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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."
They don't want to have to counter sue, they want attorney fees automatically granted when the RIAA drops the lawsuit since the dependent technically won the case.
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.
Yes, this is why they are asking for SCOTUS to get involved. Different courts are citing Fogerty v. Fantasy Inc differently, and if I'm reading the article correctly, the courts are determining that RIAAs lawsuits are not considered frivolous, so no attorney fees should be given to the defendant.
In a typical lawsuit in the US, each side generally pays its own attorneys fees, regardless of who wins. A court may award court costs, but those are usually quite small relative to attorneys fees. In frivolous cases, attorneys fees are also sometimes awarded.
In a copyright case, however, the rules are a bit different -- a judge in a copyright case can award attorneys fees to the "prevailing party." So, that brings up all sorts of questions around what "prevailing party" means, which is probably what this case is about. (I'm not familiar with the case.)
In any case, the fact that they applied for certiorari is really a non-event: it happens to thousands of such cases every year, and the Supreme Court only grants review of a small portion of them. The fact that the Appeals Court denied the appeal doesn't bode well.
Since you specifically asked for /. lawyers, I'll point out that IANAL and even if I was one, I do not represent /. (or you).
The default rule for civil suits in the United States is that both parties pay for their own representation. The copyright statute provides an exception to this rule in 17 U.S.C. 505:
The right to request a reasonable attorney's fee is subject to registration of the copyright (See 35 U.S.C. 412).
Courts have read into Section 505 a right for defendants to request a reasonable attorney's fee too. But it's not in the copyright code itself.
Attorneys' fees are not the only way to deter or mitigate the costs of frivolous lawsuits. Lawyers can be held accountable for bringing suits where the lawyers do not believe a reasonable basis for filing suit exists. It is also possible to minimize the cost of an action by providing all of the facts upfront and requesting summary judgment (suits where parties fight to withhold information can become very expensive).
The Open Source Software Community may not want the law to favor automatically granting a reasonable attorney's fee to copyright defendants. Imagine trying to enforce the GPL if the courts are highly likely to impose $50,000+ in reasonable attorney's fees on the OSS coders trying to enforce their rights if the suit fails. The OSS Community really should really support leaving much of the decision to the discretion of the district court judges.
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.
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.
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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.
If I recall correctly, there are some seven or eight thousand requests for Certiorari from the Supreme Court every year and they grant about 100 or so.
"It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance
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
Let's not forget that this would widen the gap between the representation that the rich and the poor get even more. If I sue Tylenol because they filled my children's tylenol bottle with crack and wood alcohol, they can just throw 30 lawyers on the case and laugh their asses off. If they lose, their only additional cost would be my lawyer (likely a small percentage of the cost of settlement or their own lawyers); everything else would be the same as before attorney fees were regularly awarded. However, if I lost due to some technicality, I would have to pay for 31 lawyers in what was a legitimate case to begin with.
Let me start with: I'm a lawyer (and specifically, a civil litigator) in an adverse costs awarding jurisdiction (Ontario, Canada) and New York State, which has very limited use of adverse cost awards. Let me second with I'm on a horrific battery of anti-cold drugs, so this might not be very coherent or thorough.
The argument that you pay the balance of the fees for a defendant's representation when you lose is a straw man argument. The bulk of legal representation is sound advice, and actual courtroom time is unlikely in most cases, and a judgment is exceptionally rare. In my limited but professional experience, I have studied cost awards in some detail, as issues about them come up regularly in Ontario. Foremost, I've noticed that a risk of adverse cost awards does not decrease the likelihood of individuals bringing a lawsuit for a couple of reasons. They are:
1. Adverse cost awards can reduce the cost of litigation by encouraging settlement prior to trial. If going to a courtroom means potentially paying an adverse cost award, there is a greater incentive to resolve the dispute in advance of that. This promotes ADR (alternative dispute resolution), especially mediation. The vast, vast, vast majority of litigation is settled prior to trial.
2. Plaintiffs are often judgment proof (viz. unable to pay an adverse cost award). In this respect, ironically, the extremely poor with lawyers retained on a contingency agreement are better defended against adverse cost awards than the middle class.
3. Courts often prescribe costs on the standard of reasonableness. In Canada, a legal technicality typically gives rise to "a novel point of law", where the courts have for practical and philosophical reasons deemed it unfair to award adverse costs. Hence, if you lose on a legal technicality, you only pay your own legal fees. Some might say that costs are a way for the court to say "this person had a legitimate claim and you should have settled" or "your claim is frivolous and you've wasted these other people's time", but where you bring a new point to clarification, the waiving cost awards is a relief rewarded as all future litigants have the benefit of this clarification.
4. Litigation is generally black and white over liability, but gray on damages (a gross overgeneralization, but bear with me). If liability is clear, and your claim is legitimate as a plaintiff, then adverse cost awards generally only penalize the plaintiff for errant behaviour (such as unreasonable pie-in-the-sky/lottery-ticket expectations), or the defendant at partial indemnity (say 40% of the plaintiff's legal fees) for failing to settle before trial, or substantial indemnity (say 80% of the plaintiff's legal fees) where the defendant has demonstrated unwieldy behaviour (such as starving impoverished plaintiffs).
5. Costs are often discretionary. A judge or master can use costs to deter deviance, penalize bad behaviour, and compensate for losses arising from the acts of other parties. In effect, it becomes a mechanism for the court to impose fairness. However, being discretionary, without complex regulations dealing with a plethora of cases and a diligent educating of the judiciary, it has the potential to be inconsistent as between judges.
6. The legal fees charged in Canada are only a percentage (either, generally, 40% or 80%, depending on the reason the costs are being awar
The problem here is typically a counter-sue for legal fees happens when the defendant wins the case. However what happens is the RIAA threatens 10,000 people. Some ignore it, some settle it and some get a lawyer... As soon as there is any doubt that the RIAA will win a case they just drop it and say "We won't be proceeding with any legal action"
You have already paid for your lawyer, but because you didn't "Win" the case, no precedent is set for the case and no legal fee's are awarded.
everyone has the right to free legal defense from the public defender if they cannot afford it on their own
This is only true in criminal cases, not in civil cases.
FalconShould there be a Law?
Automatic court costs general favour the small guy, unless the company goes the endless civil suit route of appeals to higher and higher courts, with adjournments all to spend more than an individual can spend. This however fails when companies attempt to take on thousands of individuals because lose one case, precedent is set and they will likely lose every other case and basically big bucks go down the drain.
On top of that those laws are often in conjunction with barratry laws, where the winner of the case can effectively sue for damages and legal harassment (lost income while in court, stress, etc.), in the RIAAs case, lose a few too many cases as they have already done and it would also become automatic (really big bucks down the drain). So there is real reason why RIAA et al have been largely inactive against individuals in a lots of other countries.
Chaos - everything, everywhere, everywhen