Recording Industry vs The People: Petition for certiorari filed in Virgin v. Thompson on attorneys fees issue

Monday, March 24, 2008

Petition for certiorari filed in Virgin v. Thompson on attorneys fees issue

In Virgin v. Thompson, the defendant has filed a petition for certiorari from the Fifth Circuit's denial of his request for attorneys fees.

Petition for certiorari*

* Document published online at Internet Law & Regulation

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Keywords: digital copyright law online internet 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 intellectual property

5 comments:

Jadeic said...: This is an impeccably argued and calmly affirmative request for a reasonable justice in the situation that Thompson and thousands of other defendants find themselves. It seems to me that the Seventh Circuit made the correct (and timely - 2002 - considering the subsequent RIAA litigation avalanche) adjustment to the Fogerty factors. Forgive my ignorance of the US federal system but is there no internal process by which such seemingly common-sense applications of the underlying intention of Fogerty is not rolled out automatically across all Circuits? Notwithstanding, if Thompson's petition for certiorari is successful and achieves his desired outcome then there will be greater pressure to apply a similar interpretation across all Circuits.

Anything that stalls the RIAA's ability to simply walk away unscathed from any case they know they cannot win once they have inflicted sufficient punitive legal expense on the hapless defendant to act as a deterrent to others has my full support.

Dave; March 24, 2008 at 7:14:00 PM EDT
Anonymous said...: If Plaintiffs have the advantage in being awarded fees, then maybe innocent ISP holders should immediately sue the RIAA and it's affiliated record companies the moment they are contacted by the Settlement Support Center demanding its extortionaire payments. Then when they win they will be both the prevailing party AND the Plaintiff. This should get them their fees for certain.

I feel it would have been worthwhile to emphasize even more strongly to the Supreme Court that while the amounts are relatively small in this individual case, when multiplied by the thousands of other Defendants in similar situations, the amount of money in question is immense. That might have caught their attention more fully.

Can't any court see how Objectively Unreasonable it is to sue someone and cause them to incur legal expenses when you have NO EVIDENCE AT ALL that they were ever the actual infringer? That IS FRIVOLOUS!

This observer disagrees with the petition insomuch as the record companies SHOULD be prohibited from suing ISP accountholders when they have NO EVIDENCE against them.

Of course, if we just had a Loser Pays system, we wouldn't be arguing over precisely that, and the RIAA would have likely quit long before now – BECAUSE THEY ARE LOSERS!

XK-E; March 25, 2008 at 2:39:00 AM EDT
Anonymous said...: When all that is required of a copyright holder
to overcome any hint of frivolousness is a subpoena requiring documents linking an IP address to a specific account holder, the ultimate burden of discovering the proper, culpable defendant shifts from the plaintiff to the innocent defendant. If the innocent defendant is not prepared to offer up the infringer hoping that the plaintiff, in return, will dismiss its case, the only other choices are to settle a claim for something that he did not do, or assert his defense at great cost with little chance of the court shifting attorney’s fees in his favor under § 505 of the Copyright Act.

If that doesn't just about sum up all of these RIAA v the People cases, I don't know what does.

Let's hope they hear this case.

Q; March 25, 2008 at 10:19:00 AM EDT
Anonymous said...: Will be interesting to see whether the RIAA lawsuits are on the Supreme Court's radar at all -- and for what reasons.

As much as I'm a fan of Stevens and Ginsberg, if cert is granted, I have a feeling it will be thanks to the conservatives on the bench. They're the ones who'd want to continue the momentum from Bell Atlantic v. Twombly to discourage copy-and-paste copyright complaints.

Also eager to hear the sad, sad songs in the opposition papers. Get the violins ready for America's most litigious corporate victim. :); March 25, 2008 at 10:22:00 AM EDT
Anonymous said...: I wonder what the odds of granting cert are? I mean, I *strongly* agree that they ought to, but I took a class from a guy who analyzed their decisions statistically and I remember that they don't grant cert too often. Mind you, IANAL.

While I would like them to articulate a standard whereby copyright plaintiffs, *especially* the RIAA, are presumed to be liable if their case turns out wrong, the odds I remember favor cert denied :( Though I guess they could get rid of it quickly with a one-line ruling remanding it that it might be reconsidered in the light of the rulings that held the RIAA liable.; March 25, 2008 at 8:37:00 PM 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