Monday, June 09, 2008

New 7th Circuit case holding that copyright defendants are presumptively entitled to attorneys fees even where plaintiff "threw in the towel"

A new decision has been handed down by the US Court of Appeals for the Seventh Circuit, Mostly Memories v. For Your Ease, which holds that a prevailing copyright defendant is presumptively entitled to an attorneys fees award, even where the dismissal came about because the plaintiff "threw in the towel".

The Court further held that the presumption is "very strong".

Mostly Memories is consistent with Bridgeport Music v. WB Music and Riviera Distributors, Inc. v. Jones.

May 27, 2008, Decision, Mostly Memories v. For Your Ease

[Ed. note. As most of you know, this is a very important principle in the RIAA cases, since the RIAA's "throwing in the towel", and then trying to avoid paying attorneys fees, is the most common scenario in cases where the defendant refuses to pay the RIAA's extortion demand. The Mostly Memories decision is directly relevant to the appeals in Warner v. Stubbs, Lava v. Amurao, and Interscope v. Leadbetter, and to the pending "throw in the towel" motion in Elektra v. Licata. The RIAA is fond of arguing, in these "throw in the towel" cases, that the plaintiffs should not be assessed with attorneys fees for suing the wrong person.... that it was really the defendant's fault, and therefore plaintiffs' frivolous conduct wasn't really frivolous. If the rule enunciated by the Seventh Circuit, following the Supreme Court's Fogerty holding, is followed, then it just won't be an issue anymore whether the RIAA's laziness and irresponsibility is or is not sufficient to warrant attorneys fees: the attorneys fees will be awarded because the RIAA sued and lost, absent some exceptional circumstance justifying the RIAA's failure to properly investigate. That will go a long way towards stopping the RIAA from continuing to file more meritless cases. - R.B.]

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


John said...

The site with the decision seems to be down, but from the post,this sounds like good news...until they manage to slip in something contrary into law.

raybeckerman said...

Thanks, John, I clicked it and the document showed up fine.

Of course it's good news.

CodeWarrior said...

Throwing in the towel in no way means that the defendant's attorney does not need to be paid. The RIAA, if it went the other way, would most certainly demand court costs and attorneys fees.

What a hypocritical bunch.

Anonymous said...

What john said. Going to the site gives a "Microsoft OLE DB Provider for ODBC" error. Is there a mirror we can try? I'll try back later too.

Alter_Fritz said...

yeah, it seems P&F either has again(still?) some problems with their setup. or (conspiracy theory follows) RIAA members are so damn desperate nw that they have ordered the RIAA to order MediaSentry or the other buddies MediaDEfender to use their enournous networking power to sabotage P&F like MD had done to the legitimate company Revision3 a while back:

Whatever the reasons for P&F's lately problems might be (and if it is only because they use Microsoft stuff in their backend instead of proven stable open source stuff for highly critical tasks) Until further notice me thinks it is not copyrightinfrinhement when me uses a bit of space at a german provider as a mirror for those pdf' Ray puts up.
If it is non the less, just say so:

Please use only in case of P&F problems, that space has a tight monthly transfering quota (but it is free!)

Howard Knopf said...

Here's the link straight to the Seventh Circuit's web site:


raybeckerman said...

Bless you, Howard.

Anonymous said...

The list of cases you're talking about this decision affecting are all in other Circuit Courts. Is this decision from the 7th Circuit really a binding precedent on:
Warner v. Stubbs (Oklahoma City, OK) - 10th Circuit
Lava v. Amurao (White Plains, NY) - 2nd Circuit
Interscope v. Leadbetter (Seattle, WA) - 9th Circuit
Elektra v. Licata (Cincinnati, OH) - 6th Circuit

Alter_Fritz said...

what i have learned from rereading the "IANAL-Carlos" declaration, you must pay extremely attention what a lawyer (or in Carlos case someone who plays a lawyer for his buddies in RIAA) is saying exactly

Ray did not claim that this is binding precedent he said "The Mostly Memories decision is directly relevant to the appeals in[...] That's quite a difference!
So no chance for the new generation of Mr. RIAA-Richard's out there to paint this blog as "highly inaccurate" like they falsely tried before!

raybeckerman said...

The judge in Elektra v. Licata is bound by Bridgeport Music.

Obviously the 10th Circuit and 2nd Circuit are free to disagree with the 6th and 7th circuits. But they are not free to disagree with Fogerty, upon which these decisions are based. Nor are they likely to disagree, since the decisions are obviously right.

Alter_Fritz said...

P.S: not that some older generation readers or judges that are not so tech savvy mistaken me.
the above nickname for Mr Carlos Linares has nothing to do with sexual preferences.
It is just an acronym!

Igor said...

I've been waiting for a court to say this. Seems only fair!

derivative said...

Actually, that /tmp/ URL changes, and didn't work for me.

I think a more permanent one might be:


Alter_Fritz said...

derivate is correct, the old temp one does not work here any more either
The page cannot be found
The page you are looking for might have been removed, had its name changed, or is temporarily unavailable.

Please try the following:

* Make sure that the Web site address displayed in the address bar of your browser is spelled and formatted correctly.
* If you reached this page by clicking a link, contact the Web site administrator to alert them that the link is incorrectly formatted.
* Click the Back button to try another link.

Matt Fitzpatrick said...

Fixed link for Mostly Memories v. For Your Ease Only. Whew, that HTML class finally paid off.

I really respect the 7th Circuit's position on awarding costs to prevailing copyright defendants. The circuit's 2004 opinion in Assessment Technologies v. Wiredata (cited in Mostly Memories) summed it up well.

In Assessment Techs, the circuit recognized that copyright plaintiffs are "not a little guy suing a big guy... but often the reverse.... For such a suit pits a property owner against... someone who seeks... to obtain nonexclusive access to the intellectual public domain."

The circuit also recognized "that when a meritorious claim or defense is not lucrative, an award of attorneys' fees may be necessary to enable the party... to press it to a successful conclusion rather than surrender it because the cost of vindication exceeds the private benefit to the party." And, of course, defenses are never lucrative; they just get you off the hook.

Indeed, Assessment Techs covered so much familiar ground -- remarks about Goliath suing David, a marginal-but-not-quite-frivolous complaint, concerns about defendants accepting nuisance settlements because they can't afford to fight. I'd find it hard to believe any prevailing file sharing defendant in the 7th Circuit wouldn't be awarded costs.

raybeckerman said...

igor, it's been said before, see, e.g., Rivera v. Jones, Bridgeport Music v WB Music