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SCOTUS Asked To Decide On Legal Fees In RIAA Cases
Posted by
kdawson
on Tue Mar 25, 2008 01:11 PM
from the old-fogerty dept.
from the old-fogerty dept.
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."
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Submission: SCOTUS asked to decide on legal fees in RIAA cases by Anonymous Coward
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Question (Score:5, Interesting)
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 (Score:5, Informative)
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Re:Question (Score:5, Informative)
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Re:Question (Score:5, Interesting)
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.
Parent
Re:Question (Score:4, Informative)
You have already paid for your lawyer, but because you didn't "Win" the case, no precedent is set for the case and no legal fee's are awarded.
Parent
Re:Question (Score:4, Informative)
everyone has the right to free legal defense from the public defender if they cannot afford it on their own
This is only true in criminal cases, not in civil cases.
FalconParent
Re:Question (Score:4, Interesting)
Parent
Re:Question (Score:4, Insightful)
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Re:Question (Score:5, Informative)
In a copyright case, however, the rules are a bit different -- a judge in a copyright case can award attorneys fees to the "prevailing party." So, that brings up all sorts of questions around what "prevailing party" means, which is probably what this case is about. (I'm not familiar with the case.)
In any case, the fact that they applied for certiorari is really a non-event: it happens to thousands of such cases every year, and the Supreme Court only grants review of a small portion of them. The fact that the Appeals Court denied the appeal doesn't bode well.
Parent
Re:Question (Score:4, Informative)
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Re:Question (Score:5, Informative)
Since you specifically asked for /. lawyers, I'll point out that IANAL and even if I was one, I do not represent /. (or you).
The default rule for civil suits in the United States is that both parties pay for their own representation. The copyright statute provides an exception to this rule in 17 U.S.C. 505:
The right to request a reasonable attorney's fee is subject to registration of the copyright (See 35 U.S.C. 412).
Courts have read into Section 505 a right for defendants to request a reasonable attorney's fee too. But it's not in the copyright code itself.
Attorneys' fees are not the only way to deter or mitigate the costs of frivolous lawsuits. Lawyers can be held accountable for bringing suits where the lawyers do not believe a reasonable basis for filing suit exists. It is also possible to minimize the cost of an action by providing all of the facts upfront and requesting summary judgment (suits where parties fight to withhold information can become very expensive).
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.
Parent
IANAL, but I took a class on this. (Score:3, Informative)
Given that they're appealing to the Supreme Court, it would seem that they lost on that issue during appeals (i.e. the first court gave them fees, the RIAA appealed and won, now they're asking the Supreme Court to step in). The problem is that the Supreme Court has VERY limit
why granting legal fees is tricky. (Score:5, Interesting)
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.
Parent
Re:why granting legal fees is tricky. (Score:4, Informative)
Automatic court costs general favour the small guy, unless the company goes the endless civil suit route of appeals to higher and higher courts, with adjournments all to spend more than an individual can spend. This however fails when companies attempt to take on thousands of individuals because lose one case, precedent is set and they will likely lose every other case and basically big bucks go down the drain.
On top of that those laws are often in conjunction with barratry laws, where the winner of the case can effectively sue for damages and legal harassment (lost income while in court, stress, etc.), in the RIAAs case, lose a few too many cases as they have already done and it would also become automatic (really big bucks down the drain). So there is real reason why RIAA et al have been largely inactive against individuals in a lots of other countries.
Parent
Not only should they get their legal fees... (Score:5, Funny)
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.
RIAA should be liable for the messes they create (Score:5, Insightful)
This might set precident (Score:4, Interesting)
Re:This might set precident (Score:5, Insightful)
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
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
Parent
Re:This might set precident (Score:5, Insightful)
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".
Parent
Re:This might set precident (Score:5, Insightful)
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Re:This might set precident (Score:4, Interesting)
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).
Parent
Re:This might set precident (Score:5, Informative)
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
Parent
Re:This might set precident (Score:5, Interesting)
This would also give both sides an extra incentive to keep their legal fees down, always a good thing.
Parent
Re:This might set precident (Score:5, Interesting)
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.
Parent
Re: (Score:3, Interesting)
WHat about 'Loser pays the winner what the loser spent, but only up to what the winner spent'?
Sue a big corporation, you spend $1000 on a lawyer. They spend $100,000. You win, t
Standard? (Score:3, Insightful)
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: (Score:3, Funny)
If it were, how would the multinational corporations bully people with SLAPP [wikipedia.org] suits? Can't have those pesky citizens interfering with the corporate's God given and (bought) congress' legislated right to tell the non-monied to STFU or else, now can we?
-mcgrew
Re: (Score:3, Insightful)
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 l
Wonder if I could get a business patent on this??? (Score:5, Insightful)
Excuse me? (Score:3, Insightful)
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: (Score:3, Insightful)
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 convictio
Re:Excuse me? (Score:4, Interesting)
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Re:Excuse me? (Score:5, Insightful)
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.
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Re:Wonder if I could get a business patent on this (Score:3, Interesting)
So, currently, it's a very effective extortion racket.
Re:Wonder if I could get a business patent on this (Score:5, Insightful)
This is patent law I'm talking about, prior art doesn't matter!
Parent
Still not likely to be heard by SCOTUS (Score:4, Informative)
Although a split among the circuit courts makes it more likely that the SCOTUS will grant cert, it by no means makes it a certainty.
The Loser Should Always pay (Score:3, Insightful)
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: (Score:3, Interesting)
But, but, but... THAT'S UNAMURICAN! If I want to sue my neighbor for planting a tree that blocks my view of the sunrise, then I have that right, standing be damned.
There is a flip-side to this.. If I have a reasonable case (such as treating my personal information with all the due care given to a week old bag of garbage) and I sue a retailer (such as a large reta
Problem with that (Score:5, Insightful)
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Re:The Loser Should Always pay (Score:5, Insightful)
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.
Parent
Even loser-pays has drawbacks (Score:3, Interesting)
common law vs. civil law (Score:3, Interesting)
Not just his legal fees, but.... (Score:3, Insightful)
"Picking up the tab" isn't enough (Score:5, Insightful)
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: (Score:3, Insightful)
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.
Legal fees should not be automatic! (Score:5, Interesting)
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: (Score:3, Interesting)
If I have a reasonable complaint -- not necessarily one that ultimately wins out, but one where there are real issues to be determined, then no one should pay the other side's costs. It should not matter what my resources are, just as if Joe Shmo sues IBM/General Motors/Random Large Company because he got bubble gum on his shoe, he should be forced to pay the other side's legal fees regardless of his resources.
From what I understand
Re: (Score:3, Insightful)
Doesn't Smell Right (Score:3, Insightful)
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.
Don't hold your breath (Score:5, Informative)
The U.S. Supreme Court receives 7,000 or so petitions for review each year. It grants 150. About a quarter of these will ultimately be disposed of in single line or less.
The screening process begins with the Court's law clerks, who sift through the petitions and settle upon a select few that they deem worthy of consideration by the justices. Next, inside a closed conference room, the Chief Justice leads the meeting in which the Justices discuss the petitions and vote aloud on which cases they find more significant and deserving of deliberation. Voting begins with the Chief Justice and is followed by the Associate Justices according to seniority. The most junior Justice...takes the handwritten notes that will be passed to a clerk for public announcement... To be considered, a case must receive at least four votes. Whether or not a case is accepted "strikes me as a rather subjective decision, made up in part of intuition and in part of legal judgement," Rehnquist wrote in his book, "The Supreme Court: How It Was, How It Is." In deciding whether to review a case, the Court will generally consider whether the legal question was decided differently by two lower courts and needs resolution by a higher court, whether a lower court decision conflicts with an existing Supreme Court ruling, and whether the issue could have broader social significance beyond the interests of the two parties involved. However, not all cases of significant social issues needing resolution are accepted by the Supreme Court.
A History of the Supreme Court [findlaw.com]