[Infowarrior] - RIAA appeals attorneys' fees award

[Richard Forno]

 RIAA appeals attorneys' fees award

2/22/2007 10:19:33 AM, by Eric Bangeman
http://arstechnica.com/news.ars/post/20070222-8902.html

The cartel of record companies in Capitol v. Foster have filed a motion for
reconsideration of US District Court Judge Lee R. West's decision to award
the defendant Debbie Foster attorneys' fees. In it, the plaintiffs lay out
their disagreement with the judge's reasoning while taking time to point out
that the fees awarded far exceed any damages they could have recovered
should their suit have been successful.

Although the RIAA is careful to take issue with all of Judge West's
conclusions, its primary concern is his ruling on secondary infringement.

Throughout its legal attacks on file sharers, the RIAA has argued that the
owners of ISP accounts used to share copyrighted material should be held
liable, even if they had no knowledge of the alleged infringement. Judge
West called the RIAA's secondary infringement claims "untested and marginal"
in his order, a characterization the labels take issue with.

Instead, the plaintiffs argue that if the defendant has "a reason to know"
of the infringing activity, she should be held liable. The RIAA also points
to Foster's subscriber agreement with Cox Communications, her ISP, which the
RIAA says "expressly required" her to keep others using her account from
infringing copyrights.

The RIAA also bemoans what it calls the premature end of the discovery
process: "Finally, plaintiffs believe that discovery would have revealed
substantial other evidence of defendant's knowledge and material assistance
in the underlying infringements. For example, the computer may well have
been in a common area such that defendant heard music coming from the
computer when admitted infringer Amanda Foster was using it," argues the
RIAA. That's right... the RIAA is arguing that mere act of listening to
music on one's PC is evidence of copyright infringement.

Awarding attorneys' fees to Debbie Foster would do little more than reward
the defendant for choosing to "litigate long after this case should have
been dismissed," according to the motion. The record labels say that Foster
failed to take advantage of the plaintiffs' offers to "end this litigation
without paying anything." Instead, she chose to fight the lawsuit vigorously
in hopes of clearing her name completely. The RIAA also argues that should
the attorneys' fees award stand, it would deter other copyright owners from
pursuing infringement claims.

This is an important issue for the RIAA and the stakes are high. Even if the
RIAA changes its legal tactics and decides not to press secondary
infringement claims in future lawsuits, there are still numerous lawsuits
wending their way through the courts where the record labels have used the
exact same tactics seen in Capitol v. Foster. The labels recognize this,
noting that "defense counsel in other cases like this across the country are
already citing the Court's statement, albeit out of context, in an effort to
suggest that this Court has found that contributory and vicarious
infringement claims in cases like this one are not viable." Should other
courts find Judge West's reasoning applicable to their cases, the RIAA is at
risk of writing a lot of large checks, drastically tilting the risk-reward
equation in the wrong direction for them.