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SCOTUS Asked To Decide On Legal Fees In RIAA Cases 164

Posted by kdawson
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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SCOTUS Asked To Decide On Legal Fees In RIAA Cases

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  • Question (Score:5, Interesting)

    by Oxy the moron (770724) on Tuesday March 25, 2008 @02:18PM (#22860652)

    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)

      by toleraen (831634) * on Tuesday March 25, 2008 @02:22PM (#22860684)
      They don't want to have to counter sue, they want attorney fees automatically granted when the RIAA drops the lawsuit since the dependent technically won the case.
      • Okay, that makes sense.

        My follow-up question then is... are there other examples in case law where the defendant has been awarded these fees outright? I was of the impression that you always had to counter-sue for legal fees if you wanted them.

        • Re:Question (Score:5, Informative)

          by toleraen (831634) on Tuesday March 25, 2008 @02:36PM (#22860844)
          Yes, this is why they are asking for SCOTUS to get involved. Different courts are citing Fogerty v. Fantasy Inc differently, and if I'm reading the article correctly, the courts are determining that RIAAs lawsuits are not considered frivolous, so no attorney fees should be given to the defendant.
          • Re:Question (Score:5, Interesting)

            by Sancho (17056) on Tuesday March 25, 2008 @03:32PM (#22861574) Homepage
            I think that it's unlikely that the SCOTUS will even hear the case. If they do, I think that they're not likely to rule in favor of automatic attorney fees.

            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.
            • Re:Question (Score:4, Informative)

              by Benaiah (851593) on Tuesday March 25, 2008 @07:11PM (#22864108)
              The problem here is typically a counter-sue for legal fees happens when the defendant wins the case. However what happens is the RIAA threatens 10,000 people. Some ignore it, some settle it and some get a lawyer... As soon as there is any doubt that the RIAA will win a case they just drop it and say "We won't be proceeding with any legal action"
              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.
            • I highly doubt however that congress ever considered a significant portion of VOTERS to be on the hook for legal fees to one group in this way.

              When a very large number of random citizens are being caught up in what are obviously unresearched lawsuits by a monstrously large entity, something should be done to help out those citizens, and hopefully the courts see that.
      • Re: (Score:3, Insightful)

        by esocid (946821)

        since the dependent technically won the case.
        I see what you did there. Clever.
    • Re:Question (Score:4, Interesting)

      by Raul654 (453029) on Tuesday March 25, 2008 @02:36PM (#22860854) Homepage
      As I understand it, you can counter-sue, but that involves a great deal of additional cost. A judge can, of his own volition, order one side to pay the other side's fees, but (paraphrasing PJ from Groklaw) they usually only do that when one side was really, really wrong and the judge wants to teach them a lesson.
    • Re:Question (Score:4, Insightful)

      by Dachannien (617929) on Tuesday March 25, 2008 @02:43PM (#22860928)
      What I don't get is that the federal copyright statutes make explicit provisions for granting attorney's fees and court costs to the prevailing party, but it's still apparently like pulling teeth to get the courts to go along with it. If Congress didn't intend for people to actually be able to claim compensation when they win after suing/being sued, why did they put it in the statute?
    • Re:Question (Score:5, Informative)

      by cfulmer (3166) on Tuesday March 25, 2008 @02:51PM (#22861030) Homepage Journal
      In a typical lawsuit in the US, each side generally pays its own attorneys fees, regardless of who wins. A court may award court costs, but those are usually quite small relative to attorneys fees. In frivolous cases, attorneys fees are also sometimes awarded.

      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.
    • Re:Question (Score:5, Informative)

      by The Empiricist (854346) on Tuesday March 25, 2008 @02:53PM (#22861048)

      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.

      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:

      In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs.

      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.

      • Re: (Score:2, Insightful)

        by Atanamis (236193)

        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.

        If the Open Source Software Community files frivolous lawsuits wi

        • If the Open Source Software Community files frivolous lawsuits with insufficient evidence, they OUGHT to pay "reasonable attorney's fees". The fact that the bad rules can be abused by both sides is no justification for leaving the rules as they are. Just stop filing lawsuits that you can't actually win. Lawsuits should be filed when you have strong evidence that you have been wronged, not when you want to go on a fishing expedition to find out if someone might be cheating you.

          Losing or settling a case doe

      • Not to mention the impact of having to pay the RIAA legal fees if you lose a RIAA suit.

    • My understanding is that the prevailing party gets fees awarded in copyright cases. The question is whether one "prevails" if the other side withdraws their lawsuit. IMHO, yes, but that's a personal opinion I'm not basing on any law.

      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
    • by Anonymous Coward
      Attorneys fees in copyright cases can be, **but do not have to be**, awarded to the "prevailing party." See 17 USC 505. This is different from most cases under US law, in which a prevailing defendant typically isn't entitled to seek a fee award. (BTW, if a copyright plaintiff did not have timely registration of its copyrights, it cannot get attorneys fees even if it prevails. See 17 USC 412) Contrary to some of the comments (which I strongly suspect are not from attorneys, much less copyright specialis
    • by jrboatright (843291) on Tuesday March 25, 2008 @04:20PM (#22862240) Homepage
      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.

      • You bring up a very good point about how automatic damages might cut the wrong way in a lot of cases. What might be interesting is some sort of penalization for pulling out of a suit early, as happened in this particular instance. Had the suit been run to completion, it might have been more definately frivolous, thus falling under existing precedent. This type of policy would also make a strategy dependent on never losing (ie, dropping any case that might fail) less tenable.
        • by rtb61 (674572) on Tuesday March 25, 2008 @11:35PM (#22865880) Homepage
          Actually it is normal in a lot of countries to have the loser in a civil case pay all court costs, however the lawyers fees are at a set rate and are not open slather. The point is to stop frivolous law suits, where often a company is attempt to punish and silence an individual by penalising them with legal defence costs.

          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.

      • 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"

        The problem is is these cases are already bad. How many people can afford to pay a lawyer when sued by the RIAA? On the other hand how many people would file suit if they had to pay the defendant's costs if they lose? Luckily "I" didn't face having to pay the defendant's attorney fees if I

  • by Kenja (541830) on Tuesday March 25, 2008 @02:20PM (#22860660)
    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.
  • by themushroom (197365) on Tuesday March 25, 2008 @02:23PM (#22860694) Homepage
    They sent out the invitations to the party, they get to foot the bill.
  • by Bryansix (761547) on Tuesday March 25, 2008 @02:25PM (#22860718) Homepage
    This might set precident if SCOTUS rules in favor of it for the US going to a loser pays court system which I think would be a great idea.
    • by gstoddart (321705) on Tuesday March 25, 2008 @02:45PM (#22860954) Homepage

      This might set precident if SCOTUS rules in favor of it for the US going to a loser pays court system which I think would be a great idea.

      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 .... one would hope that they can't just go around saying "you stole music" without any consequences whatsoever when it is realized they have neither sufficient (nor, possibly even legally admisable) evidence to support that claim.

      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
      • Re: (Score:3, Interesting)

        by Prof.Phreak (584152)
        How about a loser pays upto a maximum of what the other side is paying their lawyers.

        So if RIAA is suing you without evidence, and spending $10k on their lawyers, then they're liable to pay you $10k for your lawyer.

        Similarly, if you want to sue a large corp, and you spend $2k on a lawyer, they can only get back what you paid for your lawyer, meaning $2k (even if they spend $20k defending their case).

        They'll either have to get cheaper lawyers, or stop suing folks.
        • Similarly, if you want to sue a large corp, and you spend $2k on a lawyer, they can only get back what you paid for your lawyer, meaning $2k (even if they spend $20k defending their case).

          They'll either have to get cheaper lawyers, or stop suing folks.

          I was hit by a moving van and while in a coma my family hired an attorney. In the first 3 months he spend $100,000 on collecting evidence. My medical bills came to more than $120,000. Now what's the likelihood my family would have hired a lawyer when

    • by Mistlefoot (636417) on Tuesday March 25, 2008 @02:46PM (#22860962)
      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".

      • by moderatorrater (1095745) on Tuesday March 25, 2008 @03:09PM (#22861298)
        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.
        • by gnasher719 (869701) on Tuesday March 25, 2008 @05:11PM (#22862922)

          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.
          You should have a look at countries where they _have_ a system of "loser pays", and how they manage to get a proper balance.

          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).
        • by debrain (29228) on Tuesday March 25, 2008 @05:19PM (#22863004) Journal

          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

      • by Will_Malverson (105796) on Tuesday March 25, 2008 @03:27PM (#22861532) Journal
        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.
      • by LWATCDR (28044)
        Yes it would have a chilling effect on law suits. That could be both good and bad like most things in life.
        It might stop people from suing after they get hurt trimming their hedges with a running lawnmower. But it might also stop people from suing a big company that makes a really dangerous product.
      • Our legal system is an adversarial one, which has the tendency to mean that the more you can pay for it, the more likely you are to have a much better outcome.

        Why is that? Why is a fundamental right, that of equal justice, dependent upon your wealth?

        People talk about making health care a fundamental right, what about taking back our fundamental rights to fair justice? Let's start making the legal system work FOR the people, instead of people subject TO the legal system.
    • by radarjd (931774) on Tuesday March 25, 2008 @02:50PM (#22861008)

      This might set precident if SCOTUS rules in favor of it for the US going to a loser pays court system which I think would be a great idea.

      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.

      • Re: (Score:3, Interesting)

        by fredklein (532096)
        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?

        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
      • by johnkoer (163434)
        Maybe we could come up with a percentage based system, so the loser pays the lesser of the following:

        1.)The percent of their income that is equivalent to the percent of the income that the winning party paid their lawyers.
        2.)The total sum paid to the winners lawyers.

        For example:

        Big XYZ company paid $5M in lawyer fees, and they have an annual income of $100M.
        Joe Blow paid $10k in legal fees and has an annual income of $50k.

        If Big XYZ wins, Joe only has to pay 5% of his total income ($2500).
        If Joe Blow wins,
    • This might set precident if SCOTUS rules in favor of it for the US going to a loser pays court system which I think would be a great idea.

      Would you think it was a great idea if through their own fault somebody injured you?

      Falcon
  • Standard? (Score:3, Insightful)

    by Anonymous Coward on Tuesday March 25, 2008 @02:26PM (#22860730)
    Why isn't this the standard, anyway?

    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)

      by sm62704 (957197)
      Why isn't this the standard, anyway?

      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

      • by compro01 (777531)

        Because it significantly raises the potential cost of suing someone

        only when done in a stupid manner.

        a sensible manner (which is used in some places, i believe) would be something like equal claimable fees. if you (the plaintiff) spend $1000 on your lawyer and you lose, you won't have to pay more than $1000 worth of legal fees to the defendant (and the $1000 to your lawyer, of course). if you win, they pay your legal fees ($1000) and whatever they spent on (a) lawyer(s). this would also have the effect of making it less viable to attempt russian army tactics by throwin

        • a sensible manner (which is used in some places, i believe) would be something like equal claimable fees. if you (the plaintiff) spend $1000 on your lawyer and you lose, you won't have to pay more than $1000 worth of legal fees to the defendant (and the $1000 to your lawyer, of course). if you win, they pay your legal fees ($1000) and whatever they spent on (a) lawyer(s). this would also have the effect of making it less viable to attempt russian army tactics by throwing 30 high priced lawyers at you.

          And

    • 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.

      I can see, like in this case, the person or e

  • by Gat0r30y (957941) on Tuesday March 25, 2008 @02:26PM (#22860736) Homepage Journal

    "There is a clear and present need for this Court's intervention and guidance on this important issue of copyright law,"
    Indeed, unless they give this guy his lawyer's fees, it sets a really dangerous precedent. Namely, any old lawyer/copyright holder can just start suing assloads of folks, hoping most will just settle to avoid the cost of litigation and drop all the suits that don't get settled. There isn't any incentive for the defendant to fight back against frivolous copyright infringement lawsuits.
    • Excuse me? (Score:3, Insightful)

      by hassanchop (1261914)

      There isn't any incentive for the defendant to fight back against frivolous copyright infringement lawsuits.


      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)

        by parcel (145162)

        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

        • I disagree (Score:2, Interesting)

          by hassanchop (1261914)

          And hiring a lawyer to fight a lawsuit which would be cheaper to settle is fiscally irresponsible.

          How so? I consider the protection of my reputation to be worth something. I also consider my personal freedom to be worth something. If I have the money, there's nothing "fiscally irresponsible" about using it for something I consider important.

          If you were told that with 20k you could protect a large portion of the population from future abuse, would you do it? I have ot think, based on your post, you would

        • Re: (Score:3, Interesting)

          I can't agree with you. Giving in to blackmail or extortion is NEVER fiscally responsible, nor is it socially irresponsible.

          If you had some guarantee you could believe that paying up this time would prevent ever having to pay up again - for any reason - it may be personally responsible, but here you have no guarantee at all, so you might have to pay out to every spammer who gets your email address - uh, I mean every lawyer who finds out about your willingness to pay rather than fight.

          As I see it, in the lon
          • I am also for the corporate death penalty for the RIAA and others that abuse the legal system for profit. I think they should forfeit their charter, have their assets sold at public auction, and their board of directors forbiden from ever serving on another board of directors.

            Ah, so you know about the revocation of corporate charters [celdf.org]?

            Falcon

      • Re:Excuse me? (Score:4, Interesting)

        by smellsofbikes (890263) on Tuesday March 25, 2008 @04:14PM (#22862144) Journal
        While I'd like to think that many people are as stoic as you, I certainly am not: I'm within 10 years of retiring, quite early because I've spent the last 15 years putting everything I can in savings and investments rather than buying new cars. I'd sure hate to lose all that and have to work until 70. Sure, risking that is part of making the world a better place, but it's not rational to expect that most, or even many, people will bet their personal future to make the world a little tiny bit better. It's a matter of proportion: I don't drive 100 miles an hour because that has a very poor risk/reward ratio -- I endanger many people and only get where I was going a short while earlier. But, likewise, it would also be stupid for me, personally, to throw away my future to be a single data point in the fight against big corporations. I don't like saying this, but faced between surrendering, even if I was in the right, and losing everything I've worked for this last 15 years, I wouldn't even hesitate.
        • While I'd like to think that many people are as stoic as you, I certainly am not: I'm within 10 years of retiring, quite early because I've spent the last 15 years putting everything I can in savings and investments rather than buying new cars. I'd sure hate to lose all that and have to work until 70. Sure, risking that is part of making the world a better place, but it's not rational to expect that most, or even many, people will bet their personal future to make the world a little tiny bit better. It's a matter of proportion: I don't drive 100 miles an hour because that has a very poor risk/reward ratio -- I endanger many people and only get where I was going a short while earlier. But, likewise, it would also be stupid for me, personally, to throw away my future to be a single data point in the fight against big corporations. I don't like saying this, but faced between surrendering, even if I was in the right, and losing everything I've worked for this last 15 years, I wouldn't even hesitate.

          While I think you have eloquently and fairly made the case for your outlook, I would rather be dead than live like that.

          • There is no person on slashdot I respect more than you, and I'm glad you're doing what you're doing. I'm fighting a bunch of other battles, and this isn't one that matters enough to me to risk the other things I'm doing. A person has to choose which fights are worth it.
            I'm reminded of a line from J. D. Salinger: "any fool can die for a cause, but it takes a lot more work to live for one." You're no fool, and that's why you're winning your fight -- one to which I've contributed, as it happens. But I know
            • Re:Excuse me? (Score:5, Insightful)

              by NewYorkCountryLawyer (912032) * <ray@@@beckermanlegal...com> on Tuesday March 25, 2008 @05:40PM (#22863246) Homepage Journal

              There is no person on slashdot I respect more than you, and I'm glad you're doing what you're doing. I'm fighting a bunch of other battles, and this isn't one that matters enough to me to risk the other things I'm doing. A person has to choose which fights are worth it. I'm reminded of a line from J. D. Salinger: "any fool can die for a cause, but it takes a lot more work to live for one." You're no fool, and that's why you're winning your fight -- one to which I've contributed, as it happens. But I know it's not a fight in which I could participate: given my circumstances, the potential loss outweighs any potential gain.
              I understand, and I meant it when I said that your point was made both "eloquently and fairly". And Lord knows one has to pick one's fights.

              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.
    • No, there is prior art. To wit, RIAA. The scenario you decribed is exactly what they have been doing. Most of the defendants either give in and pay the extortion fee, and the ones that don't, RIAA backs off. But, RIAA does not want to pay the legal costs of the defendants when they back off.

      So, currently, it's a very effective extortion racket.

  • by QCompson (675963) on Tuesday March 25, 2008 @02:29PM (#22860770)
    These "ZOMG SCOTUS to fight RIAA in cage match!!!" articles I have seen floating around the tubes seem a bit misleading. Thousands of litigants petition the Supreme Court to grant cert every year, and the court ends up accepting only a few dozen cases.

    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.
  • by protolith (619345) on Tuesday March 25, 2008 @02:31PM (#22860788)
    The most significant thing that would curtail frivolous lawsuits in this country would be the requirement that whoever loses a case or drops out has to pay all of the legal fees.

    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.
    • by snarkh (118018)

      A brilliant idea indeed! For example if you sue DELL for selling you a defective product and lose, you pay all of DELL's legal fees in the case.
      • Re: (Score:2, Insightful)

        by Bloodoflethe (1058166)
        It makes sense only for case droppers imo.
      • Re: (Score:3, Insightful)

        by protolith (619345)
        That's not exactly how it would play out.

        Most corporate lawyers try to settle on anything that holds water that is brought against the company they are representing. They typically want to prevent the precedent of rulings against them for anything that the company did wrong or illegal (or have the details of a case made public in a trial). In these situations they are already paying the claimants legal fees, so that much would be the same.

        In the situations where the case is total crap and everyone involve
        • by snarkh (118018)

          Well, if your claim against DELL is frivolous then the judge would be justified in making you pay DELL's legal fees.
          However you may have a reasonable claim, which is just not strong enough to win in court or, for example, lose on a technicality. In that case being bankrupted by DELL's legal bills does not seem very fair.

    • Re: (Score:3, Interesting)

      by camusflage (65105)
      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.

      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)

      by WindBourne (631190) on Tuesday March 25, 2008 @02:44PM (#22860944) Journal
      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.
      • Not so, not so (Score:2, Informative)

        by hassanchop (1261914)
        This article explains why that's not really an option

        http://www.reason.com/news/show/29696.html [reason.com]

        A common fear about loser-pays is that the side who loses a routine dispute will get handed a bill for 10,000 hours from Cravath, Swaine & Moore. But European courts are well aware of the danger that successful litigants will overinvest in their cases and gold-plate their fee requests. They carefully control the process to prevent that danger, giving the losing side a full chance to dispute a fee award, requi

        • by sumdumass (711423)
          But that still doesn't address a reasonable fee of $300-$500 an hour with three or more lawyers charging that to defend the different aspects of the case. If your trial is particularly hard, you will have one or two weeks or more arguing alone. Let stay with one week, use 3 layers at a reasonable but low $300 and hour. That's something like 30,000 for a 5 day 8 hour trial alone. Then add prep, motions, and everything normally used to defend the charges and consider that you, the person doing the suing is do
    • Re: (Score:2, Insightful)

      by tradotto (874026)
      So your saying that if you ever have to sue MS or Google or Apple or anything, for a valid patent violation and their heavy hitting lawyers win with some big money law magic now you have to pay for it? GLWT
    • by zappepcs (820751) on Tuesday March 25, 2008 @03:01PM (#22861192) Journal
      While that sounds good, in this case the RIAA didn't even know if they were suing the right person. The case was dropped when it was shown that it was not this guy doing downloading, so that essentially he is having to pay court costs to prove he wasn't guilty. A good counter suit to the tune of 3 times his costs or more should help set the right precedent. If the **AA continues to sue people without being sure they are even suing the right people, their evidence is flawed horrendously. Sure, there is some purchase here for using the probable cause phrase, but in the end they were wrong and significantly distressed and inconvenienced this guy.

      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.
    • I live in Canada, and we have a loser-pays system. I recently moved into a house where there were lots of "hidden" issues, that - unfortunately - went beyond your standard home pre-inspection. Among them, a dryer which had a loose vent (and was venting superheated air into a nice pile of dry lint) - that you couldn't see without rearranging half the laundry room, a range-hood that had the exit-vent sealed up, and a fuse-box in which hidden under 4 of 6 fuses were nicely scorched pennies. An inspector will g
  • by darkob (634931) on Tuesday March 25, 2008 @02:31PM (#22860790)
    However, this issue has nothing particular in common with the RIAA itself. Slashdot readers should know that within US legal system (common law, precedents, etc..) simply there's much different way of arguing things before the court. Almost everythig must be brought before the court. Within so called "continental law" (civil law, etc..) in most of the morld reimbursing attorney fees to the winning side of the case is a rule rather then an exception that has to be argued specially.
  • by WindBourne (631190) on Tuesday March 25, 2008 @02:31PM (#22860796) Journal
    it should include HIS time. This was a frivoulous lawsuit and was brought PURELY to harass and set examples. If **AA's are forced to pay legal fees, and the aquited defendant's time (which is probably even more than the legal time), then it would be fairer. Of course, that begs the question, can there be such a thing in a harassment law suit?
  • by h890231398021 (948231) on Tuesday March 25, 2008 @02:33PM (#22860808)

    [...] 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.

    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)

      by sm62704 (957197)
      I wonder, if the RIAA sued you and lost, could you counter-sue for slander? Somehow I doubt it, but it sure would be sweet!

      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.
    • is that substantial punative damages need to be assessed to compensate the individual for lost time

      2 things: money should be given to the individual to offset actual and even perceived expenses and losses.

      but that should not also mask the need to PUNISH goliath for causing trouble time and time again with david. the amount of 'hurt' needs to be real and significant to make the mafiaa (etc) stop their bullying tactics.

      so that's 2 things: 'regular people' should not be left bankrupt when goliath picks an ill
  • by mlwmohawk (801821) on Tuesday March 25, 2008 @02:44PM (#22860930)
    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.

    • Re: (Score:3, Interesting)

      by mooingyak (720677)
      It should have more to do with the legitimacy of the case brought forward.

      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)

      by ICLKennyG (899257)
      As a law student who has had this debate at length in my Civil Procedure course I'm going to have to step up and chime in for the non-automatic payment of the losers fees. First there are routes of counter suits and counter claims if it's important and needed. But the main reason is that it will make the idea of profiteering law suits more dangerous just differently structured. It's just a numbers game. If you get a threatening letter stating a claim which could cost $2m to litigate and you have a 10% c
    • First, let me point out that I am not a lawyer, though I have taken a class that covered some of this stuff.

      That said, recovery of court costs & attorney's fees is NOT automatic, nor will this case make them. We treat different types of cases differently. In SOME of those, there might be automatic or nearly-automatic awards. At most, this case would have the prevailing party awarded money in copyright cases, not all of them. Attorney's fees are also generally limited to being "reasonable" but I put
    • 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.

      This is probably a bit simplistic, but how about doing it based on net worth?

      If $GOLIATH_ASSETS > 10,000 * $DAVID_ASSETS , assessed by an impartial auditor at the start of the case, then Goliath pays if he loses or drops the case.

      Of course, then what do you do if Goliath's assets are hidden offshore somewhere? Like I said, it's simplistic, but you get t

  • About time (Score:2, Troll)

    by Honest Man (539717)
    With the number of lawsuits the RIAA throws out, this will pressure them into not only having better evidence but 'real geeks' answering tech questions in court instead of noobs saying what their puppet master tells them.

    I look forward to a time where if the RIAA sues someone and at the last minute drops the case because they're about to lose - that they have to pay to get out of the lawsuit. In fact I'd like to a fine equal to the amount they sued for being given to the defendants if the RIAA runs from a c
  • by mpapet (761907) on Tuesday March 25, 2008 @03:10PM (#22861314) Homepage
    I'm definitely not a lawyer, but it seems to me that common sense and fairness never actually enter into a legal argument. There's precedence and the lack thereof, but never "it's not fair."

    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.
  • SCOTUS grants less than a percent of all cert petitions, and in this case the ruling would set a widely applicable precedent, which is precisely why they wouldn't even look at it.
  • by westlake (615356) on Tuesday March 25, 2008 @04:18PM (#22862220)
    In the petition for certiorari filed with the Supreme Court

    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]

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