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New Attorneys Fee Decision Against RIAA 144

NewYorkCountryLawyer writes "The RIAA has gotten slammed again, this time in Oregon, as the Magistrate Judge in Atlantic v. Andersen has ruled that Tanya Andersen's motion for attorneys fees should be granted. The Magistrate, in his 15-page decision, noted that, despite extensive pretrial discovery proceedings, 'when plaintiffs dismissed their claims in June 2007, they apparently had no more material evidence to support their claims than they did when they first contacted defendant in February 2005.....' and concluded that 'Copyright holders generally, and these plaintiffs specifically, should be deterred from prosecuting infringement claims as plaintiffs did in this case.' This is the same case in which (a) the RIAA insisted on interrogating Ms. Andersen's 10-year-old girl at a face-to-face deposition, (b) the defendant filed RICO counterclaims against the record companies, and (c) the defendant recently converted her RICO case into a class action"
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New Attorneys Fee Decision Against RIAA

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  • by julesh ( 229690 ) on Sunday September 23, 2007 @05:52AM (#20717889)
    Also, if you stare at "attorney" too long, the word just looks funny.

    That's because it is funny. It's a 15th century misspelling of a french word, what do you expect it to look like?
  • by jimicus ( 737525 ) on Sunday September 23, 2007 @06:45AM (#20717995)
    I think the GP's point was "what is to stop the RIAA continuing to sent out nastygrams demanding money or we'll sue?"

    Unless the recipient seeks independent legal advice from someone who's actually aware of these cases before settling, the short answer is "Not a lot".
  • Re:Precedent! (Score:5, Informative)

    by StormReaver ( 59959 ) on Sunday September 23, 2007 @07:28AM (#20718161)
    Lower court decisions, such as this one, do not set precendents in any court other than their own. If the RIAA were to bring another similar case before this particular court, then this decision could be used to argue attorney fees against the RIAA. No other court is required to consider this result in its own decision.

    If the decision is appealed and upheld, then a precendent has been set for the circuit in which it was appealed. All lower courts within that one circuit would be required to apply the appeals court's decision in all subsequent similar cases.

    See this article [wikipedia.org] for details.
  • Re:Precedent! (Score:5, Informative)

    by NewYorkCountryLawyer ( 912032 ) * <ray AT beckermanlegal DOT com> on Sunday September 23, 2007 @07:57AM (#20718277) Homepage Journal

    Lower court decisions, such as this one, do not set precendents in any court other than their own.
    1. That is an overly simplistic view. Yes if there is an appellate decision in one circuit that is binding authority over all district court decisions within that circuit, and it is usually the only absolutely binding authority, other than Supreme Court decisions, on each district court within that circuit.

    2. But it is very very rare that any case is ever determined on the basis of an absolutely binding higher court authority. Almost invariably, where there is such authority available, the attorneys have figured that out long ago and there is no litigation to "decide".

    3. Most briefs that are submitted cite plenty of non-binding judicial authorities, and even where they are citing binding higher authority, it is usually based on vastly different sets of facts.

    4. There are numerous issues in the RIAA cases that will be decided on the basis of the fact that the RIAA has both brought, and pressed, numerous frivolous cases, with no evidence that the defendant committed a copyright infringement, just as was done in the Andersen case. And in those cases it continues to try to extort a "settlement" from the defendant even though it knows it has no case against the defendant. And in those cases where the defendant hangs tough, and is willing to see the case through to its conclusion and a jury trial.... the RIAA drops the case, as it did here. See, e.g., Capitol v. Foster [blogspot.com], Elektra v. Santangelo [blogspot.com], and Elektra v. Wilke [blogspot.com]. This recurring phenomenon will be relevant to future attorneys fees decisions, to possible sanctions motions against the record companies and their attorneys, to the record companies' claims of a "Noerr Pennington" defense which is not applicable to "sham" litigations, to claims of copyright misuse, and numerous other issues, in all district courts across the country, and will be cited by appellate courts when these cases finally do get to the appellate courts -- an event the RIAA is trying to avoid.

    So yes. This judge's recognition of the RIAA's tactics is a very important precedent.
  • Re:Precedent! (Score:2, Informative)

    by The Only Druid ( 587299 ) on Sunday September 23, 2007 @08:32AM (#20718397)
    Actually, this "court" doesn't set any precedent at all. Magistrate "judges" aren't actually judges: they're Article II employees, created by Congress, who serve at the whim of actual judges, i.e. Article III Judges.

    Magistrate Judges cannot actually do anything: their entire power comes from their parent district court's approval.
  • Re:Precedent! (Score:5, Informative)

    by NewYorkCountryLawyer ( 912032 ) * <ray AT beckermanlegal DOT com> on Sunday September 23, 2007 @08:44AM (#20718455) Homepage Journal

    Actually, this "court" doesn't set any precedent at all. Magistrate "judges" aren't actually judges: they're Article II employees, created by Congress, who serve at the whim of actual judges, i.e. Article III Judges. Magistrate Judges cannot actually do anything: their entire power comes from their parent district court's approval.
    1. They certainly are judges. They are not life tenure judges, but they are judges.

    2. They do not serve at anybody's "whim".

    3. Magistrate decisions are ctied all the time.

    4. There are many instances in which they have binding authority in the matter before them.

    5. As the underlying article [blogspot.com] makes perfectly clear, this was not a binding authority, but awaits approval by the District Judge.

    6. I'm not saying it doesn't happen, but in 34 years of working in the litigation field I cannot recall ever having seen a District Judge reject the Magistrate Judge's findings. Usually Magistrate's "recommendations" -- like this 15-page decision -- are extremely thorough.
  • Methinks they should base the attorney's fees awarded on what the plaintiffs spent on attorney and court costs. I'm sure the defendant would have been happy to spend more (yes, she won, but she obviously couldn't have known that at the onset), and the plaintiffs have clearly indicated what they believe the case was worth to try and work through the courts...
    I agree with you. Certainly, if the RIAA makes the mistake of challenging the reasonableness of the legal fees incurred, the Court will find the RIAA's own fees to be highly relevant. See, e.g. March 15, 2007, Order and Decision in Capitol v. Foster [blogspot.com].
  • Re:Dupe??? (Score:1, Informative)

    by Anonymous Coward on Sunday September 23, 2007 @10:11AM (#20718831)
    the firehose serves only as a testbed for posts, and any comments you post to the firehose do not really exist...
  • Re:Precedent! (Score:5, Informative)

    by NewYorkCountryLawyer ( 912032 ) * <ray AT beckermanlegal DOT com> on Sunday September 23, 2007 @11:07AM (#20719211) Homepage Journal

    The expectation by the RIAA of their attempts at extortion being protected by Noerr/Pennington probably encouraged them to start (and to continue) making them......could you give us a little insight into why the RIAA would fail at such a defense?
    1. Well, last week's decision by Judge Lazzara [blogspot.com] in UMG v. Del Cid, rejecting the RIAA's attempt to rely on Noerr Pennington, gives you one of the many reasons.

    2. Defendant's opposition papers in Lava v. Amurao [blogspot.com] and our opposition memorandum in UMG v. Lindor [blogspot.com] give you some others.

    3. I can't here discuss with you all of the many reasons the RIAA's attempts to hide behind Noerr Pennington will fail, since the RIAA lawyers seem to read everything I write on the internet, but if you follow the legal documents filed on my blog you'll no doubt see more on the subject.

    4. By the way, I doubt that they thought about Noerr Pennington when they started doing the illegal things they do; I think N-P is just an afterthought their lawyers came up with in hopes of preventing the Courts from finding out about their illegal conduct. But it will all come out. In the Napster case they lost their attorney client privilege by reason of the fact that their attorneys had lied to the US Department of Justice team investigating their digital music price fixing scheme. See "Court Finds Reasonable Cause to Believe that UMG and Capitol Deceived United States Dept of Justice" [blogspot.com], Recording Industry vs. The People, April 21, 2006.
  • by Anonymous Coward on Sunday September 23, 2007 @12:06PM (#20719687)
    For HTML, try:

    &euro;
    But be aware that it's not supported universally. Otherwise, you can just precede the number with EUR.
  • by the eric conspiracy ( 20178 ) on Sunday September 23, 2007 @12:24PM (#20719825)
    Prior to the invention of the printing press copyright was not necessary since there was no economic incentive to copy a work - maintenance of the slaves or paying the manual transcriber's salary was a far greater cost than buying copies from the author's agents.

    It was only in England (not too coincidently) the home of the industrial revolution 400 years ago this incentive brought about by mass production of copies first came to exist, and it is not too surprising that this is where and when copyright law first emerged.

    Playing on the idea of the noble savage not needing copyright law is disingenuous and completely neglects the main issue - mass production or copies at prices low enough to make a creator's work a significant part of the cost of the copy.

  • Speaking of money, I had always thought the RIAA was funded by the various member corporations, and was to some degree subject to their will. With the RIAA extracting substantial sums from these settlements, are they functioning now as an independent profit-making enterprise? Are they operating this lawsuit mill at a loss? If not ... where does the money go, anyway?
    Being somewhat familiar with what is going on, and being fairly good in arithmetic, I'm pretty sure they're operating the litigation mill at a substantial loss. But I think their primary objective is to save their dying business model, which is a much bigger problem than the few million a year they're dropping on the litigation.

    I.e., they are not measuring it in terms of whether the revenues from the litigation exceed the expenses of the litigation. The primary objective of the litigations isn't to produce revenue; it's to produce terror.

    The problem is, the people they're trying to terrorize are laughing at them, and have long ago figured out how to avoid detection.

    The people they are terrorizing aren't their enemies; they're innocent folks like Tanya Andersen.
  • I have no feel for the costs involved. I had sort of tacitly assumed that they were profiting from the cases that settled immediately
    Again, based on nothing more than my general knowledge and arithmetic, I think the RIAA
    -makes a profit on the settlements,
    -loses money on the default judgment cases (which make up the large majority of the cases), and
    -loses a ton of money on any contested cases.
    I think the percentage of cases ending in default judgments and in settlements has diminished, and the percentage being contested has increased, thus moving them from breaking even to losing money.
  • Re:Precedent! (Score:3, Informative)

    by NewYorkCountryLawyer ( 912032 ) * <ray AT beckermanlegal DOT com> on Sunday September 23, 2007 @08:40PM (#20723335) Homepage Journal
    1. Correction. I said "code", not "civil code".
    2. Correction. File sharing is not criminalized in the U.S.
    3. Congratulations. I'm happy for you that file sharing "has been determined to be legal" in your country.
    4. Question. Was the "determination" in a "code" or was it a judge's decision interpreting the code?
    5. Question. Do you want the judge's decision to be "perpetuated", or would you rather leave it up to other judges to ignore it because it was "misguided"?
    6. I am guessing that
    -it was a decision by a judge, because the "code" did not specify whether file sharing was legal or not, and
    -you would want other judges to follow that decision, rather than for each new case to be a guessing game as to what the judge's personal opinion will be.
    7. People need to know, when they wake up in the morning, how to plan their lives so they don't run afoul of the law. They need to know what the law is, and can't have a random system where each judge's personal opinion is all that counts. And no legislator is so much of a prophet that he can write a code that will cover all eventualities. Sometimes one needs a judge to apply the law to the facts. So you see, the 2 systems are not so dissimilar after all. And you are not so different than the people you are attacking. You too, want good judicial decisions to be followed by future judges.
  • Re:Precedent! (Score:2, Informative)

    by The Only Druid ( 587299 ) on Sunday September 23, 2007 @11:07PM (#20724229)
    While I'm not saying you're lying, I'm shocked: in the last week alone, I've seen a half-dozen magistrate R&Rs rejected and outright reversed.

    Of course, magistrate rules are binding within their own courts, but you cannot apply a magistrate ruling to a normal district court; all you can do is refer to the district court having adopted the R&R. That's why a magistrate, on their own, is nothing: their power is fully dependent upon their district court agreeing.
  • Re:Precedent! (Score:3, Informative)

    by NewYorkCountryLawyer ( 912032 ) * <ray AT beckermanlegal DOT com> on Monday September 24, 2007 @12:23AM (#20724747) Homepage Journal
    Sorry you didn't tell me from the outset that you were referring to Canada. Canada is a common law country, except for Quebec. Canada's law on file sharing is, as is that of the United States, unclear. It will probably take some good old fashioned common law judicial decisionmaking to clarify what the law is. But for now Canada is safer from big music's cruel lawsuits, because an appellate court in Canada correctly held in BMG v. Doe [blogspot.com] that the CRIA's evidence was too flimsy to warrant permitting the ISP's to turn over confidential subscriber information. So the lawsuits haven't been taking place in Canada, and I hope it stays that way.

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