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A man who was sued when his daughter was caught downloading music from the Australian KaZaa peer to peer web site has gone back to court in an effort to get his legal fees paid.
A man who was sued when his daughter was caught downloading music from the Australian KaZaa peer to peer web site has gone back to court in an effort to get his legal fees paid.
According to Radio Ink his problems started when Virgin Records Sony BMG, Arista, and UMG sued Cliff Thompson in 2004 for infringing their copyrights over KaZaa but later dropped the suit when it was discovered that it was his daughter not him that had been downloading the content.
It became clear after the suit was filed that Thompson’s adult daughter was the one downloading music over KaZaa, and the writ filed with the US Supreme Court by Thompson’s attorney, Ted Dalton Lee, says “the implications of this case extend to tens of thousands of innocent defendants across the country who have been sued for copyright infringement simply because they happen to pay for an Internet service account that was used by someone else to download music.” RIAA labels have filed approximately 26,000 peer-to-peer infringement suits in the past four years.
The labels ultimately moved for the dismissal but contested Thompson’s request that they be forced to pay his attorney’s fees of approximately $7,500. The writ says the court relied on the Supreme Court’s decision in Fogerty vs. Fantasy (that’s former Creedence Clearwater Revival frontman John Fogerty’s suit to recover fees in an infringement suit by CCR’s onetime record label) when it denied Thompson’s request, ruling that the labels’ case was not “objectively unreasonable” and that the plaintiffs did not act “in bad faith or maliciously” in filing suit. The court also said Thompson was not responsive to the labels’ attempts to contact him, which Thompson disputes.
Thompson appealed to the Fifth Circuit, which also relied on Fogerty to rule against him. But the writ says the Supreme Court intended in that decision to encourage defendants in copyright cases to go to court — and that the lower courts have instead “latched on to one footnote of Fogerty and almost uniformly used four specific factors — frivolousness, motivation, objective unreasonableness, and the need to advance considerations of compensation and deterrence — to determine whether an award of attorney’s fees to a prevailing party is proper, especially for an award to a prevailing defendant.”
The writ also notes that the Seventh Circuit has used Fogerty to justify a different view of copryight cases, as it has ruled that “the presumption in favor of awarding fees” to the prevailing party — plaintiff or defendant — is “very strong.”
The writ continues, “Clearly the Seventh Circuit understands what Fogerty did and did not do, and has elected to fill in the gaps in order to satisfy the tenor of Fogerty. Petitioner asks this court … to follow the Seventh Circuit in requiring that a prevailing party in a copyright infringement action, whether plaintiff or defendant, be presumptively entitled to a recovery of attorney’s fees. Only with such a presumption can a prevailing defendant be treated in an evenhanded manner as set forth by this court in Fogerty.”
The writ concludes, “Should copyright owners be encouraged to fully and fairly litigate their infringement claims? Absolutely. But so should accused infringers be encouraged to fully and fairly litigate their meritorious defenses. Fogerty, as interpreted by the circuits other than the Seventh Circuit, simply does not provide that incentive.”
