone else did the deed, especially if you don't have anything to point to other than that it's open. In fact, just because it's open doesn't even mean anyone else ever uses it.

Re:Open up your networks!

[Elminst]

Alas, my mod points disappeared today... Or I would have given you an "Insightful" for most accurate acronym for a US law, ever.

Re:Open up your networks!

[Rodyland]

It seems the best protection may be none at all. How very Zen.

War is peace

Freedom is slavery

Ignorance is strength

And now

Insecurity is protection

A few years late, but not unexpected..

Re:Open up your networks!

[David Gould]

One problem is though, such a precedent can also be used to protect criminals such as spammers, frauds, and so on. Don't forget child molesters.

Re:Open up your networks!

[iwan-nl]

While it may be true that the computer illiterate probably won't be held liable for their unsecured network, if the **AA can prove you DO know what you are doing, you won't be able to get away with it. Particularly, if you found out how to secure your system and didn't act on it within a reasonable amount of time.

Why is that? Is it illegal to have an open access point?

I definitely know how to secure my wireless network, but I choose not to. I want people visiting my place to be able to easily connect to my network and the internet. Exchanging lengthy WPA keys every time is too much of a hassle.

On Slashdot...

[Anonymous Coward]

Could this, in conjunction with cases such as Santangelo, show a turning of the tide against the RIAA?

Could /. stop ending summaries with "Could this be the end of <something most /. readers think is bad>?"?

Re:On Slashdot...

[josteos]

Could this, in conjunction with cases such as Santangelo, show a turning of the tide against the RIAA?

Could /. stop ending summaries with "Could this be the end of <something most /. readers think is bad>?"?

Could /. posters stop asking other /. posters to stop summarizing articles with "Could this be the end of <something evil>?"?

Re:On Slashdot...

[Rodyland]

Could /. posters stop asking other /. posters to stop summarizing articles with "Could this be the end of ?"?

Mod parent Funny, by all means, but the previous poster raises, IMO, a valid point.

A quick scan of the front page shows two stories with a "could this mean..." summary endings.

IMO prose like this is redundant at best, and anywhere from condescending (http://it.slashdot.org/article.pl?sid=07/02/07/23 16201) to outright misleading (this article) at the worst, and reads like tabloid journalism and sensationalism at its finest.

I think it rarely adds anything interesting to the article in question, and can be done without.

Just me $0.02

unsecured WiFi

[nurb432]

Even if its secure, its not that hard to break into it anyway.. or just directly compromise your pc with a trojan.. So really in ANY situation you can claim it wasnt you, quite reasonably.

Now, that said, if they get a search warrant and strip your house bare and find that 'backup' cd hidden away with one of the files in question, your quite logical defense melts away like an ice cube in hell.

Re:unsecured WiFi

[Drooling Iguana]

Because the rest of us are commoners. Different set of rules.

"Precedent"

[spiritraveller]

Me like. If that can be said to be a precedent, it means ...

Some explaining is in order.

I know y'all aren't lawyers, so I shouldn't expect you to get the lawyer-speak right, but I have noticed lots and lots of misuse of this term.

"Precedent" in the context of a court's decision doesn't mean much at the trial court level.

That's because a court is only bound by the decisions of the courts ABOVE it. Since a trial court is basically the lowest court, you don't have trial courts setting "precedents" that anyone has to follow.

Appeals courts set precedent that the trial courts (aka district courts) must follow within their circuits. The Supreme Court also sets precedent that the Courts of Appeal and district courts must follow. But district courts do not set precedent that anyone else must follow.

I suppose any time someone decides something it can be called a "precedent". But usually, when we say that about courts, we are talking about something that has to be followed.

A court does not have to follow its own precedents, though they tend to do so, absent a good reason to change course. This tendency is called stare decisis, and it is not a requirement. The Supreme Court reverses itself fairly regularly, and that's why some people worry that Roe v. Wade (or another decision) might get overturned.

While a district court sets precedent in the sense that decisions in that same court will probably follow it, they do not set precedent that anyone outside of that court's jurisdiction needs to follow. Someone else may or may not find that judge's reasoning persuasive.

RIAA already won

[meme lies]

Do you honestly think the RIAA gives a damn? They would rather win, yes, but this isn't about the relatively trivial (to them) judgements and legal costs. This was a P.R. campaign. They wanted parents to stop their kids from downloading gig upon gig from Kazaa. They wanted colleges to monitor what their students were up to on the networks. They wanted the average user to always have a nagging fear every time they went to Limewire.

I think it's pretty despicable*, but it was (unfortunately) very effective, much more so (and probably cheaper than) a typical ad campaign. Yes, there are other ways they could have done it, I am not saying it was right; but to think any legal setback (other than something extremely catastrophic, such as ordering them to pay ALL legal fees for all past cases plus emotional distress or something like that) will make them consider the campaign a failure is just foolish. If they lose a case there is nothing to stop them from filing more; it's the front-page news alerts that another thousand have been served that they are after, not the judgements themselves.

  And anyway, even if they were to stop tomorrow, they could do so comfortably knowing that they already won-- "piracy" has been stygmatized, and casual users are afraid.

* I would go so far as to say no corporation should be able to sue an individual under any circumstances, but that is a different discussion.

Re:RIAA already won

[Todd Knarr]

Actually I think they do care. One of their tactics has been to drag things out to where people settle simply because it's cheaper. This decision hurts that tactic two ways. First, it calls into question the RIAA's assertion that merely being the registered owner of the IP address they claim was involved is sufficient. And second, it provides precedent a defendant can cite in future cases for making the RIAA pay defendant's attorney's fees if the RIAA can't prevail. Those two things make it more likely a defendant will take the "Prove it was me at the computer." defense further and go for a win instead of settling. And now it's on the record in an actual ruling by the court. It's a published ruling future defendants can cite as settled case law and which the RIAA will have to overcome. That's one of the things they really really didn't want to have happen, which is why they squirmed so hard to try and avoid a dismissal with prejudice.

Re:RIAA already won

[NewYorkCountryLawyer]

You are exactly right, Todd. This is a major precedent. In fact, I cited it in court papers today -- the day after the ruling came down.

Re:Oh gods, not "think of the children" again!

[StikyPad]

It sounds like *you* need to learn to think from the gut!