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."

Comments

RIAA should be liable for the messes they create

[themushroom]

They sent out the invitations to the party, they get to foot the bill.

Standard?

[Anonymous Coward]

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.

Re:Standard?

[moderatorrater]

Why isn't this the standard, anyway? Because it significantly raises the potential cost of suing someone, and lawsuits are the last resort against a lot of injustice. If I'll optentially have to pay for the 30 lawyers that an insurance company can throw against me, then I won't file suit in the first place. The ideal system is to say that these fees may be awarded if the court sees that they should be, and that's the situation we're in right now.

the problem with these suits in the first place is that it's a large corporation with less to lose than individuals they're suing; the proposal to award attorney fees no matter what would only widen that gap. After all, when someone loses a case to the RIAA we don't want the defendant paying the RIAA's costs, do we?

Wonder if I could get a business patent on this???

[Gat0r30y]

"There is a clear and present need for this Court's intervention and guidance on this important issue of copyright law," Indeed, unless they give this guy his lawyer's fees, it sets a really dangerous precedent. Namely, any old lawyer/copyright holder can just start suing assloads of folks, hoping most will just settle to avoid the cost of litigation and drop all the suits that don't get settled. There isn't any incentive for the defendant to fight back against frivolous copyright infringement lawsuits.

The Loser Should Always pay

[protolith]

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.

Re:The Loser Should Always pay

[tradotto]

So your saying that if you ever have to sue MS or Google or Apple or anything, for a valid patent violation and their heavy hitting lawyers win with some big money law magic now you have to pay for it? GLWT

Re:The Loser Should Always pay

[Bloodoflethe]

It makes sense only for case droppers imo.

Re:The Loser Should Always pay

[zappepcs]

While that sounds good, in this case the RIAA didn't even know if they were suing the right person. The case was dropped when it was shown that it was not this guy doing downloading, so that essentially he is having to pay court costs to prove he wasn't guilty. A good counter suit to the tune of 3 times his costs or more should help set the right precedent. If the **AA continues to sue people without being sure they are even suing the right people, their evidence is flawed horrendously. Sure, there is some purchase here for using the probable cause phrase, but in the end they were wrong and significantly distressed and inconvenienced this guy.

Without discovery (in this case a fishing trip) the RIAA cannot even be sure if there is anyone to sue. They don't have direct evidence of copyright infringement. They don't have anything more than circumstantial evidence in most cases.

IANAL but...

If Mr X has a gun that is the same kind as used to kill Mr Y, and Mr X was in the area of the murder at the time of the murder and had previously fought with Mr Y. The bullet was too damaged to do ballistics on it. That is circumstantial evidence. Pretty good but circumstantial

If Mr X has a gun that is the same kind as used to kill Mr Y, and Mr X was in the area of the murder at the time of the murder and had previously fought with Mr Y. The bullet ballistically matched Mr X's gun. Witnesses saw them together within minutes of the estimated time of death. That is strong evidence. This is what the RIAA does not have.

Taking Mr X to trial on circumstantial evidence has a matter of risk to it. They might not be able to convince a jury that Mr X killed Mr Y. He might have a good alibi. OR They may convict him only to find out 30 years later that Mrs Y killed him with the same kind of gun.

Basically, the RIAA uses bad evidence, circumstantial evidence, and other techniques to get convictions and runs away when they think they will lose. It's a shotgun approach. Sue everyone we can, let the complainers go free.

Right now the RIAA is telling artists that they represent that there is little to nothing left of all the money they got from Napster, so the RIAA can't really give them much of the rewards for that effort. It all went to lawyers.

Add all that up and the case against the RIAA looks bad for them. They are suing the wrong people, causing harm, ruining credibility, and their efforts are not even benefiting those they represent in court. I would not call that frivolous, I'd call it malicious.

How to bring that all together in court is a problem I'm not sure how to handle though. Clearly some retribution is called for against a bully that uses the legal system to bludgeon ordinary citizens with few resources into paying them 'protection' money.

Re:The Loser Should Always pay

[protolith]

That's not exactly how it would play out.

Most corporate lawyers try to settle on anything that holds water that is brought against the company they are representing. They typically want to prevent the precedent of rulings against them for anything that the company did wrong or illegal (or have the details of a case made public in a trial). In these situations they are already paying the claimants legal fees, so that much would be the same.

In the situations where the case is total crap and everyone involved should already know it, the corporate lawyers can say see you in court, if the claimants don't drop it right there, they are either incredibly stupid or sure enough they might have a chance that their side will win.

If this hypothetical claim against DELL regarding a defective product is a valid claim, then it would be worth going to trial as usual. If it is a borderline claim, then the risk would obviously be more significant. In the current system what's really in place to prevent a judge from siding with DELL AND Compelling the loser to pay all of DELL's legal fees for wasting their time?

The difference is that all parties would know the risk up front.

Not just his legal fees, but....

[WindBourne]

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?

"Picking up the tab" isn't enough

[h890231398021]

[...] 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.

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.

Re:"Picking up the tab" isn't enough

[sm62704]

I wonder, if the RIAA sued you and lost, could you counter-sue for slander? Somehow I doubt it, but it sure would be sweet!

Actually considering the names they call us (their former and present customers) we should probably instigate a class action slander suit. Yo ho ho and all that.

Excuse me?

[hassanchop]

There isn't any incentive for the defendant to fight back against frivolous copyright infringement 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.

Re:Excuse me?

[parcel]

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. And hiring a lawyer to fight a lawsuit which would be cheaper to settle is fiscally irresponsible. Not to mention, if you've got a family to support, I'd argue personally and socially irresponsible as well. Which is exactly what this is about - if the RIAA is suing you for no good reason, there should not be the fear of personal bankruptcy - because they should be forced to pay for the defense costs they have unjustly forced on you.

This is, of course, even putting aside the potential of a false conviction. But that never happens, right?

Re:Excuse me?

[NewYorkCountryLawyer]

There is no person on slashdot I respect more than you, and I'm glad you're doing what you're doing. I'm fighting a bunch of other battles, and this isn't one that matters enough to me to risk the other things I'm doing. A person has to choose which fights are worth it. I'm reminded of a line from J. D. Salinger: "any fool can die for a cause, but it takes a lot more work to live for one." You're no fool, and that's why you're winning your fight -- one to which I've contributed, as it happens. But I know it's not a fight in which I could participate: given my circumstances, the potential loss outweighs any potential gain. I understand, and I meant it when I said that your point was made both "eloquently and fairly". And Lord knows one has to pick one's fights.

But what I am saying is that for these few instances in my life where I reacted out of fear rather than out of principle, I have carried a burden on my shoulders that is not acceptable. I have regrets about those moments, and no regrets about the others where I stood up for what is right. Yes you can't jump into every fight. But when circumstances place you in a position that you must either fight back or become an appeaser, I personally would rather take the risk of fighting back than the risk of appeasement.

In the RIAA saga, people like Patti Santangelo, Tanya Andersen, Debbie Foster, and Marie Lindor are true American heroes. They didn't look for a fight; the fight found them. And they refused to back down from a bully.

Re:Question

[Dachannien]

What I don't get is that the federal copyright statutes make explicit provisions for granting attorney's fees and court costs to the prevailing party, but it's still apparently like pulling teeth to get the courts to go along with it. If Congress didn't intend for people to actually be able to claim compensation when they win after suing/being sued, why did they put it in the statute?

Problem with that

[WindBourne]

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.

Re:This might set precident

[gstoddart]

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.

Well, this isn't just loser pay. Hopefully it wouldn't be that broad.

But, when the RIAA has almost no evidence, sues someone, later realizes they don't have enough actual evidence, and drops the lawsuit .... one would hope that they can't just go around saying "you stole music" without any consequences whatsoever when it is realized they have neither sufficient (nor, possibly even legally admisable) evidence to support that claim.

A full on "loser pays" system is a bad. Protecting the ability to accuse anyone and try to extort a settlement out of them so they don't go bankrupt defending themselves is also bad.

So far, the RIAA has been able to file papers, drop the claim, and walk away without any pushback. That's really awful.

Cheers

Re:This might set precident

[Mistlefoot]

Be careful what you ask for. The current system offers checks and balances.

This prevents me from suing, say Ford, when the Explorer tips over due to wheel or balance issues. Can you imagine how scary it would be (even if you are right) knowing that should you lose, your home is lost - you pretty much take the risk of bankruptcy to pay for the defendants lawyers.

Would you sue when your implants leaked? And what if I am rear-ended in a car accident and don't feel the settlement offered is enough. I sue for what my real losses are and am not awarded more. Did I just lose? The court agrees I get "some" money but not as much as I want. Who has lost? You pretty much prevent lawsuits from happening. Frivolous lawsuits already have potential penalties. You shouldn't be punished for a legitimate lawsuit.

The lawsuit in question in the article is clearly not legitimate. They sued the wrong person and should pay but to make fundamental changes to the legal system is not "a great idea".

Re:Legal fees should not be automatic!

[ICLKennyG]

As a law student who has had this debate at length in my Civil Procedure course I'm going to have to step up and chime in for the non-automatic payment of the losers fees. First there are routes of counter suits and counter claims if it's important and needed. But the main reason is that it will make the idea of profiteering law suits more dangerous just differently structured. It's just a numbers game. If you get a threatening letter stating a claim which could cost $2m to litigate and you have a 10% chance of losing you are theoretically on the hook for $200k - if they offer to settle for $100k more than most would settle. The rare few who didn't settle would be at the risk of the other side spending anything and everything to help them win. EVERYBODY would hire Johny Cochran et al to represent them and we would have far more trial circuses and fewer settlements an end the courts and legislature have already determined they don't like.

Basically the system sucks as it is now, but it could be worse and you need only imagine the situation where David gets sued by Goliath and has to pay Goliath's fees for losing.

Re:Wonder if I could get a business patent on this

[Gat0r30y]

No, there is prior art.
This is patent law I'm talking about, prior art doesn't matter!

Re:This might set precident

[moderatorrater]

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.

Doesn't Smell Right

[mpapet]

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.

Re:Question

[esocid]

since the dependent technically won the case.

I see what you did there. Clever.

Re:Different version of loser pays

[darkob]

Luckily, in civil law (continental legal systems) clock starts ticking once defendent is being served by the court a lawsuit of the plaintiff, so he/she can enter his legal arguments. In essence, suing people should never be "easy" and whoever brings lawsuit against anyone, there should be a clear knowledge that mandating defendant to defend is in itself causing (him or her) harm. "Checks and balances" comes in the form of clearly stating legal costs and accompanying fees with each and ever filing, so that once case is closed, with the court decision or by retracting of the lawsiut, there's always a clear track record of certain fees. These usually can't be over certain limit, so even if an ordinary guy sues big company, that big company can seldom dry the plaintiff broke (if he loses).. In all, civil law works pretty well and is quite logical. Given the fact that it has roots in Roman law it's probably even understandable.

Re:Question

[Atanamis]

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.

If the Open Source Software Community files frivolous lawsuits with insufficient evidence, they OUGHT to pay "reasonable attorney's fees". The fact that the bad rules can be abused by both sides is no justification for leaving the rules as they are. Just stop filing lawsuits that you can't actually win. Lawsuits should be filed when you have strong evidence that you have been wronged, not when you want to go on a fishing expedition to find out if someone might be cheating you.