Tuesday, June 10, 2008

Will 9th Circuit agree with 7th Circuit in "throwing in the towel" case, Interscope v. Leadbetter?

In Interscope v. Leadbetter, another "throwing in the towel" case in which the defendant's right to attorneys fees is at issue, the appeal has been fully briefed.

The Seventh Circuit has held that a copyright defendant is presumptively entitled to attorneys fees where the plaintiff voluntarily dismisses with prejudice, in Rivera v. Jones and, more recently, in Mostly Memories v. For Your Ease ("There is no question that a dismissal with prejudice makes the defendant the prevailing party for purposes of an award of attorney’s fees under § 505. Claiborne v. Wisdom, 414 F.3d 715, 719 (7th Cir. 2005). This is no less true when a case is dismissed because the plaintiff “threw in the towel”—that is, where the dismissal is on the plaintiff’s own motion. Riviera Distributors, Inc. v. Jones, 517 F.3d 926, 928 (7th Cir. 2008)")

Plaintiffs-Appellees' brief*
Defendant-Appellant's reply brief*

* Document published online at Internet Law & Regulation

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


Anonymous said...

It would probably help to know the difference between "Appellees" and "Appellate". We're not in the wonderland of Plaintiffs and Defendants any more.


raybeckerman said...

The Appellant is the Defendant Ms. Leadbetter. She is appealing from the fact that she was denied the ability to get attorneys fees.

The Appellees -- those opposing the appeal -- are the plaintiffs.

raybeckerman said...

I should have said "Plaintiffs-Appellees" and "Defendant-Appellant". Sorry. I'll know for next time.

Matt Fitzpatrick said...

The defense's theory that voluntary dismissal without prejudice still makes them a winner because the statute of limitations has expired? New, but certainly reasonable, and the circuit might go for it.

Still, I'm of the opinion that the two-dismissal theory might make for a stronger appeal.

Presumably, the RIAA previously filed and dropped a claim against Leadbetter as a Doe, before filing and dropping the same claim against her as a named individual.

IANAL, but FRCP 41(a)(1)(B) seems pretty clear: "... if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits." As I read it, the second time a plaintiff drops a claim, the defendant wins. No ifs, ands, or buts.

Anonymous said...

Matt Fitzpatrick,

You can't possibly be right. If you were you have just undermined the entire RIAA litigation strategy of filing Doe suits, dismissing them, filing individual suits for those who refuse to be extorted, and dismissing them without prejudice the moment they run into stiff opposition to avoid even the whiff of having to pay the Defendant's legal fees. Surely it couldn't be this simple for the Defense in these cases to have such a clear cut vindication in the eyes of the courts - could it?