Tuesday, February 06, 2007

Judge Grants Debbie Foster's Attorneys Fees Motion in Capitol v. Foster

In Capitol v. Foster, in Oklahoma, the Court has granted the defendant Debbie Foster's motion for attorneys fees to be imposed against the RIAA, and held that Ms. Foster is entitled to an award of her reasonable attorneys fees:

February 6, 2007, Order and Decision*

The exact amount of the 'reasonable' fees to be awarded has not yet been determined.

Ms. Foster had sought approximately $55,000 in her motion.

The judge also held that (a) the RIAA will be permitted to engage in discovery on the attorneys fee issue, and (b) Ms. Foster can supplement her application (i.e. seek fees for the later work, including, presumably, time spent in discovery on the 'reasonableness' issue).

Ms. Foster is represented by Marilyn Barringer-Thomson of Oklahoma City, Oklahoma.

* Document published online at Internet Law & Regulation

Commentary & discussion:

(English language)

Ars Technica
Nevada Appeal
LA Times.com

(Other languages)

Heise Online


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


Darrell Greenwood said...

John Dvorak wrote in http://tinyurl.com/yu9nnz

"I would like to finish with the marketing observation that the record industry hates. During the heyday of Napster and open free music sharing and trading, when million of people swapped songs, the CD business was booming. Once Napster was shut down, and along with it the social network of music discovery, sales began to plummet. They are still falling.

Apparently these people are clueless about their own industry and how it works. "

Maybe the if the RIAA loses more frequently like this they will gain some clue.



Alter_Fritz said...

this is absolutely great news!

Now lets hope Marilyn Barringer-Thomson will be strong enough not to accept the likely buyout offer from the dark side and that she will keep fighting for the good cause and the tiny innocent guys against the MAFIAA*


raybeckerman said...

Dear alter_fritz,

1. Don't worry about how strong Marilyn Barringer-Thomson is. She's stronger than all the bad guys put together.

2. It's not "weakness" to accept a negotiated resolution. Our court system would crumble if every issue were litigated. All the IMPORTANT issues have been litigated.

3. The big questions have been litigated. The question of the 'reasonableness' of her fees is a nickle-and-dime issue.

4. The decision of whether to accept a settlement is the decision of the CLIENT, not the ATTORNEY.

Best regards,


AMD FanBoi said...

In the other dismissals that the court looked at, Priority and Darwin in particular, attorney's fees weren't granted on the theory that the direct infringement suit against the owner of the Internet account was initially reasonable. THIS SHOULD NOT BE ALLOWED TO STAND IN ANY FUTURE CASE. Why? By now, there are many examples where the likely actual likely infringer is NOT the owner of the Internet account traced by Media Sentry. One cannot reasonably claim that the owner of the account should always be sued first without more evidence than has been provided to date. As such, EVERY claim by an innocent owner of the Internet account in question who is dismissed out of the suit later with prejudice DESERVES to have all attorney fees paid. The earlier judges in those cases were WRONG, and any future judges who make similar findings are MORE WRONG!

This best part of this decision is where the judge says to the RIAA contentions that claims under the Copyright Act are the same as claims under Rule41(a)(2): "It is not." Now those are three powerful words.

I hope no settlement ensues because that might render moot this award of attorney's fees as a precedent for other cases.

raybeckerman said...

Dear amd_fanboi

You are wrong to think that the precedential value of this holding that the defendant is entitled to her reasonable attorneys fees can in any way be diminished by the parties stipulating to a number for the attorneys fees.

It stands as powerful precedent.

It's so powerful, in fact, that you shouldn't be surprised to see the RIAA refuse a settlement, and appeal.

StephenH said...

I think this case is a very powerful decision. I think they learned their lesson that spy bots don't prove guilt, and it is an actual example of what Gary Millin said in BMG Canada v John Doe.

I the RIAA needs to understand that not guilty verdicts could be very costly in terms of awarded attorney fees. I think that Debbie Foster could be awarded here could far exceed the amount the RIAA usually recovers through Settlement Support Center.

I wonder if the RIAA plans to appeal this case. One one hand, they had a loser. On the other hand, they are gambling on a reverse, but if the appeals court uphelds this, it could potentially become a precedent. If this becomes a precedent, this could set a new test for infringement online. This new test could make RIAA have the burden of proving infringement and identifing the correct defendant shifted to the plantiffs. Obtaining such proof could prove far more costly, require a lot of forensic tests, and lead to a less than 100% guilty rate. Additionally, innocent verdicts could also be costly. As such if this verdict is upheld, the RIAA may have to rethink their strategy.

raybeckerman said...

Dear stephenh

There's no point in them appealing. The decision was right, and will be affirmed.

The only reason they would be appealing is to torture Ms. Foster and her attorney a little longer.

recordjackethistorian said...

Pamela Jones, the para-legal that writes Groklaw published the judges this judgement in its entirety as an example of the legal system doing what it is supposed to do. She comments that this is a watermark case in these proceedings because it serves notice on the big guys (the recording industry) that th courts aren't theirs to use as they please. Just to make sure that everyone read it she typed the whole document from the PDF so it is available on Groklaw as
For the Cynics, an Antidote: The Order in Capitol v. Foster