Monday, March 24, 2008

Petition for certiorari filed in Virgin v. Thompson on attorneys fees issue

In Virgin v. Thompson, the defendant has filed a petition for certiorari from the Fifth Circuit's denial of his request for attorneys fees.

Petition for certiorari*

* Document published online at Internet Law & Regulation

Commentary & discussion:
Ars Technica

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


Jadeic said...

This is an impeccably argued and calmly affirmative request for a reasonable justice in the situation that Thompson and thousands of other defendants find themselves. It seems to me that the Seventh Circuit made the correct (and timely - 2002 - considering the subsequent RIAA litigation avalanche) adjustment to the Fogerty factors. Forgive my ignorance of the US federal system but is there no internal process by which such seemingly common-sense applications of the underlying intention of Fogerty is not rolled out automatically across all Circuits? Notwithstanding, if Thompson's petition for certiorari is successful and achieves his desired outcome then there will be greater pressure to apply a similar interpretation across all Circuits.

Anything that stalls the RIAA's ability to simply walk away unscathed from any case they know they cannot win once they have inflicted sufficient punitive legal expense on the hapless defendant to act as a deterrent to others has my full support.


Anonymous said...

If Plaintiffs have the advantage in being awarded fees, then maybe innocent ISP holders should immediately sue the RIAA and it's affiliated record companies the moment they are contacted by the Settlement Support Center demanding its extortionaire payments. Then when they win they will be both the prevailing party AND the Plaintiff. This should get them their fees for certain.

I feel it would have been worthwhile to emphasize even more strongly to the Supreme Court that while the amounts are relatively small in this individual case, when multiplied by the thousands of other Defendants in similar situations, the amount of money in question is immense. That might have caught their attention more fully.

Can't any court see how Objectively Unreasonable it is to sue someone and cause them to incur legal expenses when you have NO EVIDENCE AT ALL that they were ever the actual infringer? That IS FRIVOLOUS!

This observer disagrees with the petition insomuch as the record companies SHOULD be prohibited from suing ISP accountholders when they have NO EVIDENCE against them.

Of course, if we just had a Loser Pays system, we wouldn't be arguing over precisely that, and the RIAA would have likely quit long before now – BECAUSE THEY ARE LOSERS!


Anonymous said...

When all that is required of a copyright holder
to overcome any hint of frivolousness is a subpoena requiring documents linking an IP address to a specific account holder, the ultimate burden of discovering the proper, culpable defendant shifts from the plaintiff to the innocent defendant. If the innocent defendant is not prepared to offer up the infringer hoping that the plaintiff, in return, will dismiss its case, the only other choices are to settle a claim for something that he did not do, or assert his defense at great cost with little chance of the court shifting attorney’s fees in his favor under § 505 of the Copyright Act.

If that doesn't just about sum up all of these RIAA v the People cases, I don't know what does.

Let's hope they hear this case.


Anonymous said...

Will be interesting to see whether the RIAA lawsuits are on the Supreme Court's radar at all -- and for what reasons.

As much as I'm a fan of Stevens and Ginsberg, if cert is granted, I have a feeling it will be thanks to the conservatives on the bench. They're the ones who'd want to continue the momentum from Bell Atlantic v. Twombly to discourage copy-and-paste copyright complaints.

Also eager to hear the sad, sad songs in the opposition papers. Get the violins ready for America's most litigious corporate victim. :)

Anonymous said...

I wonder what the odds of granting cert are? I mean, I *strongly* agree that they ought to, but I took a class from a guy who analyzed their decisions statistically and I remember that they don't grant cert too often. Mind you, IANAL.

While I would like them to articulate a standard whereby copyright plaintiffs, *especially* the RIAA, are presumed to be liable if their case turns out wrong, the odds I remember favor cert denied :( Though I guess they could get rid of it quickly with a one-line ruling remanding it that it might be reconsidered in the light of the rulings that held the RIAA liable.