Recording Industry vs The People: RIAA Case Against Mother Dismissed With Prejudice; Court May Award Attorneys Fees Against RIAA

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

10 comments:

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.
~Code; July 13, 2006 at 2:38:00 PM EDT
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.; July 13, 2006 at 2:45:00 PM EDT
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.; July 13, 2006 at 4:11:00 PM EDT
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!; July 13, 2006 at 10:42:00 PM EDT
eclectica said...: sal, you need to have the Adobe pdf reader installed on your computer.

click here for the Adobe pdf reader; July 14, 2006 at 4:50:00 AM EDT
raybeckerman said...: sal

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

Best regards

Ray; July 14, 2006 at 6:38:00 AM EDT
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.; July 14, 2006 at 11:09:00 AM EDT
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.; July 14, 2006 at 11:21:00 AM EDT
raybeckerman said...: They got a default judgment against the daughter.; July 14, 2006 at 2:16:00 PM EDT
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.; July 14, 2006 at 9:28:00 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