Judge Recommends RIAA Pay Attorney’s Fees of Ex-Defendant

Magistrate Judge Donald Ashmanskas said the RIAA waited until the last minute to drop its case against Tanya Andersen, when it became clear that the RIAA was far short of even “prima facie” evidence to show that she was responsible for song-swapping through the Kazaa client. Andersen is now suing the RIAA in the first file-sharing lawsuit against it seeking class-action status (WID Sept 14 p4). The suit includes conspiracy and extortion allegations. Another court recently approved the same claims in a separate P2P infringement case, but as counterclaims against an RIAA suit.

The RIAA’s request for Ashmanskas to use the so- called Buckhannon standard to evaluate Andersen’s fee motion backfired. That test prevents the prevailing party from getting fees unless a “material alteration of the legal relationship of the parties” is shown. Though district courts in the 9th Circuit hadn’t applied Buckhannon to copyright cases “to any substantial degree,” Ashmanskas applied the test to this case -- but against the RIAA. Short of an order on the merits of the case or a consent decree, Andersen has received “all relief available to a defendant of a claim for copyright infringement,” and she didn’t have to make any concessions to get relief, he said.

Though it’s impossible on the record to decide whether the RIAA case was “frivolous,” it’s easier to judge the RIAA’s “motivation,” Ashmanskas said. They are two of four Fogerty factors used in considering attorney’s fees. Several P2P infringement cases cited by the RIAA aren’t relevant, because its member labels quickly dropped litigation when doubts arose as to the actual infringer. Ashmanskas called the RIAA action in Andersen “distinct” because the trade group dismissed its claims for lack of evidence -- not to sue someone else or sue under a different theory of recovery, and only then after “significant briefing on discovery disputes and the merits of the claims and counterclaims.” It “may reasonably be inferred” that the RIAA lacked even prima facie evidence of Andersen’s liability, considering the timing of its dropped claims -- right before the due date for its opposition to Andersen’s motion for summary judgement. In a footnote, Ashmanskas said Andersen was “reasonably forthcoming” in response to RIAA discovery requests, unlike defendants in cases cited by the group.

Most damning to the RIAA was its apparent refusal to investigate another possible infringer, who shared the Kazaa screen name “gotenkito” that the organization had identified as the culprit. The RIAA contacted the Everett, Wash., man behind the screen name two years after suing Andersen and “inexplicably” accepted his claim of innocence over Andersen’s, Ashmanskas said. Both the man and Andersen’s daughter were known to be fans of the cartoon character that inspired the screen name, but RIAA knew earlier that the man was a fan. Through its actions, RIAA showed its motivation was suspicious and that it acted with “objective unreasonableness,” the third Fogerty factor, Ashmanskas said. The trade group should have been “more diligent in pursuing, and less inclined to discredit, exculpatory evidence,” even when the evidence was inconclusive.

The RIAA dragged out the case against Andersen for two years without adding evidence, Ashmanskas said. Andersen continued to pay for her attorney as the RIAA continued to rely on an IP address identified three times by Verizon as having belonged to Andersen during the period of the claimed infringements. “In poker terms, defendant didn’t call; plaintiffs folded,” he said. RIAA’s prosecution of the case “does not appear to be justified as a reasonable exploration of the boundaries of copyright law.” Such an exploration “should be deterred in light of its potentially chilling effect on the public’s access to creative works,” shared through the Internet, satisfying the fourth Fogerty factor.

Finally, Ashmanskas said Andersen’s defense was more concrete than the RIAA’s accusations. “Her factual positions were consistent, and her legal stances were reasonable,” even if they didn’t help “clarify the contours of copyright law,” he said. An RIAA spokeswoman declined to comment on the judge’s recommendations.

Meanwhile, the U.S. District Court in Tampa, Fla., recently denied most of an RIAA motion to dismiss a P2P defendant’s amended counterclaims in UMG v. Del Cid. They cover such uncharted territory as extortion, trespass and unfair trade practices -- similar to claims in Andersen’s class-action suit. Judge Richard Lazzara shot down the RIAA’s view that its alleged misdeeds are protected by the Supreme Court’s Noerr-Pennington doctrine, which says that behavior “incidental to the prosecution of a suit,” such as a settlement offer, can’t be considered abuse of the judicial process. The RIAA invoked the same doctrine against Andersen’s class-action suit. Neither the Noerr doctrine nor Florida’s litigation privilege covers the “sham litigation” that Suzy Del Cid alleged, Lazzara said.

Del Cid may be entitled to “nominal damages” for trespass even if she can’t show that the RIAA harmed her property, Lazzara said. The RIAA said its investigator gained access to her computer, and Del Cid said she never authorized the access or configured her computer to share files. She might also qualify for damages under the Computer Fraud and Abuse Act for the same reasons, the judge said. Del Cid’s Florida deceptive-trade allegations contain “adequate facts” to survive a motion to dismiss, Lazzara said.

Lazzarra called RIAA’s litigation practices open to question, in perhaps the biggest blow in the order. Del Cid’s claim that the RIAA has a “pattern and practice” of bringing infringement suits, alleging wrongdoing and then dismissing cases without prejudice “once contested,” deserves a hearing, he said. Del Cid wants a declaration of noninfringement. Lazzara also allowed Del Cid’s civil extortion claim, “namely, a peculiar power of coercion possessed by Plaintiffs virtue [sic] of their combination, which an individual acting alone would not possess.” The only counterclaim dismissed by Lazzara was copyright misuse, which isn’t recognized as a cause of action by district courts in the 11th Circuit.