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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."
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?"
Prediction: The real iPhone killer is going to be sex robots from Japan. Think about it.
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.
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.
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".
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.
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.
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