Recording Industry vs The People: RIAA Refuses to Turn Over Its Attorneys Billing Records in Capitol v. Foster; Debbie Foster Moves to Compel

Friday, February 23, 2007

RIAA Refuses to Turn Over Its Attorneys Billing Records in Capitol v. Foster; Debbie Foster Moves to Compel

In Capitol v. Foster, in Oklahoma, the RIAA has refused to turn over its attorneys billing records, although Ms. Foster had demanded those records almost a year ago.

Citing caselaw which establishes that, in connection with an attorneys fees motion, the fees spent by the non-prevailing party are relevant to the reasonableness of the prevailing party's fees, Ms. Foster has now made a motion to compel production of those records.

Defendant's Motion to Compel Production of RIAA's Attorneys' Billing Records*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

11 comments:

Alter_Fritz said...: Ok, it's the RIAA so this behaviour comes to noones surprise i guess. ;-)
But beside that Ray, if it wasn't the evil RIAA and their lawyers, would such a behaviour make any procedural sense? e.g. lets say a lawyer has a "special discount" arrangement with his client so what he pays him in reality and what he officially bills him is different, would that somehow be illegal and could such an arrangement bring the lawyer into trouble if a court would find out such a thing?

This is a serious question since in germany for example there is a law that lists how much lawyers can charge you. Do you have some laws how much to pay in this kind of civil cases. Or is a US lawyer free to say "I charge you xxx$ per hour work"?; February 23, 2007 at 8:43:00 AM EST
Scott Ferguson said...: How long can the RIAA continue to blow off the courts? What could be the consequence of their refusal to comply in this instance?; February 23, 2007 at 9:54:00 AM EST
Scott Ferguson said...: Apropos of nothing: I would like to see Amazon.com and other online CD retailers flag CDs published by RIAA member labels, so that I can choose not to purchase them.

This would be similar to food labeling. Look on the back of a typical candy bar, and you see, "This product manufactured in a facility that processes peanuts" so that people suffering from anaphylaxis aren't inconvenienced by a trip to the hospital.

By the same token, RIAA labels should contain the warning, "This CD manufactured by a trade association member that bullies its customers with John Doe lawsuits." This is an industry not worth supporting.; February 23, 2007 at 11:01:00 AM EST
Anonymous said...: It looks like they cited three cases from the 10th Circuit Court (the court above the District Court in which this case is held). Multiple instances of directly relevant case law from a directly superior court? Yeah, not looking good for RIAA on this one.; February 23, 2007 at 1:08:00 PM EST
Anonymous said...: Contempt!

So, the RIAA is totally ignoring the defendant's right. Which should not be surprising -- since they seem to trample on everyone else's. Really, it's getting to be whre I'm not surprised by anything they do. Trying to close off WiFi, trying reduce musican compensation.

It's seems like the RIAA only sees one right -- their own.; February 23, 2007 at 2:02:00 PM EST
raybeckerman said...: If the RIAA spent $100k on their lawyers it's going to be hard for them to claim that Ms. Foster's $55k was "unreasonable".; February 23, 2007 at 4:24:00 PM EST
raybeckerman said...: Their motion for reconsideration is probably frivolous. They might get hit for Rule 11 sanctions.

I think the RIAA will, one way or the other, wind up reimbursing Debbie Foster for the additional fees incurred in defending the RIAA's frivolous "reconsideration" and "clarification" motions.

In fact, the judge might even charge the lawyers personally.; February 23, 2007 at 4:26:00 PM EST
Alter_Fritz said...: Scott Ferguson voiced an opinion about Amazon and their help to make CD buying more safe for Customers.

I second this.
If you buy today a product from a RIAAmember, rip it to your mp3 player or to your computer Harddisk, you never know if next week this might be a big mistake because you are named in a lawsuit because you have an internetaccount and their "expert" gets his hand on your HDD and you are forced to explain yourself even if every music on it is total legal
Buying "product" from a business that sues you for having that product is dangerous! So Amazon and Co. should act responsible with the best interest of their Customers in mind and flag these dangerous goods accordingly....

Until then, this might help concerned Customers like Ferguson;
Is this CD safe? Find out at RIAAradar.com; February 24, 2007 at 12:45:00 AM EST
Anonymous said...: If you can clairfy something for me.

Is the billing records of an attorney covered under privledge? It seems to me that the judge in this case would not only have no choice in granting this motion, but also cite sanctions against the lawyers that filed the "reconsideration" motion.

I think that the whole point of the [reconsideration] motion, to me, is to intentionally run up the bill of Ms. Foster's lawyers so that the RIAA can claim that her bills are unreasonable. That said, is there anything that the judge can do to stop this?

I know that I'm asking a lot of questions, but I think that this case will make or break the RIAA's campaign. I hope it breaks it.; February 24, 2007 at 6:31:00 AM EST
raybeckerman said...: If they're going to attack the reasonableness of Ms. Foster's fees, then the fees they paid their attorneys are obviously relevant.

I agree that the reconsideration motion is frivolous, and that they are in danger of being sanctioned.

The whole point of the reconsideration motion is to show how tough they are. There is no legal point. The only permissible basis for the motion is that the judge 'overlooked' something; but they cannot point to anything that he overlooked.; February 24, 2007 at 10:29:00 PM EST
Anonymous said...: "The only permissible basis for the motion is that the judge 'overlooked' something; but they cannot point to anything that he overlooked."

I beg to differ sir, he overlooked the fact that this is really going to embarrass the RIAA and it's lawyers.

He also overlooked that RIAA Richard has taken a bit of a thrashing lately and the floodgates to legal fraud might quickly be closing.; February 28, 2007 at 1:47:00 AM EST

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove