Yes there is a right to jury trial if either party demands it in their pleading. Which is why it's important for people representing themselves in these cases to be sure to put a jury demand in their answer.
I did not use the term "terrorism"; I used the term "reign of terror", which I think has a different meaning.
The people I have spoken to are heartsick at being subjected to federal court lawsuits. They have no good choices. They either have to (a) pay $3750 or $4250 as extortion money for something they didn't do, or to defend a vague, shadowy, ambiguous case that is not based on any evidence; or (b) they have to spend tens of thousands of dollars to defend themselves; or (c) they have to have a default judgment against them. Most of them don't have the money for either (a) or (b), but those who do have the money don't find either to be a very comforting alternative.
Once they start defending themselves, and it becomes clear they didn't do anything, the RIAA doesn't drop the case... then the RIAA starts looking for depositions of their children, their neighbors' children, their relatives, anyone the RIAA can thinks they can rope into the case, and then tries to sue those people, too, children included. And it will spend what appears to be an endless stream of dollars in order to do it. In fact their strategy seems to be to do everything in the most expensive possible way, to make it impossible for defendants to defend themselves.
If it turns out a 13-year old kid did it, then the RIAA goes after the 13-year old kid.
The people I talk to are full of anxiety, and are in a dilemma they can't solve. One lady called me asking if this means her daughter will go to jail. Another wanted to know how to stop the RIAA from suing her disabled daughter.
Lately, the RIAA has taken to sending out press releases, for each crummy $6000 to $9000 case, to the local newspapers where the defendants live, just to publicly embarrass them.
They are clearly in a state of "terror".
Believe me, "radtea", even though you are more knowledgeable and sophisticated than most of the people who are being sued, you too would be full of anxiety were you in their position; you would find it to be a nightmare, unless of course you opted to pay the settlement money even though you hadn't committed any copyright infringement.
If the judges go along with this faked campaign, and don't put an end to it, it is a "reign" of terror.
I am hopeful they will shut it down, and it will have been a short lived "reign".
But the harm already done to the people who have been sued is incalculable. I hope you never have to go through what they are going through.
Just want to clarify something.
The post suggests I was speaking for the EFF.
I love the EFF, I'm a member, I got into defending RIAA defendants through the EFF, I applaud their efforts in everything I've seen them do... but I'm not an employee or leader of the organization and I am certainly not an authorized spokesman for it.
I'm just an ordinary "country" lawyer (in Manhattan) trying to fight for my clients.
An important precedent has been established.
The RIAA can't tie someone up in court for a year and a half, with a frivolous case, and then avoid exposure for attorneys fees by withdrawing the case at the eleventh hour.
This puts a wrinkle in the RIAA's play book, and it will encourage more people to fight back, and more lawyers to take on their cases.
They don't make money on the lawsuits, even on the default judgments.
They make money on the settlements, though, which is why I am always glad to see someone fighting back.
Dear "Anonymous Coward"
The RIAA complaints (19,000 or so) allege that defendant "downloaded, distributed, and/or made available for distribution". They don't actually particularize any incidents of "downloading" or "distributing", just of "making available" (which, the last time I looked, wasn't a copyright infringement at all).
Dear "Anonymous Coward"
I think that when you lump all lawyers together like that -- treating those who would help poor and working people without any real hope of getting properly paid for it the same as those who would do the unconscionable and unspeakable things the RIAA lawyers do daily, for which they are handsomely paid -- you do a disservice to the good guys, and a favor to the bad guys.
Lawyers are just like any other people; there are good guys and bad guys.
Support the good guys; criticize the bad guys. When someone does the right thing, recognize it, and applaud it.
In this case, Marilyn Barringer-Thompson has fought a valiant fight against a giant cartel for which I can assure you she has received little or no money. In doing so she is carrying out the highest tradition in our profession, and in our country's history.
We should all be sending her a thank you note.
I agree with you that no attorneys fee award will make Ms. Foster whole for the suffering she has been put through.
But an attorneys fee award will (a) help her out a lot, (b) help her lawyer -- who put herself through hardship in order to take on a case like this -- considerably, and (c) indirectly help a lot of other people who otherwise couldn't afford legal representation, because an attorneys fee award will send out a message to other lawyers that if they take on the cause of a defenseless person who hasn't done anything wrong, the courts will be on the side of the good guys.
Incorrect.
Under the Copyright Act it is NOT necessary that the prevailing party show that the other side's claim was frivolous in order to be awarded attorneys fees.
Not unless he's got a wealthy client who is willing to pay a lot of legal fees. Which is never the case in these cases. All the lawyers I know are doing it on a pro bono basis or on a drastically reduced fee basis. I myself have probably given away around $300,000 worth of legal services by doing the cases on a drastically reduced fee basis. But there is a limit to how much each of us can stand.
If a single practitioner takes on one of these cases pro bono, he could wind up doing $100,000 worth of legal work on it for free. He may not be able to afford to do more than one case at a time. But if the client gets a $75,000 attorneys fee award, and the lawyer gets paid $75,000 that way, he can afford to take on 4 cases at a time.
1. The case against the mother is closed.
2. The mother's case against the RIAA for attorneys fees is still open.
3. A precedent is established that by withdrawing a case the RIAA does not immunize itself from liability for the harm it caused by prosecuting its meritless lawsuit in the first place.
Sounds pretty good to me.
That is not the portion of the decision dealing with the Copyright Act. The standard for awarding attorneys fees in copyright cases is not as stringent as the above quoted standard.
Good catch, this is exactly like Priority Records v. Candy Chan (the case against the mother). When Ms. Chan's lawyer made a motion for summary judgment and attorneys fees, the RIAA finally withdrew its case "with prejudice", hoping to avoid an attorneys fee award. In that case it succeeded in avoiding liability for attorneys fees based on the judge's opinion about the specific procedural things that occurred in that case.
In this case, we will have to see what the judge rules when the attorneys fee motion is made. But my guess is that there will indeed be an award of attorneys fees here, and it will be more than a slap on the wrist.
Slashdot Mirror
Yes there is a right to jury trial if either party demands it in their pleading. Which is why it's important for people representing themselves in these cases to be sure to put a jury demand in their answer.
The case in this post deals with the defense of unconstitutionality of the statutory damages: http://recordingindustryvspeople.blogspot.com/2006 /07/lindor-motion-to-amend-answer-to.html
I did not use the term "terrorism"; I used the term "reign of terror", which I think has a different meaning.
The people I have spoken to are heartsick at being subjected to federal court lawsuits. They have no good choices. They either have to (a) pay $3750 or $4250 as extortion money for something they didn't do, or to defend a vague, shadowy, ambiguous case that is not based on any evidence; or (b) they have to spend tens of thousands of dollars to defend themselves; or (c) they have to have a default judgment against them. Most of them don't have the money for either (a) or (b), but those who do have the money don't find either to be a very comforting alternative.
Once they start defending themselves, and it becomes clear they didn't do anything, the RIAA doesn't drop the case... then the RIAA starts looking for depositions of their children, their neighbors' children, their relatives, anyone the RIAA can thinks they can rope into the case, and then tries to sue those people, too, children included. And it will spend what appears to be an endless stream of dollars in order to do it. In fact their strategy seems to be to do everything in the most expensive possible way, to make it impossible for defendants to defend themselves.
If it turns out a 13-year old kid did it, then the RIAA goes after the 13-year old kid.
The people I talk to are full of anxiety, and are in a dilemma they can't solve. One lady called me asking if this means her daughter will go to jail. Another wanted to know how to stop the RIAA from suing her disabled daughter.
Lately, the RIAA has taken to sending out press releases, for each crummy $6000 to $9000 case, to the local newspapers where the defendants live, just to publicly embarrass them.
They are clearly in a state of "terror".
Believe me, "radtea", even though you are more knowledgeable and sophisticated than most of the people who are being sued, you too would be full of anxiety were you in their position; you would find it to be a nightmare, unless of course you opted to pay the settlement money even though you hadn't committed any copyright infringement.
If the judges go along with this faked campaign, and don't put an end to it, it is a "reign" of terror.
I am hopeful they will shut it down, and it will have been a short lived "reign".
But the harm already done to the people who have been sued is incalculable. I hope you never have to go through what they are going through.
I agree with you. The headlines sometimes don't match the content.
What do you mean by "article title writer"?
Just want to clarify something. The post suggests I was speaking for the EFF. I love the EFF, I'm a member, I got into defending RIAA defendants through the EFF, I applaud their efforts in everything I've seen them do... but I'm not an employee or leader of the organization and I am certainly not an authorized spokesman for it. I'm just an ordinary "country" lawyer (in Manhattan) trying to fight for my clients.
I think it's ok that the Court let them withdraw their claim, so long as they're required to pay the legal fees.
An important precedent has been established. The RIAA can't tie someone up in court for a year and a half, with a frivolous case, and then avoid exposure for attorneys fees by withdrawing the case at the eleventh hour. This puts a wrinkle in the RIAA's play book, and it will encourage more people to fight back, and more lawyers to take on their cases.
Lumping all lawyers together does a disservice to the good guys, and is a favor to the bad guys. What do you do for a living?
Dear "hackstraw" What do you do for a living?
Yes but judges don't like to disagree with other judges.
Not so. I'm sure they get paid by the hour.
They don't make money on the lawsuits, even on the default judgments. They make money on the settlements, though, which is why I am always glad to see someone fighting back.
Yes, they've lost a lot of money on it, and they will lose even more if the judge requires them to may Ms. Foster's attorneys fees.
1. The daughter is not a minor. 2. The mother would not be responsible.
Dear "Anonymous Coward" The RIAA complaints (19,000 or so) allege that defendant "downloaded, distributed, and/or made available for distribution". They don't actually particularize any incidents of "downloading" or "distributing", just of "making available" (which, the last time I looked, wasn't a copyright infringement at all).
Dear "Anonymous Coward" I think that when you lump all lawyers together like that -- treating those who would help poor and working people without any real hope of getting properly paid for it the same as those who would do the unconscionable and unspeakable things the RIAA lawyers do daily, for which they are handsomely paid -- you do a disservice to the good guys, and a favor to the bad guys. Lawyers are just like any other people; there are good guys and bad guys. Support the good guys; criticize the bad guys. When someone does the right thing, recognize it, and applaud it. In this case, Marilyn Barringer-Thompson has fought a valiant fight against a giant cartel for which I can assure you she has received little or no money. In doing so she is carrying out the highest tradition in our profession, and in our country's history. We should all be sending her a thank you note.
I agree with you that no attorneys fee award will make Ms. Foster whole for the suffering she has been put through. But an attorneys fee award will (a) help her out a lot, (b) help her lawyer -- who put herself through hardship in order to take on a case like this -- considerably, and (c) indirectly help a lot of other people who otherwise couldn't afford legal representation, because an attorneys fee award will send out a message to other lawyers that if they take on the cause of a defenseless person who hasn't done anything wrong, the courts will be on the side of the good guys.
Incorrect. Under the Copyright Act it is NOT necessary that the prevailing party show that the other side's claim was frivolous in order to be awarded attorneys fees.
Not unless he's got a wealthy client who is willing to pay a lot of legal fees. Which is never the case in these cases. All the lawyers I know are doing it on a pro bono basis or on a drastically reduced fee basis. I myself have probably given away around $300,000 worth of legal services by doing the cases on a drastically reduced fee basis. But there is a limit to how much each of us can stand. If a single practitioner takes on one of these cases pro bono, he could wind up doing $100,000 worth of legal work on it for free. He may not be able to afford to do more than one case at a time. But if the client gets a $75,000 attorneys fee award, and the lawyer gets paid $75,000 that way, he can afford to take on 4 cases at a time.
Are you so sure she was a minor? I doubt it. If she were a minor, I believe the Court would have required the appointment of a guardian ad litem.
1. The case against the mother is closed. 2. The mother's case against the RIAA for attorneys fees is still open. 3. A precedent is established that by withdrawing a case the RIAA does not immunize itself from liability for the harm it caused by prosecuting its meritless lawsuit in the first place. Sounds pretty good to me.
That is not the portion of the decision dealing with the Copyright Act. The standard for awarding attorneys fees in copyright cases is not as stringent as the above quoted standard.
It may not be a binding legal precedent but it is an important practical precedent.
Good catch, this is exactly like Priority Records v. Candy Chan (the case against the mother). When Ms. Chan's lawyer made a motion for summary judgment and attorneys fees, the RIAA finally withdrew its case "with prejudice", hoping to avoid an attorneys fee award. In that case it succeeded in avoiding liability for attorneys fees based on the judge's opinion about the specific procedural things that occurred in that case. In this case, we will have to see what the judge rules when the attorneys fee motion is made. But my guess is that there will indeed be an award of attorneys fees here, and it will be more than a slap on the wrist.