Saturday, September 22, 2007

Tanya Andersen's Motion for Attorneys Fees Granted by Magistrate: "these plaintiffs ... should be deterred"

Tanya Andersen's attorneys fees motion in Atlantic v. Andersen has been granted by the Magistrate Judge to whom the question was referred. U.S. Magistrate Judge Donald C. Ashmanskas issued a 15-page decision in which he ruled as follows:

defendant incurred substantial fees before the claims against her were dismissed, including those incurred to file her motion for summary judgment and to respond to a motion to dismiss her counterclaims with prejudice. During that time, plaintiffs were either unable to obtain, or chose not to produce, significant evidence to support their claims.....when plaintiffs dismissed their claims in June 2007, they apparently had no more material evidence to support their claims than they did when they first contacted defendant in February 2005.....

Whatever plaintiffs' reasons for the manner in which they have prosecuted this case, it does not appear to be justified as a reasonable exploration of the boundaries of copyright law..... In this case, plaintiffs dismissed their claims before any rulings on any significant legal issues under the Copyright Act, or the factual issues associated with plaintiffs' claim. Choosing that course, on this record, should be deterred in light of its potential chilling effect on the public's access to creative works. If this were to become a more typical course in prosecuting the type of allegations faced by defendant, it is reasonably foreseeable that members of the public would be more hesitant to use the Internet to share creative works in general, regardless of whether their specific conduct violated copyright law or occupied an area yet to be addressed by copyright law.

Copyright holders generally, and these plaintiffs specifically, should be deterred from prosecuting infringement claims as plaintiffs did in this case. Plaintiffs exerted a significant amount of control over the course of discovery, repeatedly and successfully seeking the court's assistance through an unusually extended and contentious period of discovery disputes. Nonetheless, after ample opportunity to develop their claims, they dismissed them at the point they were required to produce evidence for the court's consideration of the merits..... this case provides too little assurance that a prosecuting party won't deem an infringement claim unsupportable until after the prevailing defendant has been forced to mount a considerable defense, and undergo all that entails, including the incurring of substantial attorney fees.
The parties will be afforded an opportunity to file objections to the Magistrate's report, after which time it will be submitted to the District Judge for finalization.

Decision of Magistrate Judge Granting Defendant's Attorneys Fees Motion*

* 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




19 comments:

bbsux said...

RIAA: (Sounding like a child) They stole from me!

Judge: (Stern parent) ::Smacks RIAA's head:: You had two years to prove it, and couldn't. ::Smacks them again:: Pay for your mistake!

RIAA: ::Stomps like a child having a tantrum:: NO NO NO NO.

ryan said...

Sounds like a useful judgment to cite for those folks that are defending against a motion to dismiss a counterclaim for non-infringement. I assume it's easier to argue something when at least one Judge out there formally agrees :)

pepper said...

It appears that more and more judges are really seeing the reality behind the riaa's frivolity..that they really, seriously have no case! Point taken as this judge stated that whenever they have been actually asked to provide true evidence, they cut and run.....we'll see where this one takes them..hopefully to more lost "wages" for the riaa. And congrats to Tanya!

AMD FanBoi said...

Choosing that course, on this record, should be deterred in light of its potential chilling effect on the public's access to creative works. If this were to become a more typical course in prosecuting the type of allegations faced by defendant, it is reasonably foreseeable that members of the public would be more hesitant to use the Internet to share creative works in general, regardless of whether their specific conduct violated copyright law or occupied an area yet to be addressed by copyright law.

This is, without a doubt, the worst of all possible outcomes for the RIAA Plaintiffs, baring the loss of their copyrights altogether.

The RIAA has made it clear that they don't want anyone to ever believe any music is ever free, public domain, uncopyrighted, free to be redistributed, or ever allowed to be shared over the Internet. This decision today goes against everything they hold near and dear to their cold little hearts.

AMD FanBoi said...

pepper,

I agree with you 100%.

The only sad part is that the initial Defendants never had the luxury of being able to point to this absolute "pattern" of RIAA litigation behavior. They paid the price for the legal system taking to so long to catch on, despite the fact that they too were sued under the very same "boilerplate" cases.

StephenH said...

This shows just how unreliable the MediaSentry "investigations" are. I beleive the RIAA targeted an innocent victim, and now has to pay the price of their legal actions. They caused a lot of harm to Tanya Andersen and accused her of doing something she did not do, and repeatly ignored offers of forensic investigation. As such, I beleive that ordering the RIAA and its member labels to pay the attorneys fees is the right decision, which follows the lead of Capitol v Foster.

I just can't wait to see what the RIAA will do if her class action suit against them is not dismissed. I hope that the judge in that case follows UMG v Del Cid, as some of the class action claims are indentical.

Ray Beckerman said...

amd

You have totally misread the statement on page 7 of the decision.

The judge did not say what you said he said.

He said that he cannot determine the question of whether the mere bringing of the case was in itself frivolous because there is inadequate evidence in the record on that issue.

Please be more careful.

Matt Fitzpatrick said...

Although this ruling takes no position on whether the RIAA's case was frivolous from the start, this isn't the end of the line for that theory.

Andersen's counterclaims (for which she's seeking class action certification) are still alive, including a claim for malicious prosecution. Specifically, she alleges that the RIAA "[knew] that their faulty and illegal investigation protocol did not give rise to probable cause for commencing and then continuing civil litigation" (Amended Complaint). Unless this claim is dismissed, she will be entitled to discovery on this allegation.

mhoyes62 said...

Ray,

I agree that I don't think these were brought as frivolous cases, just very weak cases. After the media sentry data was brought into question however, I don't understand why they have not been forced to change how they research the problem, and be made to present more compelling evidence. How are they able to continue to file statements saying that a particular John Doe with an IP address performed the actions attributed, when they have been given ample evidence that the IP address in question is not a uniquely identifying method?

Michael

Ray Beckerman said...

Let me make something clear.

The term "frivolous" is a "term of art". I.e., it is not just what you and I think of as being frivolous, gnerically. It has a very specific legal meaning. If you want to understand its meaning you need to read Fed. R. Civ. P. 11, and then read a lot of caselaw.

A finding of frivolousness has very severe consequences, not only because the attorneys can be fined, but because it becomes a permanent stain on their record. When an attorney fills out an application, as for example admission to a court in which he or she hasn't practiced before, the application usually asks if the attorney has ever been sanctioned.

It is very rare for a judge to find that something is frivolous within the meaning of Rule 11. The judge might think it was stupid, lame, wrongheaded, absurd, 'untested', or 'marginal' (the last 2 words being taken from Judge West's decision in Capitol v. Foster).... and indeed in his heart of hearts he or she may even feel that it really was frivolous.... and still hold that it was not frivolous.

Personally, were I a judge, I would probably be quicker on the trigger, because I get sick over lawyers who are willing to say and do anything their clients tell them to do, like the RIAA's lawyers, who routinely engage in conduct which I personally would call frivolous within the meaning of Rule 11. I personally would like to see a legal profession without people like that in it. But my view is not the most common view. Most judges feel well the guy is doing his job, trying to make a living, and I don't want to do anything to really hurt the lawyer's ability to live. And even I would take it very seriously, and in deciding whether to make a Rule 11 motion would be very solemn in my decisionmaking process. I have often thought of Rule 11 motions I wanted to make, but restrained myself from making. And I've actually made only a few sanctions motions in my entire career. And I believe I won each and every one of them.

But "frivolous" is a very very difficult concept. So I advise you guys to stop banging on that particular drum.

In copyright cases we don't need a finding of "frivolousness" in order to get a nice fat attorneys fee award. The Foster and Andersen cases are just the beginning.

Ray Beckerman said...

The reading comprehension level appears to be way low today; maybe too much partying over the weekend.

I just rejected comments from 2 people who read my previous comment, but didn't read it very carefully.

Let me repeat:

"Personally, were I a judge, I would probably be quicker on the trigger, because I get sick over lawyers who are willing to say and do anything their clients tell them to do, like the RIAA's lawyers, who routinely engage in conduct which I personally would call frivolous within the meaning of Rule 11."

In my personal opinion it was frivolous to commence the action.

I have yet to see the RIAA commence an action other than frivolously.

Ray Beckerman said...

I know it was OneWebDay and all, but you guys have to keep the partying under control; I need clear minds here.

recordjackethistorian said...

It is a real pleasure to read such a well thought out and clearly expressed decision. Clear logic and concise language make reading technically complex documents (Like legal decisions are) much easier for us lay people.

cheers,
davidf

Hellslam said...

Ray,
I understand that Judges are loathe to sanction lawyers, and that you yourself are reluctant to file Rule 11 motions. I wish, in both instances, that it wasn't the case. Don't get me wrong, I believe people make mistakes, and should be given the benefit of learning from those mistakes without censure in most cases. That said, those who have a pattern of improper behavior rely heavily on the goodwill of others to enable that behavior. How much politeness do these attorneys show the victims they mistakenly sue? How many women like Ms. Patterson have simply rolled over and given up their meager earnings to the RIAA, to spare themselves the financial burden and stress of mounting a long defense because a judge was too polite to put a black mark on an attorney's record?

If an attorney shows a pattern of frivolous behavior, they are likely to continue that frivolous behavior until stopped. During that period, how many lives can they affect, even destroy, that could have been spared had they been sanctioned just once.

Not saying it's your job, Ray. I read this Blog religiously, and you do great work. I just believe, in some cases, that politeness gets in the way of justice.

Ray Beckerman said...

I agree with you hellslam.

But I don't refrain out of "politeness". I refrain because I am an attorney at law representing clients. I do not exist in the abstract. I am not a free agent. I exist in the real world representing living, breathing clients.

When I believe Rule 11 has been demonstrably violated, and think it will help my client and it is in my client's best interests to make a Rule 11 motion, and my client agrees, then I will make one.

I feel a bit offended that you think I would refrain out of "politeness".

Hell said...

I didn't mean to offend you, Ray, forgive me.

My comment was aimed more towards the judges you mentioned.

Ray Beckerman said...

Thanks, hellslam... I promise I won't refrain out of "politeness".

Ray Beckerman said...

By the way, if anyone wants a refresher course on some Judges' feelings about Rule 11, review the June 29th transcript in Warner v. Cassin, where I paid a very heavy price for even bringing up the subject.

Anonymous said...

Ray, what is the status of this motion that was granted? Has Ms. Andersen's fees been paid by the RIAA or do they continue to resist?

Thanks.