RIAA Seeks Reversal of Liability Judgment for Okla. Defendant
The RIAA tiptoed a fine line, telling an Okla. federal judge he was wrong to rule that the trade group must pay an innocent defendant’s attorney fees in Capitol v. Foster (WID Feb 8 p3). The group has filed a motion for reconsideration in the case, demanding Judge Lee West reexamine his reasoning. RIAA used defendant Debbie Foster’s subscriber agreement with Cox Communications to claim she’s liable for any file-sharing, an explicit rejection of West’s ruling that simply holding an Internet account doesn’t establish liability. It requested West change the date from which Foster can claim attorney fees, trying to limit its own liability.
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RIAA highlighted West’s conclusion that “a question” exists on RIAA motives in pursuing secondary liability claims against Foster. West said the “appearance” was that RIAA used the claims to spur a settlement. According to the judge’s careful wording, the so-called Fogerty factors for awarding attorney fees -- “frivolous or objectively unreasonable” infringement claims or improper motives -- weren’t met, said the filing in U.S. Dist. Court, Oklahoma City.
The speedy default judgment against Debbie’s daughter Amanda kept RIAA from doing enough discovery to “prove each and every element” of its secondary claims against Debbie, RIAA said, citing other courts’ refusals to award fees given an “insufficient” factual record. The Okla. court wrongly assumed RIAA wholly based its case against Debbie Foster on her Internet subscription, when in fact Debbie Foster had every reason to believe Amanda was using Kazaa illicitly, the group said. Discovery “would have established” that the Kazaa icon was on the desktop and that “a substantial number of pop-up advertisements” likely were triggered by Kazaa, whose free version is ad-supported, RIAA said. If the computer stood in a common area of the house, Debbie could have heard Amanda playing music of unknown origin, or the family may have found viruses on the computer that would point to infection through Kazaa, the filing said.
But the trade group implied ISP account ownership is enough to trigger liability. Debbie Foster’s account terms with Cox prevented her “from using the account to infringe copyrights of others and expressly required defendant to act to prevent others” from infringing, the filing said. RIAA also believes it could have proved that Debbie Foster had a “direct financial interest” in Amanda’s alleged infringement, which would secure a secondary infringement claim, but gave no indication what Debbie Foster’s interest could be. In any case, the trade group was confident it could show that Debbie Foster “should have known, or was willfully blind to” her daughter’s activities.
West also erred in asserting that Debbie Foster had no choice but to “capitulate” to an RIAA settlement, the filing said. RIAA had tried to withdraw the case, “with no cost to defendant,” since at least April 2005. Instead, Debbie Foster “chose to expand and continue the litigation at every turn,” RIAA said, offering a lengthy timeline of efforts to settle with the family. RIAA said Debbie admitted in late 2004 -- before the group sued -- that her daughter or husband “may” have been responsible, and later, that she “believed” someone in the house was at fault.
If Judge West’s ruling stands, RIAA stands to have to pay 10 times the sum it won in Amanda’s default judgment, it said. This “would turn the policies of the Copyright Act on their head,” the filing said: “This court should not encourage or reward the creation of such a fee-spinning machine.” RIAA’s damages could hit $75,000, it said without giving a source or calculation for that estimate. We couldn’t reach Debbie’s attorney immediately to ask for an estimate of her lawyer fees, which under West’s order can include those for the period during which RIAA conducts discovery of its own counsel’s legal fees.
Acknowledging public reaction to its defeat, RIAA warned West to stop what it considers erroneous interpretations of his ruling. “Defense counsel in other cases like this across the country are already citing the Court’s statement, albeit out of context,” to show that RIAA’s secondary liability claims in any case are “not viable,” the group said.
The Cox Internet terms RIAA cited are “standard boilerplate in ISP customer agreements,” and apply equal liability to any individual, corporate or nonprofit ISP customer, Electronic Frontier Foundation attorney Fred von Lohmann said. The “pretzel logic” of the parental-neglect argument, if accepted by West and taken to its logical conclusion, would create “a precedent to use against every employer, every library and every school for every copyright infringement committed on its computers,” he said. TechDirt Corporate Intelligence Pres. Mike Masnick called the pop- up/file-sharing connection obvious only to tech-savvy users: “The filing doesn’t explain how someone who isn’t particularly computer-savvy is supposed to immediately recognize that pop-up ads equal your kid file-sharing.”