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

Question

[Oxy the moron]

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?

Re:Question

[Raul654]

As I understand it, you can counter-sue, but that involves a great deal of additional cost. A judge can, of his own volition, order one side to pay the other side's fees, but (paraphrasing PJ from Groklaw) they usually only do that when one side was really, really wrong and the judge wants to teach them a lesson.

Re:Question

[Sancho]

I think that it's unlikely that the SCOTUS will even hear the case. If they do, I think that they're not likely to rule in favor of automatic attorney fees.

Like it or not, the RIAA is handling things almost exactly as Congress intended in these matters, and more or less as well as they could handle filing these lawsuits. The only possible frivolity I can see is in filing lawsuits over file sharing in the first place, and any court which rules this way will fundamentally change copyright forever. With this conservative court, I don't expect this to happen.

This might set precident

[Bryansix]

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.

Re:This might set precident

[radarjd]

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.

I don't think a strict "loser pays" system is really what people want. Let's say you sue a medium to large corporation. The case is close, but you lose. The corporation could easily have huge legal expenses, even if yours are relatively minor. Would an individual (or small corporation) ever take the risk of suing a large corporation?

I realize that other countries do have loser pays systems, and it works, but I've never heard conclusively that it's better. Those countries also tend to have more active consumer protection on the part of their governments, which would make suits which are currently brought by individuals (or classes) less necessary.

I tend to think that the system that we have now is good in theory, though not so good in practice. The bar to find a suit frivolous or harassing is so high as to be practically meaningless. I think if that bar were lowered some, we'd have the system that most individuals desire.

Re:This might set precident

[Will_Malverson]

An idea I read once that I liked is a loser-pays, but with the caveat that the loser's liability is limited to what (s)he spent on legal fees. So, if you sue Ford and lose, you'd at worst be out the cost of your own lawsuit. If Ford wants to win by throwing lawyers at the case, they can, just like today, but it'll be on their dime, not yours.

This would also give both sides an extra incentive to keep their legal fees down, always a good thing.

Re:This might set precident

[gnasher719]

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. You should have a look at countries where they _have_ a system of "loser pays", and how they manage to get a proper balance.

As an example, in Germany the judge first decide the "argued value" of the case, which would basically the amount you ask for, minus the amount the company is willing to pay. The judge takes that number, and takes his table of allowable cost which says how much will be payable for your lawyer, their lawyers, and the court, which is a certain percentage of the "argued value". That is also how much your lawyer is allowed to charge (and accordingly, how much work he will do). If you sue Tylenol in your example for $10000, and the cost table says they can spend $1000 on lawyers, then you pay at most $1000. If they use an army of 30 lawyers, that's their problem. They won't be able to stretch out the case forever, because the judge is limited by the $1000 he can charge for court cost, and if they tried to do an SCO on him, they would be told to **** off.
So your risk would be $1000 for your lawyers, $1000 for their lawyers, and $1000 for the court (most likely the exact amount for a $10000 case is not $1000 each, but some other number).

common law vs. civil law

[darkob]

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.

Legal fees should not be automatic!

[mlwmohawk]

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.

Re:Excuse me?

[smellsofbikes]

While I'd like to think that many people are as stoic as you, I certainly am not: I'm within 10 years of retiring, quite early because I've spent the last 15 years putting everything I can in savings and investments rather than buying new cars. I'd sure hate to lose all that and have to work until 70. Sure, risking that is part of making the world a better place, but it's not rational to expect that most, or even many, people will bet their personal future to make the world a little tiny bit better. It's a matter of proportion: I don't drive 100 miles an hour because that has a very poor risk/reward ratio -- I endanger many people and only get where I was going a short while earlier. But, likewise, it would also be stupid for me, personally, to throw away my future to be a single data point in the fight against big corporations. I don't like saying this, but faced between surrendering, even if I was in the right, and losing everything I've worked for this last 15 years, I wouldn't even hesitate.

why granting legal fees is tricky.

[jrboatright]

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.