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SCOTUS Asked To Decide On Legal Fees In RIAA Cases

kdawson posted more than 6 years ago | from the old-fogerty dept.

The Courts 164

Fogerty's ghost notes that the Supreme Court has been asked to decide whether exonerated RIAA defendants should automatically be awarded attorneys' fees. Texas resident Cliff Thompson was sued by the RIAA, which subsequently dropped its copyright infringement lawsuit after it determined that his adult daughter was the culprit. Thompson was denied attorneys' fees by the district and appeals courts and is asking the Supreme Court to weigh in on the matter. "In the petition for certiorari filed with the Supreme Court, Thompson's attorney Ted Lee lays out the RIAA's legal strategy and notes what he describes as the 'inherent unfairness' of the lawsuits... The fight between the RIAA and alleged copyright infringers is inherently unbalanced due to the vast financial resources available to the record labels. The risk-reward ratio for defendants is seriously out of kilter, and mandating that a successful defense — even if it comes from the RIAA's decision to voluntarily dismiss a case — results in the record labels picking up the tab would even things out."

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No need to worry (0, Offtopic)

CRCulver (715279) | more than 6 years ago | (#22860574)

I met this dude on Soulseek who says he's David Souter, so I'm sure the supremes will rule fairly.

Shouldnt RIAA also pay for the every letter (0, Troll)

poeidon1 (767457) | more than 6 years ago | (#22860642)

they send for every IP address. Lets see how long does it take them to get bankrupt

Re:Shouldnt RIAA also pay for the every letter (1, Troll)

explosivejared (1186049) | more than 6 years ago | (#22860726)

Hmmmm... let's see. Producing crappy music, rampant file sharing and piracy, exorbitant prices for music, and the healthy and growing independent production of music couldn't bankrupt them. However, somehow stationery is going to bankrupt them? Sounds solid!

Question (4, Interesting)

Oxy the moron (770724) | more than 6 years ago | (#22860652)

Any /. lawyers care to explain why the defendants would be unable to collect for legal fees on these lawsuits? I'm not terribly versed in how this legal stuff works, but I was of the understanding that in any case, if I am wrongfully taken to court, I am allowed to counter-sue for legal fees. I thought that was part of the balance that kept people from suing just for fun with no repercussion.

What is the difference with these lawsuits the RIAA is bringing?

Re:Question (4, Informative)

toleraen (831634) | more than 6 years ago | (#22860684)

They don't want to have to counter sue, they want attorney fees automatically granted when the RIAA drops the lawsuit since the dependent technically won the case.

Re:Question (1)

Oxy the moron (770724) | more than 6 years ago | (#22860774)

Okay, that makes sense.

My follow-up question then is... are there other examples in case law where the defendant has been awarded these fees outright? I was of the impression that you always had to counter-sue for legal fees if you wanted them.

Re:Question (4, Informative)

toleraen (831634) | more than 6 years ago | (#22860844)

Yes, this is why they are asking for SCOTUS to get involved. Different courts are citing Fogerty v. Fantasy Inc differently, and if I'm reading the article correctly, the courts are determining that RIAAs lawsuits are not considered frivolous, so no attorney fees should be given to the defendant.

Re:Question (4, Interesting)

Sancho (17056) | more than 6 years ago | (#22861574)

I think that it's unlikely that the SCOTUS will even hear the case. If they do, I think that they're not likely to rule in favor of automatic attorney fees.

Like it or not, the RIAA is handling things almost exactly as Congress intended in these matters, and more or less as well as they could handle filing these lawsuits. The only possible frivolity I can see is in filing lawsuits over file sharing in the first place, and any court which rules this way will fundamentally change copyright forever. With this conservative court, I don't expect this to happen.

Re:Question (2, Insightful)

esocid (946821) | more than 6 years ago | (#22861400)

since the dependent technically won the case.
I see what you did there. Clever.

Re:Question (1)

MrMonroe (1194387) | more than 6 years ago | (#22862478)

This SHOULD be irrelevant, however, as everyone has the right to free legal defense from the public defender if they cannot afford it on their own. Plenty of cases are pursued by rich plaintiffs against relatively poor defendants, and the spirit of the Constitution discourages giving special treatment to anyone.

Re:Question (1)

sleigher (961421) | more than 6 years ago | (#22860798)

Does anyone remember when DirecTV was on their suing spree across America. Were defendants who won their cases awarded attorney fees? i ask because would that not be some sort of precedent?

Re:Question (3, Interesting)

Raul654 (453029) | more than 6 years ago | (#22860854)

As I understand it, you can counter-sue, but that involves a great deal of additional cost. A judge can, of his own volition, order one side to pay the other side's fees, but (paraphrasing PJ from Groklaw) they usually only do that when one side was really, really wrong and the judge wants to teach them a lesson.

Re:Question (1)

Mathinker (909784) | more than 6 years ago | (#22861074)

I have a vague memory of a case documented (on Slashdot?) where the judge ordered the frivolous side's lawyers to pay a fine for wasting the legal system's time. I suppose that's not particularly common, though.

Re:Question (3, Insightful)

Dachannien (617929) | more than 6 years ago | (#22860928)

What I don't get is that the federal copyright statutes make explicit provisions for granting attorney's fees and court costs to the prevailing party, but it's still apparently like pulling teeth to get the courts to go along with it. If Congress didn't intend for people to actually be able to claim compensation when they win after suing/being sued, why did they put it in the statute?

Re:Question (0, Funny)

Anonymous Coward | more than 6 years ago | (#22861130)

If Congress didn't intend for people to actually be able to claim compensation when they win after suing/being sued, why did they put it in the statute?

Because the USA has so many leeches (i mean lawyers) that they needed to find more work for them. They can get a good 20-25 years of extra work for thousands of leeches (I mean lawyers.. its so easy to get those confused) out of a few lines of ambiguous law.

Re:Question (0, Flamebait)

BoomerSooner (308737) | more than 6 years ago | (#22861704)

Judges are lazy assholes for the most part.

Re:Question (4, Informative)

cfulmer (3166) | more than 6 years ago | (#22861030)

In a typical lawsuit in the US, each side generally pays its own attorneys fees, regardless of who wins. A court may award court costs, but those are usually quite small relative to attorneys fees. In frivolous cases, attorneys fees are also sometimes awarded.

In a copyright case, however, the rules are a bit different -- a judge in a copyright case can award attorneys fees to the "prevailing party." So, that brings up all sorts of questions around what "prevailing party" means, which is probably what this case is about. (I'm not familiar with the case.)

In any case, the fact that they applied for certiorari is really a non-event: it happens to thousands of such cases every year, and the Supreme Court only grants review of a small portion of them. The fact that the Appeals Court denied the appeal doesn't bode well.

Re:Question (3, Informative)

Atlantis-Rising (857278) | more than 6 years ago | (#22862022)

If I recall correctly, there are some seven or eight thousand requests for Certiorari from the Supreme Court every year and they grant about 100 or so.

Re:Question (4, Informative)

The Empiricist (854346) | more than 6 years ago | (#22861048)

Any /. lawyers care to explain why the defendants would be unable to collect for legal fees on these lawsuits? I'm not terribly versed in how this legal stuff works, but I was of the understanding that in any case, if I am wrongfully taken to court, I am allowed to counter-sue for legal fees. I thought that was part of the balance that kept people from suing just for fun with no repercussion.

Since you specifically asked for /. lawyers, I'll point out that IANAL and even if I was one, I do not represent /. (or you).

The default rule for civil suits in the United States is that both parties pay for their own representation. The copyright statute provides an exception to this rule in 17 U.S.C. 505:

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs.

The right to request a reasonable attorney's fee is subject to registration of the copyright (See 35 U.S.C. 412).

Courts have read into Section 505 a right for defendants to request a reasonable attorney's fee too. But it's not in the copyright code itself.

Attorneys' fees are not the only way to deter or mitigate the costs of frivolous lawsuits. Lawyers can be held accountable for bringing suits where the lawyers do not believe a reasonable basis for filing suit exists. It is also possible to minimize the cost of an action by providing all of the facts upfront and requesting summary judgment (suits where parties fight to withhold information can become very expensive).

The Open Source Software Community may not want the law to favor automatically granting a reasonable attorney's fee to copyright defendants. Imagine trying to enforce the GPL if the courts are highly likely to impose $50,000+ in reasonable attorney's fees on the OSS coders trying to enforce their rights if the suit fails. The OSS Community really should really support leaving much of the decision to the discretion of the district court judges.

IANAL, but I took a class on this. (2, Informative)

Xenographic (557057) | more than 6 years ago | (#22861398)

My understanding is that the prevailing party gets fees awarded in copyright cases. The question is whether one "prevails" if the other side withdraws their lawsuit. IMHO, yes, but that's a personal opinion I'm not basing on any law.

Given that they're appealing to the Supreme Court, it would seem that they lost on that issue during appeals (i.e. the first court gave them fees, the RIAA appealed and won, now they're asking the Supreme Court to step in). The problem is that the Supreme Court has VERY limited jurisdiction (which is spelled out in the Constitution) and doesn't have to listen to any other cases if they don't want to. So people ask them to grant cert (even lawyers hate spelling certiorari out) and listen to their case.

They overwhelmingly reject petitions to grant cert. They generally only step in when they're convinced that one of the following apply:
A) It's really important to them (e.g. Florida recounts in 2000)
B) There's been a circuit split, so half the country is interpreting the law differently.
C) They want to articulate a new standard in law (e.g. Ring v. Arizona).

They vote on whether or not to grant cert, I believe it's 4 of the 9 who have to approve it before they'll hear the case. By and large, they overturn most of the rulings they hear, or else they send them back to the lower court with instructions. There wouldn't be much point, otherwise, because if the rulings were fine, they'd remain intact if the Supreme Court ignored them, and they have too many cases to waste time.

I should also mention that they may just take a case, then publish a written opinion based on the paperwork they see from the lower courts. They don't even have to let you argue, although they do have oral arguments often enough. And those are basically free-for-alls where the Justices pepper you with questions. It's nothing like a regular trial.

So I have three points:
A) Don't expect them to grant cert (the RIAA has probably already won this one, the bastards).
B) If cert is granted, expect them to lose. I doubt they'll argue it, but who knows? They can do almost anything they want.
C) This is not the start of a loser-pays system. We already award court costs & attorney's fees (those are two different things) on a case-by-case basis. At most, this would make fee recovery automatic only in copyright cases. Personally, that makes sense to me. If you don't know whose copyright it is, don't sue. See also: SCO v. IBM ...

Answer from a copyright attorney (3, Informative)

Anonymous Coward | more than 6 years ago | (#22861406)

Attorneys fees in copyright cases can be, **but do not have to be**, awarded to the "prevailing party." See 17 USC 505. This is different from most cases under US law, in which a prevailing defendant typically isn't entitled to seek a fee award. (BTW, if a copyright plaintiff did not have timely registration of its copyrights, it cannot get attorneys fees even if it prevails. See 17 USC 412) Contrary to some of the comments (which I strongly suspect are not from attorneys, much less copyright specialists), you do *not* have to file a counterclaim in order to get fees as a prevailing defendant in a copyright case: you merely file a fee application seeking fees and costs at the end of the case, and the court rules on it as they would any motion.

The law is very well-settled that the decision to award attorneys fees in a copyright case is a matter committed to the sound discretion of the district court -- which is lawspeak for "whatever the trial court decides is going to hold up on appeal except in very rare situations." I read the chances of Los Supremos granting cert on this one as between extremely slim and none, and the chances of them granting cert and holding that a prevailing defendant -- even one who prevails against the RIAA -- **automatically** getting fees to be absolutely zero. It's just not gonna happen, folks.

As a matter of policy, *should* prevailing defendants be automatically entitled to fees in copyright cases? Perhaps. However, given the clear language of section 505, if you think that should be the law, you need to be petitioning Congress, not the Supreme Court.

why granting legal fees is tricky. (5, Interesting)

jrboatright (843291) | more than 6 years ago | (#22862240)

In general, the idea of granting legal fees to the winner is something that is a tricky balancing act for fairness.

Most of the time, the person filing the suit should not get their legal fees, because most of the time, if the outcome isn't enough to justify the fees, why did you file in the first place? Generally, if you need to sue someone, the harm should be worth the cost to the society at large (court costs) and worth the legal fees or why did you sue?

The idea of granting fees to a winning defender is more interesting, but suffers from the problem of unequal footing. If I want to sue Microsoft or Google or Ford, they can immediately pile up bazillions of dollars of legal fees in their defense. If I lose, I lose _everything_ for the mistake of suing them. I might even be in the right, but have lost because their lawyers were better, and I would be punished for the temerity of suing.

Therefore, in the case of successfully defending against a lawsuit, the standard in the US has long been that for the defender to get their fees, they need to prove that the lawsuit was more than just wrong, but was somehow evil, that it was frivolous, or harrassing, or otherwise created with the full knowledge that it was without basis in the first place.

In the case presented here, the district court, and the appeals court both said, "The owner of the IP address is a reasonable target to sue. If you find out that he wasn't the one who infringed, well and good, we dismiss the suit, but that didn't make it frivolous."

That's not a COMPLETELY ridiculous position. Of course, we know, and the defendant claims that the RIAA makes no effort to confirm identity before it sues, and that therefore, the suit was frivolous in that sense, but on face, the idea isn't insane, only their implementation of it.

The problem is, if we change the rules so that the successful defendant AUTOMATICALLY gets their legal fees, the precedent will not be restricted to RIAA cases, and the chilling effect on consumers may well be "bad"

Most of that badness can be eliminated by a system of caps on recovered fees similar to the cap on legal fees for lawyers working on social security disability cases, but that requires legislation, and should not be put into place by an activist judiciary.

Re:why granting legal fees is tricky. (1)

TheGavster (774657) | more than 6 years ago | (#22862656)

You bring up a very good point about how automatic damages might cut the wrong way in a lot of cases. What might be interesting is some sort of penalization for pulling out of a suit early, as happened in this particular instance. Had the suit been run to completion, it might have been more definately frivolous, thus falling under existing precedent. This type of policy would also make a strategy dependent on never losing (ie, dropping any case that might fail) less tenable.

Not only should they get their legal fees... (5, Funny)

Kenja (541830) | more than 6 years ago | (#22860660)

but they should be allowed one solid punch to each of the RIAA lawyers. Above the belt if its a some what reasonable case, or bellow if its one of the "computer illiterate grandma" types.

In addition, their punch should be able to be done by a third party proxy to make sure it hurts. And thus a new service industry could be born.

Re:Not only should they get their legal fees... (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#22860720)

Cmon if you cant see how this relates to the RIAA business model then you should be modded -1 Off Topic

Re:Not only should they get their legal fees... (1)

nurb432 (527695) | more than 6 years ago | (#22862190)

This service already exits, its called vigilantism

RIAA should be liable for the messes they create (4, Insightful)

themushroom (197365) | more than 6 years ago | (#22860694)

They sent out the invitations to the party, they get to foot the bill.

This might set precident (3, Interesting)

Bryansix (761547) | more than 6 years ago | (#22860718)

This might set precident if SCOTUS rules in favor of it for the US going to a loser pays court system which I think would be a great idea.

Re:This might set precident (1)

Loconut1389 (455297) | more than 6 years ago | (#22860814)

I doubt any judge is ballsy enough to want to set that precedent- though I agree it would drastically cut down the frivolous cases. Perhaps small claims cases could be excluded, but I don't think that would be any more likely to set a precedent. IANAL- just a disillusioned member of the masses.

Re:This might set precident (0)

Anonymous Coward | more than 6 years ago | (#22861050)

IANAL, but I believe that most small claims courts require that both the plaintiff and defendant represent themselves. You may consult an attorney, but thats on your dime.

Re:This might set precident (4, Insightful)

gstoddart (321705) | more than 6 years ago | (#22860954)

This might set precident if SCOTUS rules in favor of it for the US going to a loser pays court system which I think would be a great idea.

Well, this isn't just loser pay. Hopefully it wouldn't be that broad.

But, when the RIAA has almost no evidence, sues someone, later realizes they don't have enough actual evidence, and drops the lawsuit .... one would hope that they can't just go around saying "you stole music" without any consequences whatsoever when it is realized they have neither sufficient (nor, possibly even legally admisable) evidence to support that claim.

A full on "loser pays" system is a bad. Protecting the ability to accuse anyone and try to extort a settlement out of them so they don't go bankrupt defending themselves is also bad.

So far, the RIAA has been able to file papers, drop the claim, and walk away without any pushback. That's really awful.

Cheers

Re:This might set precident (5, Insightful)

Mistlefoot (636417) | more than 6 years ago | (#22860962)

Be careful what you ask for. The current system offers checks and balances.

This prevents me from suing, say Ford, when the Explorer tips over due to wheel or balance issues. Can you imagine how scary it would be (even if you are right) knowing that should you lose, your home is lost - you pretty much take the risk of bankruptcy to pay for the defendants lawyers.

Would you sue when your implants leaked? And what if I am rear-ended in a car accident and don't feel the settlement offered is enough. I sue for what my real losses are and am not awarded more. Did I just lose? The court agrees I get "some" money but not as much as I want. Who has lost? You pretty much prevent lawsuits from happening. Frivolous lawsuits already have potential penalties. You shouldn't be punished for a legitimate lawsuit.

The lawsuit in question in the article is clearly not legitimate. They sued the wrong person and should pay but to make fundamental changes to the legal system is not "a great idea".

Re:This might set precident (4, Insightful)

moderatorrater (1095745) | more than 6 years ago | (#22861298)

Let's not forget that this would widen the gap between the representation that the rich and the poor get even more. If I sue Tylenol because they filled my children's tylenol bottle with crack and wood alcohol, they can just throw 30 lawyers on the case and laugh their asses off. If they lose, their only additional cost would be my lawyer (likely a small percentage of the cost of settlement or their own lawyers); everything else would be the same as before attorney fees were regularly awarded. However, if I lost due to some technicality, I would have to pay for 31 lawyers in what was a legitimate case to begin with.

Re:This might set precident (1)

91degrees (207121) | more than 6 years ago | (#22861504)

Loser pays is the situation in a lot of countries [reason.com] . People are still quite able to sue large companies. Litigation happens less often, but America is seen as pretty damn litigious.

The best solution is that you pay an amount based on your own legal costs. Of course, "Legal costs" would have to be the costs that can reasonably be accounted for, but that will cover a lot. Lawyers are legally obliged to keep careful track of accounts.

Re:This might set precident (0)

Anonymous Coward | more than 6 years ago | (#22861366)

Thus, the failure of ruling Corporations, entities and the like as persons rears its ugly head.

It's one thing for a single citizen to be sued by a Corporation or Association. It's is entirely DIFFERENT (see not equivalent), when a single citizen sues, or tries to sue, a Corporation.

Corporations != People

No amount of argument, example, or case law will ever change my position on this.

If you need expansion on why the above is not reciprocal, I suggest you go back to reading CNN like good sheeple!

But Europe is loser pays and none of that happens (1)

hassanchop (1261914) | more than 6 years ago | (#22861462)

http://www.pointoflaw.com/loserpays/overview.php [pointoflaw.com]
http://www.reason.com/news/show/29696.html [reason.com]

If any of what you claim in your post were true, then we wouldn't see lawsuits in "loser pays" countries (which is essentially, the whole civilized world apart from the US and a few other countries).

Since we do see lawsuits in "loser pays" countries, the only logical conclusion is that your post is incorrect about the consequences of a loser pays system.

I know that we sometimes like to argue points based on hypotheticals, as you have, but the counter to your hypotheticals is a ream of data from courts from around the world. Data > supposition, in my opinion at least.

Re:This might set precident (5, Interesting)

Will_Malverson (105796) | more than 6 years ago | (#22861532)

An idea I read once that I liked is a loser-pays, but with the caveat that the loser's liability is limited to what (s)he spent on legal fees. So, if you sue Ford and lose, you'd at worst be out the cost of your own lawsuit. If Ford wants to win by throwing lawyers at the case, they can, just like today, but it'll be on their dime, not yours.

This would also give both sides an extra incentive to keep their legal fees down, always a good thing.

Re:This might set precident (1)

LWATCDR (28044) | more than 6 years ago | (#22862494)

Yes it would have a chilling effect on law suits. That could be both good and bad like most things in life.
It might stop people from suing after they get hurt trimming their hedges with a running lawnmower. But it might also stop people from suing a big company that makes a really dangerous product.

Let's fix the real problem -- SOCIALIZE THE LAW! (2, Interesting)

FriedSpam (849215) | more than 6 years ago | (#22862574)

Our legal system is an adversarial one, which has the tendency to mean that the more you can pay for it, the more likely you are to have a much better outcome.

Why is that? Why is a fundamental right, that of equal justice, dependent upon your wealth?

People talk about making health care a fundamental right, what about taking back our fundamental rights to fair justice? Let's start making the legal system work FOR the people, instead of people subject TO the legal system.

Re:This might set precident (4, Interesting)

radarjd (931774) | more than 6 years ago | (#22861008)

This might set precident if SCOTUS rules in favor of it for the US going to a loser pays court system which I think would be a great idea.

I don't think a strict "loser pays" system is really what people want. Let's say you sue a medium to large corporation. The case is close, but you lose. The corporation could easily have huge legal expenses, even if yours are relatively minor. Would an individual (or small corporation) ever take the risk of suing a large corporation?

I realize that other countries do have loser pays systems, and it works, but I've never heard conclusively that it's better. Those countries also tend to have more active consumer protection on the part of their governments, which would make suits which are currently brought by individuals (or classes) less necessary.

I tend to think that the system that we have now is good in theory, though not so good in practice. The bar to find a suit frivolous or harassing is so high as to be practically meaningless. I think if that bar were lowered some, we'd have the system that most individuals desire.

Re:This might set precident (2, Interesting)

fredklein (532096) | more than 6 years ago | (#22861238)

I don't think a strict "loser pays" system is really what people want. Let's say you sue a medium to large corporation. The case is close, but you lose. The corporation could easily have huge legal expenses, even if yours are relatively minor. Would an individual (or small corporation) ever take the risk of suing a large corporation?

WHat about 'Loser pays the winner what the loser spent, but only up to what the winner spent'?

Sue a big corporation, you spend $1000 on a lawyer. They spend $100,000. You win, they pay you $1000. They win, you pay them $1000.

Re:This might set precident (1)

johnkoer (163434) | more than 6 years ago | (#22862398)

Maybe we could come up with a percentage based system, so the loser pays the lesser of the following:

1.)The percent of their income that is equivalent to the percent of the income that the winning party paid their lawyers.
2.)The total sum paid to the winners lawyers.

For example:

Big XYZ company paid $5M in lawyer fees, and they have an annual income of $100M.
Joe Blow paid $10k in legal fees and has an annual income of $50k.

If Big XYZ wins, Joe only has to pay 5% of his total income ($2500).
If Joe Blow wins, Big XYZ has to pay all $10k of Joe's fees.

Re:This might set precident (0)

Anonymous Coward | more than 6 years ago | (#22861082)

precedent

Re:This might set precident (1)

Bryansix (761547) | more than 6 years ago | (#22861312)

precedent
Clippy! I thought I turned you off!

Re:This might set precident (1)

plague3106 (71849) | more than 6 years ago | (#22861088)

Ya it would be great to those that say bring a lawsuit against their employer because their employer acted improperly and the employees got some life threatening illness... but lost their case for some reason.

Loser pays would ONLY discourage people from filing a case if they have no money, yet still have a legitimate case.

Standard? (3, Insightful)

Anonymous Coward | more than 6 years ago | (#22860730)

Why isn't this the standard, anyway?

I can see why people argue that having the losing side shoulder all legal fees is a bad idea (even if I'm not sure I necessarily agree), but if somebody sues YOU and then just drops the case later on before there's actually any decision, why shouldn't they be required to reimburse you for the trouble they caused you for absolutely no reason at all? I'm not talking about millions in damages, but paying your lawyer fees and so on would be the least you'd expect.

Re:Standard? (2, Funny)

sm62704 (957197) | more than 6 years ago | (#22860960)

Why isn't this the standard, anyway?

If it were, how would the multinational corporations bully people with SLAPP [wikipedia.org] suits? Can't have those pesky citizens interfering with the corporate's God given and (bought) congress' legislated right to tell the non-monied to STFU or else, now can we?

-mcgrew

Re:Standard? (2, Insightful)

moderatorrater (1095745) | more than 6 years ago | (#22861356)

Why isn't this the standard, anyway?
Because it significantly raises the potential cost of suing someone, and lawsuits are the last resort against a lot of injustice. If I'll optentially have to pay for the 30 lawyers that an insurance company can throw against me, then I won't file suit in the first place. The ideal system is to say that these fees may be awarded if the court sees that they should be, and that's the situation we're in right now.

the problem with these suits in the first place is that it's a large corporation with less to lose than individuals they're suing; the proposal to award attorney fees no matter what would only widen that gap. After all, when someone loses a case to the RIAA we don't want the defendant paying the RIAA's costs, do we?

Wonder if I could get a business patent on this??? (5, Insightful)

Gat0r30y (957941) | more than 6 years ago | (#22860736)

"There is a clear and present need for this Court's intervention and guidance on this important issue of copyright law,"
Indeed, unless they give this guy his lawyer's fees, it sets a really dangerous precedent. Namely, any old lawyer/copyright holder can just start suing assloads of folks, hoping most will just settle to avoid the cost of litigation and drop all the suits that don't get settled. There isn't any incentive for the defendant to fight back against frivolous copyright infringement lawsuits.

Excuse me? (3, Insightful)

hassanchop (1261914) | more than 6 years ago | (#22860924)

There isn't any incentive for the defendant to fight back against frivolous copyright infringement lawsuits.


I would think not paying a single red cent for something you didn't do would be quite the incentive. I must be frank, if you are right and you know it, you have a duty to fight. Rolling over because it's easy is both personally and socially irresponsible, and the fear of personal bankruptcy isn't one that would deter me. YMMV.

Re:Excuse me? (2, Insightful)

parcel (145162) | more than 6 years ago | (#22861242)

I must be frank, if you are right and you know it, you have a duty to fight. Rolling over because it's easy is both personally and socially irresponsible, and the fear of personal bankruptcy isn't one that would deter me.
And hiring a lawyer to fight a lawsuit which would be cheaper to settle is fiscally irresponsible. Not to mention, if you've got a family to support, I'd argue personally and socially irresponsible as well. Which is exactly what this is about - if the RIAA is suing you for no good reason, there should not be the fear of personal bankruptcy - because they should be forced to pay for the defense costs they have unjustly forced on you.

This is, of course, even putting aside the potential of a false conviction. But that never happens, right?

I disagree (2, Interesting)

hassanchop (1261914) | more than 6 years ago | (#22861286)

And hiring a lawyer to fight a lawsuit which would be cheaper to settle is fiscally irresponsible.


How so? I consider the protection of my reputation to be worth something. I also consider my personal freedom to be worth something. If I have the money, there's nothing "fiscally irresponsible" about using it for something I consider important.

If you were told that with 20k you could protect a large portion of the population from future abuse, would you do it? I have ot think, based on your post, you would rather pay 2k to protect yourself instead. Am I wrong?

Re:Excuse me? (0)

Anonymous Coward | more than 6 years ago | (#22861928)

Wow, people like you scare me.

"Not to mention, if you've got a family to support, I'd argue personally and socially irresponsible as well. "

If you're allowing your family to be abused by ANYONE because of your personal fear of ANYTHING, that makes you a pathetic fucking coward. When your kid, who you think you're protecting, asks you "why did you admit to doing something wrong when you didn't? Why did you LIE?" what will you say? Do you honestly think ANY discussion of your stated desire to "support" your family (in other words, money) will undo the lesson you just taught? Not bloody likely.

Money comes and goes, people like you place far too much value on the zeroes in your bank account. And just so we're clear, no court is going to punish you so severely that you're homeless and penniless. That kind of fear mongering is stupid and pointless.

You're a coward. There's nothing wrong with that, but some of us stand up for what's right so people like you CAN be cowards in private. Acting like your choice is better, even though the only reason you HAVE a choice is because of people who did stand up and fight, makes you look ridiculous.

Re:Excuse me? (2, Interesting)

SillySlashdotName (466702) | more than 6 years ago | (#22862160)

I can't agree with you. Giving in to blackmail or extortion is NEVER fiscally responsible, nor is it socially irresponsible.

If you had some guarantee you could believe that paying up this time would prevent ever having to pay up again - for any reason - it may be personally responsible, but here you have no guarantee at all, so you might have to pay out to every spammer who gets your email address - uh, I mean every lawyer who finds out about your willingness to pay rather than fight.

As I see it, in the long run the ONLY fiscally, personally, and societally responsible thing to do is fight 'to the last ditch' (or to the geeks out there, 'to the pain') if you are falsely accused rather than pay to 'make it go away'.

I do agree with you that the RIAA (actually, ANYBODY) should be held responsible for the financial burdens defending against baseless attacks imposes.

I am also for the corporate death penalty for the RIAA and others that abuse the legal system for profit. I think they should forfeit their charter, have their assets sold at public auction, and their board of directors forbiden from ever serving on another board of directors.

I also think the in-house, corporate legal shills should face a professional 'death penalty' consisting of losing their legal certification.

The problem I see is that the only one with a penalty is the defendant, the plantiff should also face penalties for stupid pet tricks, and, while lawyers may be necessary for some things, corporate lawyers for the purpose of suing the general public are almost never necessary. Give them the chance to do the right thing, but don't give them TWO chances to do the right thing.

Re:Excuse me? (3, Interesting)

smellsofbikes (890263) | more than 6 years ago | (#22862144)

While I'd like to think that many people are as stoic as you, I certainly am not: I'm within 10 years of retiring, quite early because I've spent the last 15 years putting everything I can in savings and investments rather than buying new cars. I'd sure hate to lose all that and have to work until 70. Sure, risking that is part of making the world a better place, but it's not rational to expect that most, or even many, people will bet their personal future to make the world a little tiny bit better. It's a matter of proportion: I don't drive 100 miles an hour because that has a very poor risk/reward ratio -- I endanger many people and only get where I was going a short while earlier. But, likewise, it would also be stupid for me, personally, to throw away my future to be a single data point in the fight against big corporations. I don't like saying this, but faced between surrendering, even if I was in the right, and losing everything I've worked for this last 15 years, I wouldn't even hesitate.

I would probably phrase it differently (1)

hassanchop (1261914) | more than 6 years ago | (#22862344)

But, likewise, it would also be stupid for me, personally, to throw away my future to be a single data point in the fight against big corporations.


I would call it "standing up for what is right". In that context, is it really so stupid?

I don't like saying this, but faced between surrendering, even if I was in the right, and losing everything I've worked for this last 15 years, I wouldn't even hesitate.


I understand that you're afraid, this is just a person difference between you and me. In this case, however, I have to ask, what good is money if you've sold your principles? It's possible that you could retire with a clear conscience, but I would have a very hard time living with myself knowing that I admitted guilt that didn't exist, and worse, not trying to prevent others from being similarly abused.

Again, it's simply a difference in values, you value the wealth you have and the comfort you've acquired, I view my wealth (HAH!) as a tool I use to live my life by the principles I believe in and in the manner I choose.

A serious question, what good is all that wealth if you're not willing to use it to protect yourself? Don't you see the slippery slope there?

Re:Excuse me? (1)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#22862608)

While I'd like to think that many people are as stoic as you, I certainly am not: I'm within 10 years of retiring, quite early because I've spent the last 15 years putting everything I can in savings and investments rather than buying new cars. I'd sure hate to lose all that and have to work until 70. Sure, risking that is part of making the world a better place, but it's not rational to expect that most, or even many, people will bet their personal future to make the world a little tiny bit better. It's a matter of proportion: I don't drive 100 miles an hour because that has a very poor risk/reward ratio -- I endanger many people and only get where I was going a short while earlier. But, likewise, it would also be stupid for me, personally, to throw away my future to be a single data point in the fight against big corporations. I don't like saying this, but faced between surrendering, even if I was in the right, and losing everything I've worked for this last 15 years, I wouldn't even hesitate.
While I think you have eloquently and fairly made the case for your outlook, I would rather be dead than live like that.

Re:Wonder if I could get a business patent on this (2, Interesting)

SpaceLifeForm (228190) | more than 6 years ago | (#22861086)

No, there is prior art. To wit, RIAA. The scenario you decribed is exactly what they have been doing. Most of the defendants either give in and pay the extortion fee, and the ones that don't, RIAA backs off. But, RIAA does not want to pay the legal costs of the defendants when they back off.

So, currently, it's a very effective extortion racket.

Re:Wonder if I could get a business patent on this (4, Insightful)

Gat0r30y (957941) | more than 6 years ago | (#22861236)

No, there is prior art.

This is patent law I'm talking about, prior art doesn't matter!

Re:Wonder if I could get a business patent on this (1)

kcbrown (7426) | more than 6 years ago | (#22862906)

This is patent law I'm talking about, prior art doesn't matter!

Sadly, the above is not just funny, but is also insightful, given the number of patents with prior art (some of which, if I'm not mistaken, were essentially dups of prior patents!) that the USPTO has rubber-stamped...

Still not likely to be heard by SCOTUS (3, Informative)

QCompson (675963) | more than 6 years ago | (#22860770)

These "ZOMG SCOTUS to fight RIAA in cage match!!!" articles I have seen floating around the tubes seem a bit misleading. Thousands of litigants petition the Supreme Court to grant cert every year, and the court ends up accepting only a few dozen cases.

Although a split among the circuit courts makes it more likely that the SCOTUS will grant cert, it by no means makes it a certainty.

The Loser Should Always pay (2, Insightful)

protolith (619345) | more than 6 years ago | (#22860788)

The most significant thing that would curtail frivolous lawsuits in this country would be the requirement that whoever loses a case or drops out has to pay all of the legal fees.

The only lawsuits filed would occur when the party pressing charges is sure they have a case and a significant enough chance of winning to risk it.

In the case of the RIAA they would stand to lose far more than they could gain with their extortive tactics.

Re:The Loser Should Always pay (1)

snarkh (118018) | more than 6 years ago | (#22860910)


A brilliant idea indeed! For example if you sue DELL for selling you a defective product and lose, you pay all of DELL's legal fees in the case.

Re:The Loser Should Always pay (2, Insightful)

Bloodoflethe (1058166) | more than 6 years ago | (#22860978)

It makes sense only for case droppers imo.

Re:The Loser Should Always pay (1)

snarkh (118018) | more than 6 years ago | (#22861096)


I think it is fair that the court has discretion.

Re:The Loser Should Always pay (2, Insightful)

protolith (619345) | more than 6 years ago | (#22861664)

That's not exactly how it would play out.

Most corporate lawyers try to settle on anything that holds water that is brought against the company they are representing. They typically want to prevent the precedent of rulings against them for anything that the company did wrong or illegal (or have the details of a case made public in a trial). In these situations they are already paying the claimants legal fees, so that much would be the same.

In the situations where the case is total crap and everyone involved should already know it, the corporate lawyers can say see you in court, if the claimants don't drop it right there, they are either incredibly stupid or sure enough they might have a chance that their side will win.

If this hypothetical claim against DELL regarding a defective product is a valid claim, then it would be worth going to trial as usual. If it is a borderline claim, then the risk would obviously be more significant. In the current system what's really in place to prevent a judge from siding with DELL AND Compelling the loser to pay all of DELL's legal fees for wasting their time?

The difference is that all parties would know the risk up front.

Re:The Loser Should Always pay (1)

snarkh (118018) | more than 6 years ago | (#22862786)


Well, if your claim against DELL is frivolous then the judge would be justified in making you pay DELL's legal fees.
However you may have a reasonable claim, which is just not strong enough to win in court or, for example, lose on a technicality. In that case being bankrupted by DELL's legal bills does not seem very fair.

Re:The Loser Should Always pay (2, Interesting)

camusflage (65105) | more than 6 years ago | (#22860942)

The only lawsuits filed would occur when the party pressing charges is sure they have a case and a significant enough chance of winning to risk it.

But, but, but... THAT'S UNAMURICAN! If I want to sue my neighbor for planting a tree that blocks my view of the sunrise, then I have that right, standing be damned.

There is a flip-side to this.. If I have a reasonable case (such as treating my personal information with all the due care given to a week old bag of garbage) and I sue a retailer (such as a large retailer based in Framingham MA) that exposed it (through weak wifi encryption), they could then snow me under with requests, subpoenas, depositions, etc. If I didn't have the financial resources to keep up my side of the case, I would have to drop it and suffer the double loss of having to pay for the privilege of getting boned in court.

Deciding to award attorney fees belongs solely in the hands of the court that is hearing the case. If you don't like it, appeal.

You are making a common mistake (1)

hassanchop (1261914) | more than 6 years ago | (#22861606)

You're applying some of the "American" style civil law to a "losr pays" system. Any system that went to a "loser pays" format would inevitably shift the responsibility of the court to the review of attorney's fees, in order to prevent the abuses you are concerned about.

That, in fact, is exactly what happens in most of the rest of the world, and lawsuits seem to go on just fine.

http://www.reason.com/news/show/29696.html [reason.com] [reason.com]

A common fear about loser-pays is that the side who loses a routine dispute will get handed a bill for 10,000 hours from Cravath, Swaine & Moore. But European courts are well aware of the danger that successful litigants will overinvest in their cases and gold-plate their fee requests. They carefully control the process to prevent that danger, giving the losing side a full chance to dispute a fee award, requiring that work be reasonable and necessary, providing that elite lawyer rates not be paid if a Main Street lawyer could have done the job, and so forth.


The fact that loser pays works virtually everywhere else really calls into question the validity of most anti-loser pays arguments.

Problem with that (5, Insightful)

WindBourne (631190) | more than 6 years ago | (#22860944)

If you do that, then nobody would DARE to sue IBM, MS, or whoever. MS pays their lawyers better than any other corporation in the industry. Imagine MS being able to run amoke, says that you can sue them, and of course, makes certain that your funds and lawyer's fund will give out LONG before they agree to anything. Now, you are stuck with their bill. If you are person, you just declare bankruptcy. If you are a business, MS owns you. No lawyer will take this on contigency.

Not so, not so (2, Informative)

hassanchop (1261914) | more than 6 years ago | (#22861108)

This article explains why that's not really an option

http://www.reason.com/news/show/29696.html [reason.com]

A common fear about loser-pays is that the side who loses a routine dispute will get handed a bill for 10,000 hours from Cravath, Swaine & Moore. But European courts are well aware of the danger that successful litigants will overinvest in their cases and gold-plate their fee requests. They carefully control the process to prevent that danger, giving the losing side a full chance to dispute a fee award, requiring that work be reasonable and necessary, providing that elite lawyer rates not be paid if a Main Street lawyer could have done the job, and so forth.


The court (and I'm not European, so some clarification would help) reviews the billing and allows the loser to challenge the costs. Since loser pays is prevalent in Europe, and people sue "IBM, MS, or whoever" in Europe, I'd have to say it works well enough.

Re:Not so, not so (1)

sumdumass (711423) | more than 6 years ago | (#22861632)

But that still doesn't address a reasonable fee of $300-$500 an hour with three or more lawyers charging that to defend the different aspects of the case. If your trial is particularly hard, you will have one or two weeks or more arguing alone. Let stay with one week, use 3 layers at a reasonable but low $300 and hour. That's something like 30,000 for a 5 day 8 hour trial alone. Then add prep, motions, and everything normally used to defend the charges and consider that you, the person doing the suing is doing so because someone went left of center and stuck your car putting you out of work with thousands of dollars in injuries and no car to drive and their insurance won't cover all the medical let alone missed work and all.

Now suppose the accident and resulting debt caused you to spend all your savings to stop from losing the house which your still in danger of loosing and the court decides that you lost the case because an animal ran in front of the other person and he wasn't at fault because you where stuck after he was ejected from another accident. Imagine knowing all this is possible before taking the person to court. Imagine that not only owing your lawyers a hundred thousand, you could own his lawyers the same plus all court costs and related fees on top of your no income and almost losing everything you own which is already a factor.

Looser pays is only good when something is frivolous. The situation I mentioned isn't frivolous. A loser pays system favors those rich enough to be in a position to cover the costs. It leaves the rest of us, the normal 2/3rds of America out in the cold on a lot of situations. That is how it would reduce case load, by disenfranchising the people who need it the most.

The only response I have (1)

hassanchop (1261914) | more than 6 years ago | (#22861726)

All i can say (not knowing the ins and out of the legal systems from around the world) is that "loser pays" seems to work well in most places, and the US legal system is a laughing stock and has been for years. In light of that, I have to believe that most of the objections you raised have solutions.

Ultimately, one thing certain. Loser pays exists, and the problems you expect from a loser pays system don't seem to hinder the system. Long term success is a much stronger argument than "hypothetical scenario x" in my opinion.

Re:Problem with that (1)

Ambiguous Puzuma (1134017) | more than 6 years ago | (#22862868)

Maybe the penalty for losing or dropping out of a civil lawsuit should be partly related to how many lawsuits that party initiated?

The more lawsuits you file, the greater your responsibility should be to make sure they aren't frivolous.

Re:The Loser Should Always pay (2, Insightful)

tradotto (874026) | more than 6 years ago | (#22860946)

So your saying that if you ever have to sue MS or Google or Apple or anything, for a valid patent violation and their heavy hitting lawyers win with some big money law magic now you have to pay for it? GLWT

I'm all for loser pays (1)

hassanchop (1261914) | more than 6 years ago | (#22861044)

As long as it's enacted for criminal law too.

Re:The Loser Should Always pay (1)

PotatoFarmer (1250696) | more than 6 years ago | (#22861054)

I mostly agree with that, but there would have to be some sort of logical limit. Like, say, the loser must pay the legal fees of the winner up to but not exceeding the amount paid for the loser's representation. Otherwise, any large company in danger of being sued by an individual could just make it clear that they plan on spending millions of dollars in legal fees should anyone bring suit against them.

There are still probably dozens of loopholes in the above, but I'm in favor of anything that shifts the balance more towards the little guy.

Re:The Loser Should Always pay (4, Insightful)

zappepcs (820751) | more than 6 years ago | (#22861192)

While that sounds good, in this case the RIAA didn't even know if they were suing the right person. The case was dropped when it was shown that it was not this guy doing downloading, so that essentially he is having to pay court costs to prove he wasn't guilty. A good counter suit to the tune of 3 times his costs or more should help set the right precedent. If the **AA continues to sue people without being sure they are even suing the right people, their evidence is flawed horrendously. Sure, there is some purchase here for using the probable cause phrase, but in the end they were wrong and significantly distressed and inconvenienced this guy.

Without discovery (in this case a fishing trip) the RIAA cannot even be sure if there is anyone to sue. They don't have direct evidence of copyright infringement. They don't have anything more than circumstantial evidence in most cases.

IANAL but...

If Mr X has a gun that is the same kind as used to kill Mr Y, and Mr X was in the area of the murder at the time of the murder and had previously fought with Mr Y. The bullet was too damaged to do ballistics on it. That is circumstantial evidence. Pretty good but circumstantial

If Mr X has a gun that is the same kind as used to kill Mr Y, and Mr X was in the area of the murder at the time of the murder and had previously fought with Mr Y. The bullet ballistically matched Mr X's gun. Witnesses saw them together within minutes of the estimated time of death. That is strong evidence. This is what the RIAA does not have.

Taking Mr X to trial on circumstantial evidence has a matter of risk to it. They might not be able to convince a jury that Mr X killed Mr Y. He might have a good alibi. OR They may convict him only to find out 30 years later that Mrs Y killed him with the same kind of gun.

Basically, the RIAA uses bad evidence, circumstantial evidence, and other techniques to get convictions and runs away when they think they will lose. It's a shotgun approach. Sue everyone we can, let the complainers go free.

Right now the RIAA is telling artists that they represent that there is little to nothing left of all the money they got from Napster, so the RIAA can't really give them much of the rewards for that effort. It all went to lawyers.

Add all that up and the case against the RIAA looks bad for them. They are suing the wrong people, causing harm, ruining credibility, and their efforts are not even benefiting those they represent in court. I would not call that frivolous, I'd call it malicious.

How to bring that all together in court is a problem I'm not sure how to handle though. Clearly some retribution is called for against a bully that uses the legal system to bludgeon ordinary citizens with few resources into paying them 'protection' money.

Even loser-pays has drawbacks (2, Interesting)

phorm (591458) | more than 6 years ago | (#22861318)

I live in Canada, and we have a loser-pays system. I recently moved into a house where there were lots of "hidden" issues, that - unfortunately - went beyond your standard home pre-inspection. Among them, a dryer which had a loose vent (and was venting superheated air into a nice pile of dry lint) - that you couldn't see without rearranging half the laundry room, a range-hood that had the exit-vent sealed up, and a fuse-box in which hidden under 4 of 6 fuses were nicely scorched pennies. An inspector will go over obvious things, but he generally won't pull fuses or otherwise rearrange major appliances as it can seriously disrupt the home for the current occupants.

I'm not so much pissed about the cost of repairs as the potential that these had for *killing* me, especially the fuse issue (in having the power turned off and pulling the pennies, several fuses were badly scorched on the inside, the pennies themselves had some nasty and deep burn-marked, and the fuse-box itself wasn't in great shape. It's a condo, so it doesn't even cost to have the box replaced, it's done by the condo corp so this is just pure cheapness/laziness.

I know that I can put at least one of these things against the former owner, as the nice thing about pennies is that they have dates on them (so a 2007 penny couldn't have been used in a fuse-box prior to 2007)... but what exact charges I want, or how much it costs to stick them I don't know. This is not to mention the initial legal fees that I would be burdened with in addition to the repairs I'm currently doing... and the somewhat frightening possibility that Mr do-it-yourself handyman may have other potentially deadly surprises hidden somewhere. With all this, there's still a possibility I could lose (homes are pretty much "buyer-beware" but I'm looking at something more like "negligence" or "endangerment" charges. I'd also like to make sure that Mr. Handyman doesn't kill his wife and two children in the new house by attempting more half-ass patchwork. The potential that bringing up a lawsuit would have me have to pay both my own and the defendant's legal bills is pretty frightening though... and one I'm very jittery about chancing.

In the UK (0)

Anonymous Coward | more than 6 years ago | (#22862468)

If you move in to a property, you have (I think) three months to raise any issues with the house you purchased. Any issues likely to have been extant when the purchase was made is still the problem of the seller.

I suspect you have the same system there, though you'd not find out about it easily.

And it's probably too late for you now.

Re:The Loser Should Always pay (0)

Anonymous Coward | more than 6 years ago | (#22862446)

Maybe the maximum payout for the loser should be only
the maximum of the party with the smallest legal fees??

Example:
Party A had legal costs of $10
Party B had legal costs of $1000

Scenario 1.
Party A loses. They pay Party B $10
Total costs of Party A in court $20
Total costs of Party B in court $990

Scenario 2.
Party B loses. They pay Party A $10
Total costs of Party A in court $0
Total costs of Party B in court $1010

In the worst case scenario the poorer party only pays a
maximum of double of what it cost them to go to court.
That would make it easier for the poor guy to budget.

It would also be a disincentive for the big guy to chase
the small guy on wild speculation, because they would still
have to pay a part of their own fee's if they lose.

common law vs. civil law (3, Interesting)

darkob (634931) | more than 6 years ago | (#22860790)

However, this issue has nothing particular in common with the RIAA itself. Slashdot readers should know that within US legal system (common law, precedents, etc..) simply there's much different way of arguing things before the court. Almost everythig must be brought before the court. Within so called "continental law" (civil law, etc..) in most of the morld reimbursing attorney fees to the winning side of the case is a rule rather then an exception that has to be argued specially.

Not just his legal fees, but.... (2, Insightful)

WindBourne (631190) | more than 6 years ago | (#22860796)

it should include HIS time. This was a frivoulous lawsuit and was brought PURELY to harass and set examples. If **AA's are forced to pay legal fees, and the aquited defendant's time (which is probably even more than the legal time), then it would be fairer. Of course, that begs the question, can there be such a thing in a harassment law suit?

"Picking up the tab" isn't enough (5, Insightful)

h890231398021 (948231) | more than 6 years ago | (#22860808)

[...] mandating that a successful defense -- even if it comes from the RIAA's decision to voluntarily dismiss a case -- results in the record labels picking up the tab would even things out.

Just "picking up the tab" is woefully inadequate. Defending oneself against RIAA action requires a tremendous amount of time, requires one to front a whole bunch of money to an attorney, and places a huge amount of stress on the person being sued. None of these apply the the RIAA -- their attorneys are being paid to do the lawsuits as their regular day-to-day jobs, the expense of the lawsuits is inconsequential and part of expected, budgeted business expenses for the RIAA, and the lawsuits impose no particular stress on the RIAA or its attorneys.

What needs to happen in these situations -- that is, when $BIG_COMPANY sues an individual and drops the suit or loses -- is that substantial punative damages need to be assessed to compensate the individual for lost time, their savings being used unexpectedly (what if they were planning to use that money for a new car or needed home repairs? What if they had to stop contributing to their retirement savings to pay their lawyer?), and for the stress of the lawsuit on the individual. Only with substantial punative damages will the RIAA have enough disincentive to file poorly-researched "shotgun"-style lawsuits.

Re:"Picking up the tab" isn't enough (2, Insightful)

sm62704 (957197) | more than 6 years ago | (#22861010)

I wonder, if the RIAA sued you and lost, could you counter-sue for slander? Somehow I doubt it, but it sure would be sweet!

Actually considering the names they call us (their former and present customers) we should probably instigate a class action slander suit. Yo ho ho and all that.

Re:"Picking up the tab" isn't enough (0)

Anonymous Coward | more than 6 years ago | (#22861248)

"What needs to happen in these situations -- that is, when $BIG_COMPANY sues an individual and drops the suit or loses"

Why just a big company?

"-- is that substantial punative damages need to be assessed to compensate the individual for lost time, their savings being used unexpectedly (what if they were planning to use that money for a new car or needed home repairs? What if they had to stop contributing to their retirement savings to pay their lawyer?), and for the stress of the lawsuit on the individual."

The problem is none of those things you list are generally recoverable. Not only are you suggesting a different set of rules based on business size, you're suggesting that damages be paid for issues which courts have repeatedly said are not recoverable.

"Only with substantial punative damages will the RIAA have enough disincentive to file poorly-researched "shotgun"-style lawsuits."

WTF? If they lose EVERY SINGLE CASE they file, either on merits or for some other reason, THAT would give them plenty of "disincentive". So when you say "Only" what you meant was "ONE WAY".

It's very amusing that a post that is poorly thought out, badly researched, and just wrong is modded to +5. You mods are a joke.

Re:"Picking up the tab" isn't enough (1)

TheGratefulNet (143330) | more than 6 years ago | (#22861452)

is that substantial punative damages need to be assessed to compensate the individual for lost time

2 things: money should be given to the individual to offset actual and even perceived expenses and losses.

but that should not also mask the need to PUNISH goliath for causing trouble time and time again with david. the amount of 'hurt' needs to be real and significant to make the mafiaa (etc) stop their bullying tactics.

so that's 2 things: 'regular people' should not be left bankrupt when goliath picks an illegal fight with them; and 2nd, goliath should be 'hurt' in such a way that it gives serious pause about causing such harm again (ie, being a repeat offender).

the fines should be in the billions. millions, for the riaa/mpaa is not even to even register an 'ouch' on their part. they sue 'us' for millions; so we should be entitles to BILLIONS of damages if the mafiaa tries to muscle us illegally.

anything less is unjust.

Legal fees should not be automatic! (5, Interesting)

mlwmohawk (801821) | more than 6 years ago | (#22860930)

It's easy to see why an entity like RIAA should be forced to pay legal fees if it loses or drops its case, but making that award automatic would be even worse in the long run.

If a person sues a chemical company for polluting a lake, and the company gets off, it will wreck the person who tried to sue. A few million is corporate discovery costs and lawyers it too much to risk.

I think the relative difference in resources between the litigating entities should be considered. In the "david vs goliath" scenario, david should never be made to pay and goliath should be made to pay upon loss. That is hard to codify into law.

Re:Legal fees should not be automatic! (2, Interesting)

mooingyak (720677) | more than 6 years ago | (#22861214)

It should have more to do with the legitimacy of the case brought forward.

If I have a reasonable complaint -- not necessarily one that ultimately wins out, but one where there are real issues to be determined, then no one should pay the other side's costs. It should not matter what my resources are, just as if Joe Shmo sues IBM/General Motors/Random Large Company because he got bubble gum on his shoe, he should be forced to pay the other side's legal fees regardless of his resources.

From what I understand that's more or less how it works now, except the case has to be absurdly lopsided from the start. I think that standard should be adjusted.

I also think that the case currently before SCOTUS has more to do with the RIAA's abuse of the legal system than anyone looking to establish a de facto loser pays system. It's more of Corp X files 10000 lawsuits annually, and withdraws the complaint on over 9000. This being considered abuse of the system, Corp X now has to pay opponents fees on withdrawn lawsuits.

Re:Legal fees should not be automatic! (3, Insightful)

ICLKennyG (899257) | more than 6 years ago | (#22861232)

As a law student who has had this debate at length in my Civil Procedure course I'm going to have to step up and chime in for the non-automatic payment of the losers fees. First there are routes of counter suits and counter claims if it's important and needed. But the main reason is that it will make the idea of profiteering law suits more dangerous just differently structured. It's just a numbers game. If you get a threatening letter stating a claim which could cost $2m to litigate and you have a 10% chance of losing you are theoretically on the hook for $200k - if they offer to settle for $100k more than most would settle. The rare few who didn't settle would be at the risk of the other side spending anything and everything to help them win. EVERYBODY would hire Johny Cochran et al to represent them and we would have far more trial circuses and fewer settlements an end the courts and legislature have already determined they don't like.

Basically the system sucks as it is now, but it could be worse and you need only imagine the situation where David gets sued by Goliath and has to pay Goliath's fees for losing.

They're not! (1)

Xenographic (557057) | more than 6 years ago | (#22861502)

First, let me point out that I am not a lawyer, though I have taken a class that covered some of this stuff.

That said, recovery of court costs & attorney's fees is NOT automatic, nor will this case make them. We treat different types of cases differently. In SOME of those, there might be automatic or nearly-automatic awards. At most, this case would have the prevailing party awarded money in copyright cases, not all of them. Attorney's fees are also generally limited to being "reasonable" but I put that in quotes because they can still be rather high.

Anyhow, even if fees & costs get awarded by default in all copyright cases after this (and that will still require the Supreme Court to grant cert, something it does NOT do for most cases), I don't think that's a bad thing.

I mean, if you don't know who the copyright belongs to, why sue? See also: SCO v. IBM ...

Re:Legal fees should not be automatic! (1)

sexybomber (740588) | more than 6 years ago | (#22861684)

In the "david vs goliath" scenario, david should never be made to pay and goliath should be made to pay upon loss. That is hard to codify into law.

This is probably a bit simplistic, but how about doing it based on net worth?

If $GOLIATH_ASSETS > 10,000 * $DAVID_ASSETS , assessed by an impartial auditor at the start of the case, then Goliath pays if he loses or drops the case.

Of course, then what do you do if Goliath's assets are hidden offshore somewhere? Like I said, it's simplistic, but you get the drift, right?

Different version of loser pays (1)

shentino (1139071) | more than 6 years ago | (#22861142)

I think that a loser pays system would work if it worked like this:

Only if you actually LOSE your case, as in you get a bad VERDICT, should you have to pay.

Of course, there will be an incentive to drop a case, but the incentive will probably fade if you have a solid defense or offense.

Re:Different version of loser pays (2, Insightful)

darkob (634931) | more than 6 years ago | (#22861582)

Luckily, in civil law (continental legal systems) clock starts ticking once defendent is being served by the court a lawsuit of the plaintiff, so he/she can enter his legal arguments. In essence, suing people should never be "easy" and whoever brings lawsuit against anyone, there should be a clear knowledge that mandating defendant to defend is in itself causing (him or her) harm. "Checks and balances" comes in the form of clearly stating legal costs and accompanying fees with each and ever filing, so that once case is closed, with the court decision or by retracting of the lawsiut, there's always a clear track record of certain fees. These usually can't be over certain limit, so even if an ordinary guy sues big company, that big company can seldom dry the plaintiff broke (if he loses).. In all, civil law works pretty well and is quite logical. Given the fact that it has roots in Roman law it's probably even understandable.

About time (1, Troll)

Honest Man (539717) | more than 6 years ago | (#22861300)

With the number of lawsuits the RIAA throws out, this will pressure them into not only having better evidence but 'real geeks' answering tech questions in court instead of noobs saying what their puppet master tells them.

I look forward to a time where if the RIAA sues someone and at the last minute drops the case because they're about to lose - that they have to pay to get out of the lawsuit. In fact I'd like to a fine equal to the amount they sued for being given to the defendants if the RIAA runs from a case they start.

If this is declined - we're going to see many more lawsuits from the RIAA because they will have free license to sue anyone without risk beyond their own legal costs.

Doesn't Smell Right (2, Insightful)

mpapet (761907) | more than 6 years ago | (#22861314)

I'm definitely not a lawyer, but it seems to me that common sense and fairness never actually enter into a legal argument. There's precedence and the lack thereof, but never "it's not fair."

If the supreme's sided with him it sets up wide ranging precedent for which I doubt any of the justice's want to stick their neck out.

Odds Are (0)

Anonymous Coward | more than 6 years ago | (#22861336)

Approximately 7,500 people [wikipedia.org] ask the US Supreme Court to change an appeals court decision* each year. The Court denies certiorari (that is, more or less completely ignores) all but about 80-150 of those requests each year. Even if the case is selected by the Court to be heard, the Court may still not give the person what he's asking for.

Just by the numbers, this case has about a one and a half percent chance of getting heard.

--YIIALBIANYL. GYOGDL. YMNO.

*Every one of those 7,500 people claims that there is some vital legal dispute that needs to be harmonized for the good of the nation. In 98.5% of cases, the Court tells them to 'talk to the hand.'

Here's the key... (1)

Orig_Club_Soda (983823) | more than 6 years ago | (#22861438)

Considering that the general impression is that the RIA really doesnt know who's committing the crime, these lawsuits seem frivolous. I think automatic compensation for innocent defendants is the only thing that would encourage the RIAA to do a better job on their end.

no chance (1)

Yurka (468420) | more than 6 years ago | (#22861718)

SCOTUS grants less than a percent of all cert petitions, and in this case the ruling would set a widely applicable precedent, which is precisely why they wouldn't even look at it.

Don't hold your breath (4, Informative)

westlake (615356) | more than 6 years ago | (#22862220)

In the petition for certiorari filed with the Supreme Court

The U.S. Supreme Court receives 7,000 or so petitions for review each year. It grants 150. About a quarter of these will ultimately be disposed of in single line or less.

The screening process begins with the Court's law clerks, who sift through the petitions and settle upon a select few that they deem worthy of consideration by the justices. Next, inside a closed conference room, the Chief Justice leads the meeting in which the Justices discuss the petitions and vote aloud on which cases they find more significant and deserving of deliberation. Voting begins with the Chief Justice and is followed by the Associate Justices according to seniority. The most junior Justice...takes the handwritten notes that will be passed to a clerk for public announcement... To be considered, a case must receive at least four votes. Whether or not a case is accepted "strikes me as a rather subjective decision, made up in part of intuition and in part of legal judgement," Rehnquist wrote in his book, "The Supreme Court: How It Was, How It Is." In deciding whether to review a case, the Court will generally consider whether the legal question was decided differently by two lower courts and needs resolution by a higher court, whether a lower court decision conflicts with an existing Supreme Court ruling, and whether the issue could have broader social significance beyond the interests of the two parties involved. However, not all cases of significant social issues needing resolution are accepted by the Supreme Court.

A History of the Supreme Court [findlaw.com]

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