Rolando Amurao files reply brief in Second Circuit Appeal, Lava Records v. Amurao, over attorneys fees issue

In Lava Records v. Amurao, the appeal pending in the U.S. Court of Appeals for the Second Circuit over whether defendants should be awarded attorneys fees in cases where the RIAA "throws in the towel", Mr. Amurao has filed his reply brief, pointing out to the appeals court that the RIAA -- in its brief -- had totally ignored the leading recent cases on the subject.

Mr. Amurao's brief stated:

It should be a source of concern to this Court, and to district courts everywhere, that they are being used primarily to further a public relations effort, instead of adjudicating cases and controversies properly before them in general, and advancing copyright law by encouraging creativity in particular. Powerful and wealthy litigants who bring cases primarily to intimidate innocent people (and then keep the money instead of turning it over to the people who deserve it) should not expect sympathy when they blithely walk away after doing damage, and they should be compelled to make their victims whole.

Considering that plaintiffs’ primary motivation is to frighten people, and not to recover money, it seems entirely appropriate that they should pay fees when they lose. It is that simple, because a copyright plaintiff’s motivation matters, especially if the defendant prevails. See Fogerty, supra, 510 U.S. at 535 n.19; Bond v. Blum, 317 F.3d 385 (4th Cir.2003)(valid fair use defense; fee award would deter meritless actions); Assessment Techs. of WI, LLC v. WIREdata, Inc., 350 F.3d 640, 647 (7th Cir.2003)(“for a copyright owner to use an infringement suit to obtain property protection...that copyright law clearly does not confer, hoping to force a settlement or even achieve an outright victory over an opponent that may lack the resources or the legal sophistication to resist effectively, is an abuse of process.”).

The brief also pointed out the paucity of the RIAA's evidence:

Appellees’ error is apparent from the first sentence of its statement of the case (Br. at 2): “This case arose out of the substantial copyright infringement that took place on a computer in Amurao’s home and through his Internet account.” But computers do not get sued for copyright infringement, and the mere possession of a computer and an internet account does not automatically render the person who has them liable as either a contributory or vicarious infringer, anymore than does owning a copying machine or a video cassette recorder. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) at 930.....

The brief continued:

The complaint in this action makes no mention of either contributory or vicarious infringement. It simply alleges that Mr. Amurao is the primary direct infringer (A-29). Thus, when they sued Mr. Amurao, plaintiffs made the automatic assumption that he was a direct infringer. They were completely and utterly wrong, and they, not Mr. Amurao, should bear the consequences of that error. Ultimately, what this case and the thousands of others like it are about is whether defendants should be able to level the playing field, and whether lawyers should be encouraged to defend them by the possibility of a fee if they succeed. This is the theory behind fee-shifting statutes in civil rights and other litigation where the parties are likely to be in widely disparate economic circumstances, and the public policy issues significant. It should be equally applicable here. Given the concerns 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,” Elektra v. O’Brien, 2007 ILRWeb (P&F) 1555 (C.D.Cal., March 2, 2007)(copy annexed), there is only one way to address those concerns and to remedy that enormous imbalance, and that is to award fees to prevailing defendants, almost as a matter of course, as is already done in the First, Sixth and Seventh Circuits. This Court, as “the nation’s premier copyright court” (Gracen v. Bradford Exch., 698 F.2d 300, 305 [7th Cir. 1983][Posner, J.]) should adopt this view.

The case is likely to be argued in November or in early December. We will post the argument date as soon as it becomes available.

Defendant-Appellant's Reply Brief

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