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SCOTUS Asked To Decide On Legal Fees In RIAA Cases
Fogerty's ghost notes that the Supreme Court has been asked to decide whether exonerated RIAA defendants should automatically be awarded attorneys' fees. Texas resident Cliff Thompson was sued by the RIAA, which subsequently dropped its copyright infringement lawsuit after it determined that his adult daughter was the culprit. Thompson was denied attorneys' fees by the district and appeals courts and is asking the Supreme Court to weigh in on the matter. "In the petition for certiorari filed with the Supreme Court, Thompson's attorney Ted Lee lays out the RIAA's legal strategy and notes what he describes as the 'inherent unfairness' of the lawsuits... The fight between the RIAA and alleged copyright infringers is inherently unbalanced due to the vast financial resources available to the record labels. The risk-reward ratio for defendants is seriously out of kilter, and mandating that a successful defense — even if it comes from the RIAA's decision to voluntarily dismiss a case — results in the record labels picking up the tab would even things out."
I met this dude on Soulseek who says he's David Souter, so I'm sure the supremes will rule fairly.
they send for every IP address. Lets see how long does it take them to get bankrupt
They called me mad, and I called them mad, and damn them, they outvoted me. -Nathaniel Lee
Any /. lawyers care to explain why the defendants would be unable to collect for legal fees on these lawsuits? I'm not terribly versed in how this legal stuff works, but I was of the understanding that in any case, if I am wrongfully taken to court, I am allowed to counter-sue for legal fees. I thought that was part of the balance that kept people from suing just for fun with no repercussion.
What is the difference with these lawsuits the RIAA is bringing?
Proudly supporting the Libertarian Party.
but they should be allowed one solid punch to each of the RIAA lawyers. Above the belt if its a some what reasonable case, or bellow if its one of the "computer illiterate grandma" types.
In addition, their punch should be able to be done by a third party proxy to make sure it hurts. And thus a new service industry could be born.
"Have you ever thought about just turning off the TV, sitting down with your kids, and hitting them?"
They sent out the invitations to the party, they get to foot the bill.
Laughter is the Spackle of the Soul.
This might set precident if SCOTUS rules in favor of it for the US going to a loser pays court system which I think would be a great idea.
Why isn't this the standard, anyway?
I can see why people argue that having the losing side shoulder all legal fees is a bad idea (even if I'm not sure I necessarily agree), but if somebody sues YOU and then just drops the case later on before there's actually any decision, why shouldn't they be required to reimburse you for the trouble they caused you for absolutely no reason at all? I'm not talking about millions in damages, but paying your lawyer fees and so on would be the least you'd expect.
Prediction: The real iPhone killer is going to be sex robots from Japan. Think about it.
These "ZOMG SCOTUS to fight RIAA in cage match!!!" articles I have seen floating around the tubes seem a bit misleading. Thousands of litigants petition the Supreme Court to grant cert every year, and the court ends up accepting only a few dozen cases.
Although a split among the circuit courts makes it more likely that the SCOTUS will grant cert, it by no means makes it a certainty.
The most significant thing that would curtail frivolous lawsuits in this country would be the requirement that whoever loses a case or drops out has to pay all of the legal fees.
The only lawsuits filed would occur when the party pressing charges is sure they have a case and a significant enough chance of winning to risk it.
In the case of the RIAA they would stand to lose far more than they could gain with their extortive tactics.
However, this issue has nothing particular in common with the RIAA itself. Slashdot readers should know that within US legal system (common law, precedents, etc..) simply there's much different way of arguing things before the court. Almost everythig must be brought before the court. Within so called "continental law" (civil law, etc..) in most of the morld reimbursing attorney fees to the winning side of the case is a rule rather then an exception that has to be argued specially.
it should include HIS time. This was a frivoulous lawsuit and was brought PURELY to harass and set examples. If **AA's are forced to pay legal fees, and the aquited defendant's time (which is probably even more than the legal time), then it would be fairer. Of course, that begs the question, can there be such a thing in a harassment law suit?
I prefer the "u" in honour as it seems to be missing these days.
Just "picking up the tab" is woefully inadequate. Defending oneself against RIAA action requires a tremendous amount of time, requires one to front a whole bunch of money to an attorney, and places a huge amount of stress on the person being sued. None of these apply the the RIAA -- their attorneys are being paid to do the lawsuits as their regular day-to-day jobs, the expense of the lawsuits is inconsequential and part of expected, budgeted business expenses for the RIAA, and the lawsuits impose no particular stress on the RIAA or its attorneys.
What needs to happen in these situations -- that is, when $BIG_COMPANY sues an individual and drops the suit or loses -- is that substantial punative damages need to be assessed to compensate the individual for lost time, their savings being used unexpectedly (what if they were planning to use that money for a new car or needed home repairs? What if they had to stop contributing to their retirement savings to pay their lawyer?), and for the stress of the lawsuit on the individual. Only with substantial punative damages will the RIAA have enough disincentive to file poorly-researched "shotgun"-style lawsuits.
I would think not paying a single red cent for something you didn't do would be quite the incentive. I must be frank, if you are right and you know it, you have a duty to fight. Rolling over because it's easy is both personally and socially irresponsible, and the fear of personal bankruptcy isn't one that would deter me. YMMV.
It's easy to see why an entity like RIAA should be forced to pay legal fees if it loses or drops its case, but making that award automatic would be even worse in the long run.
If a person sues a chemical company for polluting a lake, and the company gets off, it will wreck the person who tried to sue. A few million is corporate discovery costs and lawyers it too much to risk.
I think the relative difference in resources between the litigating entities should be considered. In the "david vs goliath" scenario, david should never be made to pay and goliath should be made to pay upon loss. That is hard to codify into law.
If you do that, then nobody would DARE to sue IBM, MS, or whoever. MS pays their lawyers better than any other corporation in the industry. Imagine MS being able to run amoke, says that you can sue them, and of course, makes certain that your funds and lawyer's fund will give out LONG before they agree to anything. Now, you are stuck with their bill. If you are person, you just declare bankruptcy. If you are a business, MS owns you. No lawyer will take this on contigency.
I prefer the "u" in honour as it seems to be missing these days.
As long as it's enacted for criminal law too.
So, currently, it's a very effective extortion racket.
You are being MICROattacked, from various angles, in a SOFT manner.
http://www.reason.com/news/show/29696.html
The court (and I'm not European, so some clarification would help) reviews the billing and allows the loser to challenge the costs. Since loser pays is prevalent in Europe, and people sue "IBM, MS, or whoever" in Europe, I'd have to say it works well enough.
I think that a loser pays system would work if it worked like this:
Only if you actually LOSE your case, as in you get a bad VERDICT, should you have to pay.
Of course, there will be an incentive to drop a case, but the incentive will probably fade if you have a solid defense or offense.
This is patent law I'm talking about, prior art doesn't matter!
Prediction: The real iPhone killer is going to be sex robots from Japan. Think about it.
How so? I consider the protection of my reputation to be worth something. I also consider my personal freedom to be worth something. If I have the money, there's nothing "fiscally irresponsible" about using it for something I consider important.
If you were told that with 20k you could protect a large portion of the population from future abuse, would you do it? I have ot think, based on your post, you would rather pay 2k to protect yourself instead. Am I wrong?
With the number of lawsuits the RIAA throws out, this will pressure them into not only having better evidence but 'real geeks' answering tech questions in court instead of noobs saying what their puppet master tells them.
I look forward to a time where if the RIAA sues someone and at the last minute drops the case because they're about to lose - that they have to pay to get out of the lawsuit. In fact I'd like to a fine equal to the amount they sued for being given to the defendants if the RIAA runs from a case they start.
If this is declined - we're going to see many more lawsuits from the RIAA because they will have free license to sue anyone without risk beyond their own legal costs.
I'm definitely not a lawyer, but it seems to me that common sense and fairness never actually enter into a legal argument. There's precedence and the lack thereof, but never "it's not fair."
If the supreme's sided with him it sets up wide ranging precedent for which I doubt any of the justice's want to stick their neck out.
http://www.maxineudall.com/2010/02/should-economists-be-sued-for-malpractice.html
I live in Canada, and we have a loser-pays system. I recently moved into a house where there were lots of "hidden" issues, that - unfortunately - went beyond your standard home pre-inspection. Among them, a dryer which had a loose vent (and was venting superheated air into a nice pile of dry lint) - that you couldn't see without rearranging half the laundry room, a range-hood that had the exit-vent sealed up, and a fuse-box in which hidden under 4 of 6 fuses were nicely scorched pennies. An inspector will go over obvious things, but he generally won't pull fuses or otherwise rearrange major appliances as it can seriously disrupt the home for the current occupants.
I'm not so much pissed about the cost of repairs as the potential that these had for *killing* me, especially the fuse issue (in having the power turned off and pulling the pennies, several fuses were badly scorched on the inside, the pennies themselves had some nasty and deep burn-marked, and the fuse-box itself wasn't in great shape. It's a condo, so it doesn't even cost to have the box replaced, it's done by the condo corp so this is just pure cheapness/laziness.
I know that I can put at least one of these things against the former owner, as the nice thing about pennies is that they have dates on them (so a 2007 penny couldn't have been used in a fuse-box prior to 2007)... but what exact charges I want, or how much it costs to stick them I don't know. This is not to mention the initial legal fees that I would be burdened with in addition to the repairs I'm currently doing... and the somewhat frightening possibility that Mr do-it-yourself handyman may have other potentially deadly surprises hidden somewhere. With all this, there's still a possibility I could lose (homes are pretty much "buyer-beware" but I'm looking at something more like "negligence" or "endangerment" charges. I'd also like to make sure that Mr. Handyman doesn't kill his wife and two children in the new house by attempting more half-ass patchwork. The potential that bringing up a lawsuit would have me have to pay both my own and the defendant's legal bills is pretty frightening though... and one I'm very jittery about chancing.
Approximately 7,500 people ask the US Supreme Court to change an appeals court decision* each year. The Court denies certiorari (that is, more or less completely ignores) all but about 80-150 of those requests each year. Even if the case is selected by the Court to be heard, the Court may still not give the person what he's asking for.
Just by the numbers, this case has about a one and a half percent chance of getting heard.
--YIIALBIANYL. GYOGDL. YMNO.
*Every one of those 7,500 people claims that there is some vital legal dispute that needs to be harmonized for the good of the nation. In 98.5% of cases, the Court tells them to 'talk to the hand.'
My understanding is that the prevailing party gets fees awarded in copyright cases. The question is whether one "prevails" if the other side withdraws their lawsuit. IMHO, yes, but that's a personal opinion I'm not basing on any law.
...
Given that they're appealing to the Supreme Court, it would seem that they lost on that issue during appeals (i.e. the first court gave them fees, the RIAA appealed and won, now they're asking the Supreme Court to step in). The problem is that the Supreme Court has VERY limited jurisdiction (which is spelled out in the Constitution) and doesn't have to listen to any other cases if they don't want to. So people ask them to grant cert (even lawyers hate spelling certiorari out) and listen to their case.
They overwhelmingly reject petitions to grant cert. They generally only step in when they're convinced that one of the following apply:
A) It's really important to them (e.g. Florida recounts in 2000)
B) There's been a circuit split, so half the country is interpreting the law differently.
C) They want to articulate a new standard in law (e.g. Ring v. Arizona).
They vote on whether or not to grant cert, I believe it's 4 of the 9 who have to approve it before they'll hear the case. By and large, they overturn most of the rulings they hear, or else they send them back to the lower court with instructions. There wouldn't be much point, otherwise, because if the rulings were fine, they'd remain intact if the Supreme Court ignored them, and they have too many cases to waste time.
I should also mention that they may just take a case, then publish a written opinion based on the paperwork they see from the lower courts. They don't even have to let you argue, although they do have oral arguments often enough. And those are basically free-for-alls where the Justices pepper you with questions. It's nothing like a regular trial.
So I have three points:
A) Don't expect them to grant cert (the RIAA has probably already won this one, the bastards).
B) If cert is granted, expect them to lose. I doubt they'll argue it, but who knows? They can do almost anything they want.
C) This is not the start of a loser-pays system. We already award court costs & attorney's fees (those are two different things) on a case-by-case basis. At most, this would make fee recovery automatic only in copyright cases. Personally, that makes sense to me. If you don't know whose copyright it is, don't sue. See also: SCO v. IBM
Attorneys fees in copyright cases can be, **but do not have to be**, awarded to the "prevailing party." See 17 USC 505. This is different from most cases under US law, in which a prevailing defendant typically isn't entitled to seek a fee award. (BTW, if a copyright plaintiff did not have timely registration of its copyrights, it cannot get attorneys fees even if it prevails. See 17 USC 412) Contrary to some of the comments (which I strongly suspect are not from attorneys, much less copyright specialists), you do *not* have to file a counterclaim in order to get fees as a prevailing defendant in a copyright case: you merely file a fee application seeking fees and costs at the end of the case, and the court rules on it as they would any motion.
The law is very well-settled that the decision to award attorneys fees in a copyright case is a matter committed to the sound discretion of the district court -- which is lawspeak for "whatever the trial court decides is going to hold up on appeal except in very rare situations." I read the chances of Los Supremos granting cert on this one as between extremely slim and none, and the chances of them granting cert and holding that a prevailing defendant -- even one who prevails against the RIAA -- **automatically** getting fees to be absolutely zero. It's just not gonna happen, folks.
As a matter of policy, *should* prevailing defendants be automatically entitled to fees in copyright cases? Perhaps. However, given the clear language of section 505, if you think that should be the law, you need to be petitioning Congress, not the Supreme Court.
Considering that the general impression is that the RIA really doesnt know who's committing the crime, these lawsuits seem frivolous. I think automatic compensation for innocent defendants is the only thing that would encourage the RIAA to do a better job on their end.
http://www.pointoflaw.com/loserpays/overview.php
http://www.reason.com/news/show/29696.html
If any of what you claim in your post were true, then we wouldn't see lawsuits in "loser pays" countries (which is essentially, the whole civilized world apart from the US and a few other countries).
Since we do see lawsuits in "loser pays" countries, the only logical conclusion is that your post is incorrect about the consequences of a loser pays system.
I know that we sometimes like to argue points based on hypotheticals, as you have, but the counter to your hypotheticals is a ream of data from courts from around the world. Data > supposition, in my opinion at least.
First, let me point out that I am not a lawyer, though I have taken a class that covered some of this stuff.
...
That said, recovery of court costs & attorney's fees is NOT automatic, nor will this case make them. We treat different types of cases differently. In SOME of those, there might be automatic or nearly-automatic awards. At most, this case would have the prevailing party awarded money in copyright cases, not all of them. Attorney's fees are also generally limited to being "reasonable" but I put that in quotes because they can still be rather high.
Anyhow, even if fees & costs get awarded by default in all copyright cases after this (and that will still require the Supreme Court to grant cert, something it does NOT do for most cases), I don't think that's a bad thing.
I mean, if you don't know who the copyright belongs to, why sue? See also: SCO v. IBM
That, in fact, is exactly what happens in most of the rest of the world, and lawsuits seem to go on just fine.
http://www.reason.com/news/show/29696.html [reason.com]
The fact that loser pays works virtually everywhere else really calls into question the validity of most anti-loser pays arguments.
SCOTUS grants less than a percent of all cert petitions, and in this case the ruling would set a widely applicable precedent, which is precisely why they wouldn't even look at it.
I can assure you, the best way to get rid of dragons is to have one of your own.
All i can say (not knowing the ins and out of the legal systems from around the world) is that "loser pays" seems to work well in most places, and the US legal system is a laughing stock and has been for years. In light of that, I have to believe that most of the objections you raised have solutions.
Ultimately, one thing certain. Loser pays exists, and the problems you expect from a loser pays system don't seem to hinder the system. Long term success is a much stronger argument than "hypothetical scenario x" in my opinion.
The U.S. Supreme Court receives 7,000 or so petitions for review each year. It grants 150. About a quarter of these will ultimately be disposed of in single line or less.
The screening process begins with the Court's law clerks, who sift through the petitions and settle upon a select few that they deem worthy of consideration by the justices. Next, inside a closed conference room, the Chief Justice leads the meeting in which the Justices discuss the petitions and vote aloud on which cases they find more significant and deserving of deliberation. Voting begins with the Chief Justice and is followed by the Associate Justices according to seniority. The most junior Justice...takes the handwritten notes that will be passed to a clerk for public announcement... To be considered, a case must receive at least four votes. Whether or not a case is accepted "strikes me as a rather subjective decision, made up in part of intuition and in part of legal judgement," Rehnquist wrote in his book, "The Supreme Court: How It Was, How It Is." In deciding whether to review a case, the Court will generally consider whether the legal question was decided differently by two lower courts and needs resolution by a higher court, whether a lower court decision conflicts with an existing Supreme Court ruling, and whether the issue could have broader social significance beyond the interests of the two parties involved. However, not all cases of significant social issues needing resolution are accepted by the Supreme Court.
A History of the Supreme Court
In general, the idea of granting legal fees to the winner is something that is a tricky balancing act for fairness.
Most of the time, the person filing the suit should not get their legal fees, because most of the time, if the outcome isn't enough to justify the fees, why did you file in the first place? Generally, if you need to sue someone, the harm should be worth the cost to the society at large (court costs) and worth the legal fees or why did you sue?
The idea of granting fees to a winning defender is more interesting, but suffers from the problem of unequal footing. If I want to sue Microsoft or Google or Ford, they can immediately pile up bazillions of dollars of legal fees in their defense. If I lose, I lose _everything_ for the mistake of suing them. I might even be in the right, but have lost because their lawyers were better, and I would be punished for the temerity of suing.
Therefore, in the case of successfully defending against a lawsuit, the standard in the US has long been that for the defender to get their fees, they need to prove that the lawsuit was more than just wrong, but was somehow evil, that it was frivolous, or harrassing, or otherwise created with the full knowledge that it was without basis in the first place.
In the case presented here, the district court, and the appeals court both said, "The owner of the IP address is a reasonable target to sue. If you find out that he wasn't the one who infringed, well and good, we dismiss the suit, but that didn't make it frivolous."
That's not a COMPLETELY ridiculous position. Of course, we know, and the defendant claims that the RIAA makes no effort to confirm identity before it sues, and that therefore, the suit was frivolous in that sense, but on face, the idea isn't insane, only their implementation of it.
The problem is, if we change the rules so that the successful defendant AUTOMATICALLY gets their legal fees, the precedent will not be restricted to RIAA cases, and the chilling effect on consumers may well be "bad"
Most of that badness can be eliminated by a system of caps on recovered fees similar to the cap on legal fees for lawyers working on social security disability cases, but that requires legislation, and should not be put into place by an activist judiciary.
I would call it "standing up for what is right". In that context, is it really so stupid?
I understand that you're afraid, this is just a person difference between you and me. In this case, however, I have to ask, what good is money if you've sold your principles? It's possible that you could retire with a clear conscience, but I would have a very hard time living with myself knowing that I admitted guilt that didn't exist, and worse, not trying to prevent others from being similarly abused.
Again, it's simply a difference in values, you value the wealth you have and the comfort you've acquired, I view my wealth (HAH!) as a tool I use to live my life by the principles I believe in and in the manner I choose.
A serious question, what good is all that wealth if you're not willing to use it to protect yourself? Don't you see the slippery slope there?
If you move in to a property, you have (I think) three months to raise any issues with the house you purchased. Any issues likely to have been extant when the purchase was made is still the problem of the seller.
I suspect you have the same system there, though you'd not find out about it easily.
And it's probably too late for you now.
Our legal system is an adversarial one, which has the tendency to mean that the more you can pay for it, the more likely you are to have a much better outcome.
Why is that? Why is a fundamental right, that of equal justice, dependent upon your wealth?
People talk about making health care a fundamental right, what about taking back our fundamental rights to fair justice? Let's start making the legal system work FOR the people, instead of people subject TO the legal system.
Sadly, the above is not just funny, but is also insightful, given the number of patents with prior art (some of which, if I'm not mistaken, were essentially dups of prior patents!) that the USPTO has rubber-stamped...
Use 'slashdot stuff' in the subject line in any email you send me if you want to get past the spam filter.
"My dad's a firefighter!"
"Oh yeah? Well my dad kicks the RIAA in the BALLS!"
"Your dad's my hero."
Move all sig!
>>Why shouldn't my justice be dependent on my wealth?
You should care because you are likely 'poor' compared to a multi-billion-dollar company.
Socialization: This is the approach being taken by the medical system, whether you know it or not. I'd prefer to eliminate professional licensing for lawyers AND doctors (and lose patents too). It is often not that what they do is all that difficult, but that they are the only ones allowed to do it.
Even citizens can harass corporations, or even other citizens. That also gets old.
I prefer the "u" in honour as it seems to be missing these days.
Similarly, if you want to sue a large corp, and you spend $2k on a lawyer, they can only get back what you paid for your lawyer, meaning $2k (even if they spend $20k defending their case).
They'll either have to get cheaper lawyers, or stop suing folks.
I was hit by a moving van and while in a coma my family hired an attorney. In the first 3 months he spend $100,000 on collecting evidence. My medical bills came to more than $120,000. Now what's the likelihood my family would have hired a lawyer when if the case was lost we would have had to pay the defendants' attorneys' $100,000 plus my medical bills?
FalconShould there be a Law?
If any of what you claim in your post were true, then we wouldn't see lawsuits in "loser pays" countries (which is essentially, the whole civilized world apart from the US and a few other countries).
However that Reason article does not take into consideration the fact that European nations has single payer or universal health insurance whereas the US does not. Some injured in an accident in France say with a disability will still have health coverage, even if they lose a laqwsuit. I live in the US and survived an injury which is now a permanent disability. And because of the injury I have been denied health insurance even though "I" "won" a lawsuit. Now I'm pretty sure my family would not have filed the lawsuit if they had known that if the case was lost they would have had to pay the defendants' legal bills. As it was, the lawyer representing me spent more than $100,000 out of pocket and my medical bills were more than $120,000. And that does not count more than a year's therapy, when last in therapy I was in it 15 hours a week and it cost $100 an hour.
FalconShould there be a Law?
I can see why people argue that having the losing side shoulder all legal fees is a bad idea (even if I'm not sure I necessarily agree), but if somebody sues YOU and then just drops the case later on before there's actually any decision, why shouldn't they be required to reimburse you for the trouble they caused you for absolutely no reason at all? I'm not talking about millions in damages, but paying your lawyer fees and so on would be the least you'd expect.
I can see, like in this case, the person or entity that brought the lawsuit paying for the defendant's legal bills if the plaintiff drops the case. But I disagree with loser pays if it goes to trial. Poor Joe Smoe may not have a solid case they can show the defendant was responsible, especially when high priced defendant's attorneys may be able to convince the jury Joe deserved it.
FalconShould there be a Law?
I am also for the corporate death penalty for the RIAA and others that abuse the legal system for profit. I think they should forfeit their charter, have their assets sold at public auction, and their board of directors forbiden from ever serving on another board of directors.
Ah, so you know about the revocation of corporate charters?
FalconShould there be a Law?
should have clarified that i wouldn't count any money not directly spent (lawyers working pro bono/on contingency). they spent $0 of their own money on the lawyer, so in my example, they would be liable for exactly $0 in the defendant's legal fees if they were to lose. being as no sensible lawyer would take a frivolous case on contingency (it's simply a bad risk), that should be safe from abuse.
Ok. As it was in my case their insurance decided to settle with the amount of the coverage before going to trial. What I have trouble understanding about it, maybe it's my injury which is a Traumatic Brain Injury or TBI, was that even though they chose to settle the judge in the case still had to approve it.
FalconShould there be a Law?
Loser pays isn't that great. It's best to let the courts try to measure some degree of stupidity in the suit.
In a simpler world, an ideal system would be both sides get 15% of the money being paid to the other side's lawyers. But judge's may award court costs in extreme cases. In this way, both sides lawyers have access to some fraction of the funding of the other side, and in particular probono lawyers get paid something. However, this complicates all sorts of problems with lawyers on retainers, contingency, etc.
The Christian religion has been and still is the principal enemy of moral progress in the world. -- Bertrand Russell