Tuesday, July 18, 2006

RIAA Case Against Mother Dismissed With Prejudice; Court May Award Attorneys Fees Against RIAA

In Capitol Records v. Foster, in federal court in Oklahoma, a case against a mother -- whose only connection to the alleged filesharing was that she was the person who paid for the internet access -- has been dismissed with prejudice.

Faced with the mother's motion for leave to file a summary judgment motion dismissing the case against her, and awarding her attorneys fees, the RIAA made its own motion for permission to withdraw its case.

The Court granted the motion and let the RIAA drop its case.

The Court went on to hold that the defendant, Ms. Foster, is the "prevailing party" under the Copyright Act and is therefore eligible for an award of attorneys fees.

The Court then indicated that it would decide the attorneys fees award question upon receipt of a motion for attorneys fees.

July 13, 2006, Order Dismissing Case and Finding Defendant to be Eligible for Award of Attorneys Fees against Plaintiffs*

For background of the case see:
Amended Answer and Counterclaims*

* Document available online at Internet Law & Regulation

The attorney for Ms. Foster is Marilyn D. Barringer-Thomson, in Oklahoma City, Oklahoma.

Steve Gordon, a New York-based entertainment attorney, formerly in house counsel at SONY, and the author of the well known book on digital music "The Future of the Music Business", had this comment on Capitol v. Foster:

"This case demonstrates weakness in RIAA's cases in general. If they cannot back up their claims of infringement with legally required evidence, this could affect all their cases and encourage more defendants to fight back -- especially if, as in this case, the court awards attorneys fees for the defendant."

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


rmdazwdv said...

Well done! About time someone reined in these RIAA thugs. Great work guys. Hope this gets a lot of press coverage through your RSS feed.

CodeWarrior said...

It's great she is getting attorney's fees, but I think there should be a punitive action against the RIAA for filing a frivolous lawsuit.

Bacardi said...

Great information. Someone will submit this to digg and The Register for certain so I hope that your server can handle a million hits.

raybeckerman said...

Yes this is indeed good news. I hope that the judge awards Ms. Foster all of the legal costs and attorneys fees she was forced to incur in defending this frivolous lawsuit.

Name: Sally Hawkins said...

I was trying to access the order from the link on your site but there appears to be an error - the file is opening but I all I can see/print is a grey page.

great result - lets hope to see more of these!

eclectica said...

sal, you need to have the Adobe pdf reader installed on your computer.

click here for the Adobe pdf reader

raybeckerman said...


The order got "slash-dotted" last night so the server may have been having trouble keeping up with it.

Best regards


Dreddsnik said...

Read this in the Slashdot comments ...

"It's not like the RIAA was worried that this woman was going to get fees awarded and then decided to withdraw - they basically got a judgement against the woman's daughter (daughter failed to enter a response, and a default judgement was awarded). Having already 'won' their case against the daughter, they withdrew the case against the mother. There was some squabble as to exactly how that should be done, and the court found that because the action was brought under copyright acts, and the mother was the prevailing party, the mother is *eligible* for an award of fees. The court also notes, however, that "under the statute, attorney fees are not to be awarded routinely or as a matter of course." I would be very suprised if she actually gets fees paid... "

How much of this is true ?
Was there in fact a summary against the daughter, or is this just more propoganda ?

Randy Cadenhead said...

The Foster case is getting some additional net play. See http://arstechnica.com/news.ars/post/20060713-7257.html which got picked up at Redit.com.

raybeckerman said...

Hi Randy, wonderful to hear from you. Thanks for keeping up with my blog.

Dear 'dreddsnik'. That is a somewhat overly negative analysis you quoted from the slashdot commenter. The RIAA was continuing the suit against the mother for 'contributory' and 'vicarious' liability, rather than withdrawing it. But once they were faced with an impending motion by her for summary judgment and attorneys fees, they backed down, hoping to avoid an attorneys fee award. The judge ruled 'sorry, your withdrawing the case after pursuing this lady for a year and a half does NOT exempt you from liability for attorneys fees. When I get an attorneys fee motion in my hands I'm going to take a serious look at it.' As to whether the judge will or will not grant attorneys fees, that remains to be seen, but I can only say that judges usually try to discourage, rather than encourage, additional motion practice. In reading the judge's decision I didn't see any attempt at all to discourage Ms. Foster from bringing on the motion, and so I suspect that the judge is expecting to grant an attorneys fee award. The most likely scenario is that the RIAA will now reach a settlement with a gag order -- paying Ms. Foster X dollars but requiring her and her attorney to keep it secret -- in order to prevent this precedent from becoming even more perilous to their litigation juggernaut.

Dreddsnik said...

"Dear 'dreddsnik'. That is a somewhat overly negative analysis you quoted from the slashdot commenter."

I realize that.
But the RIAA hired spinmeisters
WILL be out in force in the blogosphere, the only media the don't control, trying to perform 'damage control'.

Did they, in fact, get a summary judgement against the daughter ?
I would like to read up on all of the details of this case.

raybeckerman said...

They got a default judgment against the daughter.

kmon said...

Is there any way to really enforce this judgment against the daughter? I haven't checked into the daughter's age, but I'm assuming she is under 18.

When you have a minor with no assets, what can be done to force her to pay? Can this affect her (future) credit? Jobs? Wage garnishment?

The default judgement is $750 * 10 songs listed on the exhibit, so $7500.00.

Are the parents held responsible? If so, why do you think the Fosters chose to not defend the action?

The RIAA, in at least one other case, seem quite irritated to have been forced to pay for "guardian ad litem" fees that the court insisted they pay. The judge dismissed the case(without prejudice, but alas) because the RIAA failed to submit a plan within the specified timeframe. While I'm not a mind reader, I don't think this was accidental --- it was a conscious choice by the RIAA to basically drop the case.

Ray: it seems most judges want to ignore (or dont accept, or dont understand) the clear fact that the RIAA doesn't have a single exact date/time actual instance or event of "Suzie uploaded 'U can't touch this' on March 2nd at 2:53pm to IP" I've seen cases referenced where simply making available is NOT an actual instance of infringement.

How can the courts continue to ignore this crucial lack of evidence by letting these cases proceed past the summary judgment phase?


raybeckerman said...

The daughter is not a minor.

Most likely they will not be able to collect it.

No the parents would not be responsible. If they could have been held responsible the RIAA would not havae dropped the case.

I agree with you that in Priority Records v. Brittany Chan the RIAA was just quietly giving up, having gotten itself into enough trouble in Port Huron, Michigan. (In another case there was testimony that their attorney tried to improperly influence the testimony of a teenager.).

There is a general principle in copyright law that 'making available' is not enough to make out a copyright infringement case.

I don't know of any case in which the RIAA has gotten beyond the summary judgment phase, except the BMG v. Gonzalez case where downloading was admitted.

Hopefully Capitol v. Foster will encourage more defendants to fight back, and more lawyers to jump into the fray.