Several Slashdot members have suggested that, rather than just refer to the RIAA, I should give the names of the record labels that are responsible for these litigations, so that people will know whom to hold accountable. So I've compiled a list of the bad guys:
Arista
Atlantic
BMG
Capitol
Elektra
Fonovisa
Interscope
Lava
Loud
Maverick
Motown
Priority
SONY
UMG
Virgin
Warner
Well, its probably because lawyers charge more in New York City then they do in Oklahoma City. After all, it is a _slightly_ more expensive place to do business. Gabriel's a Denver, Colorado, lawyer. The rates in Denver, Colorado, probably aren't far off from the rates in Oklahoma City, Oklahoma. The difference is that he is representing multibillion dollar multinational cartels who have an endless stream of money to waste.
Mr. Gabriel contended that the $225/hour asked by the Defendant's lawyer in Capital v Foster was far too high. Especially since it was such a simple and straightforward case. Yet he bills nearly twice that amount to other Defendants.
Shouldn't it be "reasonable" that attorney's fees on both sides of the case be billable at the same cost/hour? I don't thing the fees have to be equal. But I don't think it's fair for someone being paid $375 per hour for trying to push his "marginal and untested" theories about copyright law down the throats of innocent people should be able to challenge the "reasonableness" of a defendant's lawyer's fees at $225 per hour. And I don't think you can call it "simple" to be dealing with novel theories of law.
This blurb needs a paragraph break. The stuff about Patti Santangelo at the end is entirely background and unrelated to the latest developments. Slashdot doesn't use paragraph breaks.
Actually there was a huge amount of work which Ms. Foster's attorney had to do after the initial, February 6th, decision, due to innumerable motions and other dilatory tactics by the RIAA. Just look at some of the litigation documents (and this list was very selective) in my folder for Capitol v. Foster. I was really shocked by the Judge's knocking Ms. Barringer-Thomson's bill down so far; she did not deserve that. My best guess is that he was trying to protect the record against any kind of appeal from the RIAA.
Despite my disappointment at the amount awarded, an attorneys fee award against the RIAA for more than $68,000 is a very important precedent, one which -is being taken very seriously by the RIAA, albeit with a slight sigh of relief, and -is being noticed by lawyers and litigants across the country, as a sign of encouragement to stand and fight.
It's also likely they realized that even if they fought and won and could expect to collect, their legal costs would be higher than the amount of the judgment. Large legal teams are expensive. 1. You're giving them credit for rational thought processes, which have not been in evidence.
2. They knew they had no case here.
3. They have never to my knowledge fought a fully contested case through to verdict.
So I took the settlement, nothing went down on my record.
I'm guessing this $300 RIAA case is the same deal. The judge probably got sick of the team of lawyers that represent the RIAA tying up his courtroom with petty bullshit, and i'm guessing the person taking the settlement got the same speech I did. This was not a settlement.
It was a Rule 68 Formal Offer of Judgment, and acceptance.
If a plaintiff refuses a defendant's offer of judgement and ends up losing at trial, does the plantiff also have to cover the defendant's legal bills? Or is the plaintiff only on the hook for court costs? Good question.
In a copyright case, the answer is probably yes, since the Copyright Act includes attorneys fees to the prevailing party as part of the costs.
I think it is because they are idiots. Ok, so idiots isn't quite the right term, but basically because they are out of touch with reality. They seem to really, honestly, believe that they can stand in the way of progress. They believe that they can keep the status quo with their business model so long as they fight. Now that right there shows a surprising amount of ignorance of history and business. Thus I also think they ignorantly believe that these lawsuits are working and will win in the end. They think that all they've got to do is sue enough, and everyone will get really scared and stop using P2P networks. That's they they keep doing it, they think that they just have to keep the pressure on and it will work, P2P will cease to exist because people will be too scared to use it.
Basically they are just living in a dream world. They are facing a world that has changed and they don't want to change with it. So they delude themselves in to thinking they can fight it.
All I know is if I was an investment company who had holdings in these companies, I'd be asking the directors what the hell they thought they were doing. I think "idiots" was a pretty good word for it. I think their shareholders must be starting to ask some questions.
I doubt such costs matter to them, and that the RIAA isn't so much looking to recoup "costs" on supposed lost music sales, but to create such a culture of fear in order to seriously slow down music sharing. So they spend $100 million on law suits to stop an alleged $1 billion of music copying... Correct.
But I've been toying with other possible explanations for why they're spending so disproportionately to their achievement of results:
1. They're trying to regain monopoly power, this time in the digital music space.
2. Their lawyers are playing them for suckers.
Of course, I haven't seen anywhere it's been proven that people who download a song really would have bought it instead. Anyone? The reason you haven't seen it, is that it isn't there.
To the best of my knowledge, the RIAA have not yet sued a single person for *downloading* music. What the suits revolve around is *uploading* (or "making available"). Correct. The complaint mentions "downloading", among other things, but the RIAA knows of no downloading.
If there's only a single song at issue, then your analysis would be valid. But for most of the defendants in the RIAA suits, the allegation is that they "made available" (had in a shared folder) hundreds or thousands of songs.
Since that's $750 per song, in these cases the bottom line is a hell of a lot more than $300. Yes they are theoretically suing for large numbers, but they are actually suing for $750 per song for their 'exhibit A' list (the songs their investigator allegedly downloaded), which is usually in the $5k to $8k range. That is what they go for in the default judgment cases. And they'll usually take around $4500 in a settlement. However, if a defendant fights back and gives them a hard time, they may try to get more.
The fact that the RIAA accepted this offer is suspicious. It make me believe that they had no real case against the defendant, and knew it (gee, big surprise there). It's a shame that the defendant was unwilling/unable to actually fight it out... Correct.
a formal Rule 68 offer of judgment is something different than that. It's kind of a dare.
It seems like such a powerful tool that it would be almost automatic to offer a small amount. What happens in cases where it isn't done? Are costs typically shared evenly? Normally the court costs are awarded to the prevailing party.
You would know better than anyone on Slashdot: How many lawyers does the RIAA sic on people in cases like this? Is $500/hr/atty a reasonable estimate of what they're being billed? Running some reasonable-but-very-much-guessed numbers in my head gets me to a cost of around $3,000-4,000 to the RIAA to respond to the Rule 68 offer alone. Then again, they may be acting in a more streamlined fashion than any other corporation with a major litigation strategy, or even using in-house counsel for these suits, for all I know. I know that they're spending a fortune, and I know that they're using law firms all across the country. In most cases they're using two law firms. They're also using in house counsel to direct the law firms. I don't know the hourly rates. I'll probably have a better idea after the Court issues its attorneys fees decision in Capitol v. Foster.
Surely I must be missing something here. What is to stop every North Carolina civil defendant from offering a $1 judgment to the plaintiff? What does the defendant have to lose?
It would seem that the worst case for the defendant is that the plaintiff doesn't accept and then the defendant is no better of worse off than he was before. But for the plaintiff, the stakes are huge.
What did I miss, here? Actually, I would not be surprised to see a lot of defendants doing just that.
But there are consequences if the RIAA accepts the offer. There is a judgment against you, which shows up in a credit report, and in view of the judgment you can't claim to be the prevailing party and assert entitlement to attorneys fees.
But for many the Rule 68 offer of judgment will be a useful tool.
I notice that the settlement offer explicitly excludes any claims for sanctions that the defendant has already requested. Can you give more information on possible sanctions against the RIAA and/or their lawyers? Those of us who believe the RIAA's litigation tactics are frivolous would like to move for sanctions under Rule 11 (c), but the rule is quite limited, providing the offending party with a "safe harbor", and many judges are reluctant to invoke it altogether, as the consequences of a Rule 11 sanction against an attorney are very severe. So it is invoked rarely. I am not aware of any successful invocation of Rule 11 in the RIAA cases by a defendant. I am aware of one instance in which the judge disagreed with the defendant's lawyer on the merits of the underlying motion, found the Rule 11 motion to itself be frivolous, and has held that the defendant's lawyer should be sanctioned, based on several things he had done that irked the judge.
In simple terms her offer was "Okay I'm willing to plead guilty and pay you $300 inclusive of everything"
Correct, except for the "plead guilty" part. That's only in criminal cases. Well, a formal Rule 68 offer of judgment is something different than that. It's kind of a dare. It's saying to the RIAA:
Here's a judgment for $300. I'm throwing $300 on the floor. Either pick it up, or go forward. I dare you to try to recover more than that. If you don't recover more than that, you're going to be liable for all of the court costs from this day forward. If you've got the guts, bring it on. If you don't, pick up the $300 and get out of my life.
There are other definitions of the term 'guilty' than merely the legal definitions. You'll notice the sentence doesn't even make sense using 'liable.' I disagree. I think it would have made perfect sense to use the civil litigation language, instead of criminal terms:
it's entirely possible she was liable, knew she was liable, and thus saw this as the cheapest way out
I love the way people keep throwing around this word "guilty". Like this is a criminal case. The longer people apply criminal law terminology like "guilty" and "innocent" and "theft" the easier it will be for the copyright owners to get new criminal laws passed.
Stop playing their game. I agree wholeheartedly, QuantumG. I wince every time someone says "guilty" or "innocent".
These are civil cases. The terminology should be "liable" and "not liable".
Well, since you asked... references like so:
Cable Communications Policy Act of 1984 ("CCPA"), 47 U.S.C. 551(c)(2)(B),
In re: Charter Commc'ns, Inc., Subpoena Enforcement Matter, 393 F.3d 771, 777 (8th Cir. 2005).
Recording Indus. Ass'n of Am. v. Univ. of N. C. at Chapel Hill, 367 F. Supp. 2d 945, 948-49 (M.D. N.C. 2005).
You have to admit that, while possibly informative to an almost painful degree, they are exceedingly ugly and quite distracting/confusing if you don't know all the specific rules for referencing legal documents. Which I don't. I understand. Thanks for explaining what you meant.
That's the judge referencing legal precedents. It's at the core of what lawyers and judges do, so it's unavoidable.
Sorry it's distracting and confusing. All I can suggest is to skip over them.
Slashdot Mirror
I have not seen a single instance in which the RIAA knew of any downloading.
Atlantic
BMG
Capitol
Elektra
Fonovisa
Interscope
Lava
Loud
Maverick
Motown
Priority
SONY
UMG
Virgin
Warner
Actually there was a huge amount of work which Ms. Foster's attorney had to do after the initial, February 6th, decision, due to innumerable motions and other dilatory tactics by the RIAA. Just look at some of the litigation documents (and this list was very selective) in my folder for Capitol v. Foster. I was really shocked by the Judge's knocking Ms. Barringer-Thomson's bill down so far; she did not deserve that. My best guess is that he was trying to protect the record against any kind of appeal from the RIAA.
Despite my disappointment at the amount awarded, an attorneys fee award against the RIAA for more than $68,000 is a very important precedent, one which
-is being taken very seriously by the RIAA, albeit with a slight sigh of relief, and
-is being noticed by lawyers and litigants across the country, as a sign of encouragement to stand and fight.
2. They knew they had no case here.
3. They have never to my knowledge fought a fully contested case through to verdict.
It was a Rule 68 Formal Offer of Judgment, and acceptance.
In a copyright case, the answer is probably yes, since the Copyright Act includes attorneys fees to the prevailing party as part of the costs.
But I've been toying with other possible explanations for why they're spending so disproportionately to their achievement of results:
1. They're trying to regain monopoly power, this time in the digital music space.
2. Their lawyers are playing them for suckers. Of course, I haven't seen anywhere it's been proven that people who download a song really would have bought it instead. Anyone? The reason you haven't seen it, is that it isn't there.
But there are consequences if the RIAA accepts the offer. There is a judgment against you, which shows up in a credit report, and in view of the judgment you can't claim to be the prevailing party and assert entitlement to attorneys fees.
But for many the Rule 68 offer of judgment will be a useful tool.
Dun, you and I just wrote almost the exact same post, at the exact same time. I hope we don't get modded "redundant".
I dare you to try to recover more than that.
If you don't recover more than that, you're going to be liable for all of the court costs from this day forward.
If you've got the guts, bring it on.
If you don't, pick up the $300 and get out of my life.
These are civil cases. The terminology should be "liable" and "not liable".
That's the judge referencing legal precedents. It's at the core of what lawyers and judges do, so it's unavoidable.
Sorry it's distracting and confusing. All I can suggest is to skip over them.
Thanks again for explaining.
It seems to me that you are invariably agreeing with the RIAA. I've noticed the pattern from your previous comments on previous posts.
Except for a law firm. Most law firms are lousy business models too.