Recording Industry vs The People: Judge Awards $68,685.23 in Attorneys Fees Against RIAA in Capitol v. Foster

Monday, July 16, 2007

Judge Awards $68,685.23 in Attorneys Fees Against RIAA in Capitol v. Foster

In Capitol v. Foster, in Oklahoma, the Court has order the RIAA to pay the defendant Debbie Foster $68,685.23 in attorneys rees and costs.

This is the first attorneys fee award, of which we are aware, against the RIAA.

Ms. Foster was represented by Marilyn Barringer-Thomson of Oklahoma City, Oklahoma.

July 16, 2007, Order and Decision Directing RIAA to Pay $68,685.23 in Attorneys Fees*

Related stories:

-RIAA "Reconsideration" Motion and "Reasonableness Inquiry" Cause Capitol v. Foster Fees to Double From $55k to $114k
-Judge Denies RIAA "Reconsideration" Motion in Capitol v. Foster, Calls Plaintiffs' Counsel "Disingenuous", Motives "Questionable"
-In Capitol v. Foster, Court Directs RIAA to Turn Over Attorney Billing Records to Ms. Foster's Lawyer, Rules that Documents Are Confidential
-Judge Grants Debbie Foster's Attorneys Fees Motion in Capitol v. Foster

* Document published online at Internet Law & Regulation

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

14 comments:

pepper said...: Is this a good settlement? Does this cover her expenses?; July 16, 2007 at 8:52:00 PM EDT
raybeckerman said...: Personally I think it was way too low.; July 16, 2007 at 8:53:00 PM EDT
AMD FanBoi said...: What I observed is that the judge seemed to use almost any excuse to take away everything he felt he possibly could. He LOVED the RIAA expert, and DISMISSED the Defendant's expert.

Where I feel this judge is the most wrong is when he calls this "a simple case" that doesn't deserve high fees. This is, in actuality, a very novel case of the sort that has never yet gone to trial. A whole lot of original work had to happen here, and THE JUDGE IS WRONG to have said otherwise!

Can this be appealed?; July 16, 2007 at 11:40:00 PM EDT
QuantumG said...: Well, congrats anyway.

Hopefully we'll see a lot of these soon.; July 16, 2007 at 11:50:00 PM EDT
Igor said...: I don't know...I've been pretty pleased with Judge West's ruling in this case...he was thorough and fair. I was also unsure why the bill doubled for discovery on the hours.

All in all I think the last 7 days have brought 3 pieces of great news (really low judgement, denial of ex-parte subpena's, and this).

I couldn't post without mentioning how funny the "had they agreed with us that they were liable from the start they wouldn't have incurred any legal fees refuting it so they shouldn't get them reimbursed" argument is. Sometimes I wonder how these lawyers got into college, let alone law school.; July 17, 2007 at 2:53:00 AM EDT
Igor said...: Bad news from my alma mater though...only 2 students decided to fight:

http://media.www.thejusticeonline.com/media/storage/paper573/news/2007/07/12/News/Two-Students.Sued.For.Illegal.Downloading-2923248.shtml

-Igor; July 17, 2007 at 2:55:00 AM EDT
Jadeic said...: On the face of it Foster still owes her attorney the balance of $114,636.18 less $68,685.23 - please let this not be so.

This document contains detailed and complex interpretations of the rules governing the settlement of reasonable fees that go way beyond my knowledge on the subject. I simply have to accept the rulings as correct but I do agree with amd faboi that the overall vibe is one that supports the plaintiff at almost very turn. He is right too that this case involved much original work and by no means falls into the 'simple' category. I particularly take objection to the inference that runs throughout that the defendants costs would have been considerably less if she had simply rolled over and played ball with the RIAA's claims of copyright infringement.

However, methinks that this little exercise may yet come back to slap the RIAA across the face if they ever try to substantiate their own reasonable expense claims. Or perhaps more pertinently the RIAA may well use the same arguments to challenge their own attorney's bill when presented - now that would be nice. For example, although I quote a different case here, how does an apparent $375 per hour rate for counsel's travel time, in the attempt by the RIAA to bill Gustave Lindor Jr. in their contempt of court motion, sit with the ruling in this case that $175 per hour is reasonable in calculating Ms. Barringer-Thomson's expenses?

I doubt that this can be appealed after such a detailed ruling but the cynic in me suggests that it more likely that the RIAA will do the appealing against such outrageously unreasonable fees - if only to further delay actually paying out!; July 17, 2007 at 7:52:00 AM EDT
Dan Fishman said...: It's the block billing that hurt them in getting the fees that they asked for. I've never seen that hold up to significant challenge. And really, with todays billing software there's not a good excuse for it. Sucks though -- I'd like to have seen full costs awarded.

I think that the standard has been set now, and future defendants probably won't have to pay a dream team anywhere near $500/hr in legal fees to fight this. Hopefully this will make this sort of an action much easier to defend against.

I do think it's crazy that the plaintiffs claim that Ms. Foster inflated the costs by refusing to settle.; July 17, 2007 at 7:59:00 AM EDT
Unknown said...: How long before the RIAA files yet another protest to drag this thing out even more?

Foster's lawyer must have good hourly rates. I thought the fees amount seemed low.; July 17, 2007 at 11:10:00 AM EDT
Random said...: I don't think the judge favored the RIAA expert, he favored the details and precision presented in the report.

Based on what I read in the document it appears that for once, the RIAA got someone competent who did a complete and thorough analysis. On the flip side, Ms. Foster's expert was lax in his critique of billing, which made it appear to the judge to be a half-baked job.
Hey, before you go for my neck, read -> This is just what I'm interpreting from reading the document, I don't know how detailed either analysis actually was.

But I do think some of the charges were overblown. I'd hate to have to pay my lawyer $1.50 per page for printouts. A lawyer should charge a premium for their expertise, not their printer paper.

On a final note, this strikes me as absolutely amazing:
When they want money from someone, the RIAA totally ignores detailed analysis and common sense, they for the wallet and they go for it hard.

But when it's time for them to pay out, all of a sudden someone pops up who can point out every unnecessary item, every unit price that is too high.

Perhaps they should have their billing expert look at their OWN claims, and see if it's fair to ask for $700 per song plus all sorts of fees.; July 17, 2007 at 3:04:00 PM EDT
StephenH said...: This is sad. The judge did not award her full attorney costs. I find this tragic, and the RIAA should not be able to get away with this. If this is appealable, I would suggest that she appeal.; July 17, 2007 at 3:27:00 PM EDT
raybeckerman said...: Yes it was inconsistent of Judge West to call it "simple" when he himself has observed that the RIAA's legal theory was brand new and "untested".; July 21, 2007 at 12:11:00 AM EDT
raybeckerman said...: Iggy said...

I don't know...I've been pretty pleased with Judge West's ruling in this case...he was thorough and fair. I was also unsure why the bill doubled for discovery on the hours.

All in all I think the last 7 days have brought 3 pieces of great news (really low judgement, denial of ex-parte subpena's, and this).

I couldn't post without mentioning how funny the "had they agreed with us that they were liable from the start they wouldn't have incurred any legal fees refuting it so they shouldn't get them reimbursed" argument is. Sometimes I wonder how these lawyers got into college, let alone law school.

1. All in all the Capitol v. Foster case is a landmark case FOR THE DEFENDANTS.

2. Yes I agree that there's been a lot of good news lately.

3. Now if Judge Karas dismisses the complaint in Barker, and Judge Trager grants the in limine motion to exclude Jacobson, we will be at the beginning of the end of the RIAA's war of oppression.; July 21, 2007 at 12:14:00 AM EDT
raybeckerman said...: Dan said...

I do think it's crazy that the plaintiffs claim that Ms. Foster inflated the costs by refusing to settle.

They say a lot of crazy things.; July 21, 2007 at 12:16:00 AM EDT

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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