Tuesday, April 24, 2007

Judge Denies RIAA "Reconsideration" Motion in Capitol v. Foster, Calls Plaintiffs' Counsel "Disingenuous", Motives "Questionable"

In Capitol v. Foster, Judge Lee R. West has reaffirmed his decision that Ms. Foster is entitled to be reimbursed by the RIAA plaintiffs for her attorneys fees, rejecting the RIAA's Motion for "Reconsideration".
Judge West emphasized the Supreme Court's holding in Fogerty that

[b]ecause copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. Thus, a defendant seeking to advance meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious infringement claims.
Judge West, in reviewing the rationale for his decision, noted that
While the Court stopped short of finding the plaintiffs' secondary copyright infringement claims frivolous or objectively unreasonable, it did find that such claims were "untested and marginal." While the Court did not find the plaintiffs' motives were necessarily improper, it did find those motives to be questionable in light of the facts of the case.
He further held that
contrary to the plaintiffs' assertion, the Court did conclude that the Fogertv factor regarding the need for compensating the prevailing party under the particular circumstances of the case was, in fact, met. The Court noted that where, as here, the prevailing party is the defendant who, by definition, receives no award for damages at the successful conclusion of a meritorious defense, considerations of compensation become particularly important.
In response to the RIAA's argument that their research had turned up no reported cases in which a Court had awarded fees but not listed the "Fogerty factors", the Judge pointed out to the RIAA that his research had turned up a number of unpublished cases in which these same plaintiffs had been awarded attorneys fees, without the Court's having listed the "Fogerty factors":
'The plaintiffs stress that they "they are not aware of a single reported decision where a Court has found none of the Fogerty factors but still awarded fees ... ." See Plaintiffs' Reply in Further Support of Their Motion for Reconsideration of this Court's Feb. 6,2007 Order at p. 3, (emphasis in original). The Court has made no effort to canvass all such cases. Its cursory research has, however, uncovered a number of unpublished cases where courts granted record company plaintiffs, including several of the plaintiffs herein, awards of attorneys' fees without so much as a passing mention of Fogerty or its factors. See e.g, Capitol Records, Inc. v. Lyons, 2004 WL 1732324 (N.D. Tex.); Elektra Entertainment Group. Inc. v. Bryant, 2004 WL 783 123 (C.D. Cal.); UMG Recordings, Inc. v. Davito, 2005 WL 3776349 (N.D. Ind.).
The Judge labeled as "disingenuous" the RIAA's contention that had it not moved to dismiss the case, it could have proved secondary liability on defendant's part:
The plaintiffs assert that had the case continued, they would have proved their secondary
liability claims. Specifically, they contend they would have been able to show that the defendant knew or "should have known" that her Internet account was being used by a member of her household to infringe the plaintiffs' copyrights. That may be so. The plaintiffs, however, chose not to pursue the claim. The Court finds disingenuous the plaintiffs' assertion that "had they been given an opportunity, they would have been able to prove vicarious infringement." The plaintiffs were in no way deprived of an opportunity to prove their allegations. They moved, voluntarily, to dismiss their claims after the defendant had already made a substantial investment toward defending against those claims.
The Court also rejected the RIAA's statements about the settlement history of the case as being simply "not true":
The plaintiffs contend that beginning on April 21,2005, they gave the defendant "repeated opportunities to end this litigation without paying anything." Of course, that is not true. By the time the plaintiffs offered to dismiss their claims against the defendant, she had made a considerable litigation investment, and would have been required to pay those expenses already incurred. Furthermore, the plaintiffs offered merely to dismiss their claims without prejudice, thus leaving the defendant exposed to continued litigation in the matter. The plaintiffs also persist in conflating the defendant's daughter's infringement with liability on the part of the defendant. While the plaintiffs obtained a default judgment against the daughter, there has never been any finding of liability on the part of the defendant. On the contrary, she prevailed against the plaintiffs' claims.
April 23, 2007, Decision and Order Denying RIAA Reconsideration Motion*

For those of you interested in reading more from the United States Supreme Court's decision in Fogerty v. Fantasy, quoted by Judge West:

The primary objective of the Copyright Act is to encourage the production of original literary, artistic, and musical expression for the good of the public.... In the copyright context, it has been noted that "[e]ntities which sue for copyright infringement as plaintiffs can run the gamut from corporate behemoths to starving artists; the same is true of prospective copyright infringement defendants." ......

While it is true that one of the goals of the Copyright Act is to discourage infringement, it is by no means the only goal of that Act. In the first place, it is by no means always the case that the plaintiff in an infringement action is the only holder of a copyright; often times, defendants hold copyrights too.....

More importantly, the policies served by the Copyright Act are more complex, more measured, than simply maximizing the number of meritorious suits for copyright infringement. The Constitution grants to Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U. S. Const., Art. I, § 8, cl. 8. We have often recognized the monopoly privileges that Congress has authorized, while "intended to motivate the creative activity of authors and inventors by the provision of a special reward," are limited in nature and must ultimately serve the public good. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). For example, in Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975), we discussed the policies underlying the 1909 Copyright Act as follows:

"The limited scope of the copyright holder's statutory monopoly . . . reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an `author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good." .....

We reiterated this theme in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349-350 (1991), where we said:

"The primary objective of copyright is not to reward the labor of authors, but `[t]o promote the Progress of Science and useful Arts.' To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work." .......
Because copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. To that end, defendants who seek to advance a variety of meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious claims of infringement. In the case before us, the successful defense of "The Old Man Down the Road" increased public exposure to a musical work that could, as a result, lead to further creative pieces. Thus a successful defense of a copyright infringement action may further the policies of the Copyright Act every bit as much as a successful prosecution of an infringement claim by the holder of a copyright.

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

* Document published online at Internet Law & Regulation

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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


Alter_Fritz said...

"Of course, that is not true"

At least one judge has the guts to call those cartel guys for what they are!

A disingenuous, "not the truth"-telling, misrepresenting of what they are actually aware of, bunch of *beep*'s.

To bad it isn't possible for all the defendants that have nothing in common to ask that all their cases will be tried before this Judge West that still remembers what the purpose of copyrightlaw ultimately is, just in the same way what those plaintiffs want to do in NY before those 2 judges with totally unrelated cases.

AMD FanBoi said...

Yeah, Judge!

One way to read this is that the judge is rather pissed off with the RIAA and their tactics by now. I hope that will prove to be a correct interpretation.

Unknown said...


AMD FanBoi said...

Plaintiff's Opportunity:

Plaintiffs claimed that, had they been given the opportunity, they would have proven their claims. Perhaps the "opportunity" they intended was dismissal without prejudice (their original intent when they voluntarily filed for it), followed by the "opportunity" to come back and sue a second time, costing the defendant another $100K in legal fees as "punishment" for opposing them in the first place. They could have continued this cycle forever, until some judge put a stop to it.

So what does "conflating" mean? While one can guess by context, is there an exact legal definition?

It's nice that, in other words, the judge calls the RIAA liars.

Other great words the judge used include: "talismanic import" and "preferred incantation".

Ryan said...

On these claims I'm curious, is it nominally within the Judges authority to award a sum above that of actual legal fees? Ie is it in the realm of possible, and if it were to occur would it be too far out of normal for an appellate court to toss it?

Jadeic said...


Megan said...

conflate: to combine into one.

Basically, they've got a default against a child, and are pretending as though the parent must be involved as well.

I may be a lowly statistician, but my mother's an English teacher. ;-)

Igor said...

I don't think the judge can award punitive damages.

pepper said...


As in the riaa is always, as of late, trying to fuse, or merge family cases together, as in the mother/daughter, whoever they feel they can held made responsible for their phony balony cases.

This Judge is restoring my faith in the system.

Alter_Fritz said...

they are all refering to some strange "Fogerty".

in case you are not old enough to know CCR and you say "WTF is this Fogerty?" The internet to the rescue!
(Not to "steal" CCR music of course, but to find the ruling those lawyers/judges are refering to!!)

Fogerty v. Fantasy, Inc. (92-1750), 510 U.S. 517 (1994) <- there you go

StephenH said...

RIAA should never have assumed a 100% guility rate from their actions! These cases prove that their investigations are not 100% accurate in indentifing people, and therefore they should have to accept some defendants may win and this can be costly to the RIAA.

I wonder if RIAA will fire some of their laywers or be more careful in their investigation process as the result of losing more than $50,000 to a consumer!

AMD FanBoi said...

Hey Ray,

The RIAA wants to sue for vicarious copyright infringement, when they can't make a case for direct copyright infringement. I gather what they mean by this is that you didn't actually download the file (they call this theft, although copyright infringement may be the most accurate term, and which they really have trouble proving that downloading occurred, even if there are music files on a hard drive afterwards, since they could have come from other sources), and you didn't distribute (share the file, to the rest of us) intentionally, or otherwise. Instead, they must mean that someone else performed any downloading and/or sharing, but you vicariously benefited by listening to free, pirated music afterwards, and now you have to pay.

My question is, while there are statutory (possibly unconstitutionally harsh) penalties for downloading (which they can't prove you actually downloaded anything), which they then try to carry-over and assign to distribution (which they can't prove you "distributed" anything to anyone except to their own investigators), but what is the penalty for "vicarious infringement"? Is it statutorily the same, statutorily different, or completely up to a judge and/or jury? Where are the damages that you listened to a piece of infringing music?

I'm wondering that if the RIAA had actually won a vicarious infringement suit, what are they entitled to? If they already collect damages from the direct infringer, and the makers of the P2P software used, what are they entitled to collect vicariously, other than the legal fees that said vicarious infringer has to pay to both sides for losing? And if their actual damages are only, say, $0.70 per song, can they justify you owing them northwards of $100K dollars in legal fees to prove this?

It would be funny if they actually won such a case, and found out that they were entitled to Nothing as a result.

raybeckerman said...

sorry, amd.... didn't understand the question...

recordjackethistorian said...

Judges have considerable latitude, especially where it concerns the behaviour of trial lawyers. In this caase the judge expressed surprise that defense hadn't asked for punitive damage and added them on. "... The US Magistrate, Edmund F. Brennan, not only awards the compensation (seeming surprised that the attorney did not also seek punitive sanctions), and on his own motion ups the compensation to cover the hours Rux's attorney spent in court seeking the compensation!"

So it seems that judges can censure the actions of plaintive or defense council f they go far beyond what is considered ethical behaviour.

a.k.a. RecordJacketHistorian

Bouncer said...

Awesome, factual posts! What a lovely surprise to find intelligent discourse on such an intense and complicated subject.

Thank you!


AMD FanBoi said...


Sorry for not being clear.

When the alleged direct infringer is believed not to be the Internet account holder, but someone else among the friends or family of the account holder, the RIAA has still continued to sue the Internet account holder for secondary, vicarious, and/or contributory copyright infringement. They have argued that the primary account holder either knew, or should have known, that the copyright infringement was occurring through that Internet account.

While there is a $750.00 statutory amount per song for direct copyright infringement, what would the penalties be for someone judged guilty of secondary, contributory, or vicarious copyright infringement? Besides having their immense legal fees paid, what else could the RIAA win on those grounds?