In Capitol v. Foster, Judge Lee R. West has reaffirmed his decision that Ms. Foster is entitled to be reimbursed by the RIAA plaintiffs for her attorneys fees, rejecting the RIAA's Motion for "Reconsideration".
Judge West emphasized the Supreme Court's holding in Fogerty that
[b]ecause copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. Thus, a defendant seeking to advance meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious infringement claims.Judge West, in reviewing the rationale for his decision, noted that
While the Court stopped short of finding the plaintiffs' secondary copyright infringement claims frivolous or objectively unreasonable, it did find that such claims were "untested and marginal." While the Court did not find the plaintiffs' motives were necessarily improper, it did find those motives to be questionable in light of the facts of the case.He further held that
contrary to the plaintiffs' assertion, the Court did conclude that the Fogertv factor regarding the need for compensating the prevailing party under the particular circumstances of the case was, in fact, met. The Court noted that where, as here, the prevailing party is the defendant who, by definition, receives no award for damages at the successful conclusion of a meritorious defense, considerations of compensation become particularly important.In response to the RIAA's argument that their research had turned up no reported cases in which a Court had awarded fees but not listed the "Fogerty factors", the Judge pointed out to the RIAA that his research had turned up a number of unpublished cases in which these same plaintiffs had been awarded attorneys fees, without the Court's having listed the "Fogerty factors":
'The plaintiffs stress that they "they are not aware of a single reported decision where a Court has found none of the Fogerty factors but still awarded fees ... ." See Plaintiffs' Reply in Further Support of Their Motion for Reconsideration of this Court's Feb. 6,2007 Order at p. 3, (emphasis in original). The Court has made no effort to canvass all such cases. Its cursory research has, however, uncovered a number of unpublished cases where courts granted record company plaintiffs, including several of the plaintiffs herein, awards of attorneys' fees without so much as a passing mention of Fogerty or its factors. See e.g, Capitol Records, Inc. v. Lyons, 2004 WL 1732324 (N.D. Tex.); Elektra Entertainment Group. Inc. v. Bryant, 2004 WL 783 123 (C.D. Cal.); UMG Recordings, Inc. v. Davito, 2005 WL 3776349 (N.D. Ind.).The Judge labeled as "disingenuous" the RIAA's contention that had it not moved to dismiss the case, it could have proved secondary liability on defendant's part:
The plaintiffs assert that had the case continued, they would have proved their secondaryThe Court also rejected the RIAA's statements about the settlement history of the case as being simply "not true":
liability claims. Specifically, they contend they would have been able to show that the defendant knew or "should have known" that her Internet account was being used by a member of her household to infringe the plaintiffs' copyrights. That may be so. The plaintiffs, however, chose not to pursue the claim. The Court finds disingenuous the plaintiffs' assertion that "had they been given an opportunity, they would have been able to prove vicarious infringement." The plaintiffs were in no way deprived of an opportunity to prove their allegations. They moved, voluntarily, to dismiss their claims after the defendant had already made a substantial investment toward defending against those claims.
The plaintiffs contend that beginning on April 21,2005, they gave the defendant "repeated opportunities to end this litigation without paying anything." Of course, that is not true. By the time the plaintiffs offered to dismiss their claims against the defendant, she had made a considerable litigation investment, and would have been required to pay those expenses already incurred. Furthermore, the plaintiffs offered merely to dismiss their claims without prejudice, thus leaving the defendant exposed to continued litigation in the matter. The plaintiffs also persist in conflating the defendant's daughter's infringement with liability on the part of the defendant. While the plaintiffs obtained a default judgment against the daughter, there has never been any finding of liability on the part of the defendant. On the contrary, she prevailed against the plaintiffs' claims.April 23, 2007, Decision and Order Denying RIAA Reconsideration Motion*
For those of you interested in reading more from the United States Supreme Court's decision in Fogerty v. Fantasy, quoted by Judge West:
The primary objective of the Copyright Act is to encourage the production of original literary, artistic, and musical expression for the good of the public.... In the copyright context, it has been noted that "[e]ntities which sue for copyright infringement as plaintiffs can run the gamut from corporate behemoths to starving artists; the same is true of prospective copyright infringement defendants." ......
While it is true that one of the goals of the Copyright Act is to discourage infringement, it is by no means the only goal of that Act. In the first place, it is by no means always the case that the plaintiff in an infringement action is the only holder of a copyright; often times, defendants hold copyrights too.....
More importantly, the policies served by the Copyright Act are more complex, more measured, than simply maximizing the number of meritorious suits for copyright infringement. The Constitution grants to Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U. S. Const., Art. I, § 8, cl. 8. We have often recognized the monopoly privileges that Congress has authorized, while "intended to motivate the creative activity of authors and inventors by the provision of a special reward," are limited in nature and must ultimately serve the public good. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). For example, in Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975), we discussed the policies underlying the 1909 Copyright Act as follows:
"The limited scope of the copyright holder's statutory monopoly . . . reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an `author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good." .....
We reiterated this theme in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349-350 (1991), where we said:
"The primary objective of copyright is not to reward the labor of authors, but `[t]o promote the Progress of Science and useful Arts.' To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work." .......
Because copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. To that end, defendants who seek to advance a variety of meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious claims of infringement. In the case before us, the successful defense of "The Old Man Down the Road" increased public exposure to a musical work that could, as a result, lead to further creative pieces. Thus a successful defense of a copyright infringement action may further the policies of the Copyright Act every bit as much as a successful prosecution of an infringement claim by the holder of a copyright.
Ms. Foster is represented by Marilyn Barringer-Thomson of Oklahoma City, Oklahoma.
* Document published online at Internet Law & Regulation
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