Copy of the Judge's order:
http://www.ilrweb.com/viewILRPDFfull.asp?filename=capitol_foster_070315OrderCompelAttysBillRecords
From Ars Technica
"Some of you may remember Capitol Record v. Debbie Foster, where the RIAA sued an Oklahoma woman over copyright infringement. In July, the case against her was dismissed with prejudice, which, in the eyes of the judge, made her the prevailing party. Earlier today, the judge handed her another legal victory, awarding her "reasonable" attorneys' fees from the RIAA.
Foster was originally sued in November 2004 after someone using an IP address assigned to an Internet account in her name was discovered with a shared folder available on a file-sharing network. Foster said that she owned the account, but that she was completely ignorant of the existence and use of file-sharing software. Foster did say that her adult daughter and estranged husband had access to the account, and may have been responsible for the infringement. (The RIAA was granted a default judgment against Amanda Foster after she failed to answer the RIAA's complaint.)
Instead of immediately dropping the case against Debbie Foster and suing those they believed were responsible for the alleged infringement, the plaintiffs amended the complaint to add her daughter Amanda Foster, while keeping Debbie as a codefendant. The RIAA told Debbie Foster that she was liable for any infringement regardless of whether she had shared or downloaded files herself because she was the registered owner of the account. Foster responded by filing a counterclaim for a "declaratory judgement of noninfringement."
Over a year and a half after the lawsuit was filed, the RIAA decided to dismiss their claims against Debbie Foster with prejudice. Foster, however, refused to drop her counterclaim. In July 2006, Judge Lee R. West dismissed both the original lawsuit and the counterclaim (finding the latter to be unnecessary), ruling that Foster was the "prevailing party" under the Copyright Act, opening the door for an award of attorneys' fees.
Secondary infringement and the Copyright Act
The RIAA's strategy of keeping Foster as a defendant and saying that she was responsible for secondary copyright infringement appears to have backfired and was cited by the Judge as supporting his attorneys' fee award. Judge Lee was unconvinced by the the RIAA's argument that she was secondarily liable due to her owning the account allegedly used for the infringement.
"The Copyright Act does not expressly render anyone liable for infringement committed by another. Rather, the doctrine of secondary liability emerged from common law principles," wrote Judge Lee. "Under those common law principles, one infringes a copyright contributorily by intentionally inducing or encouraging a direct infringement."
Judge Lee set out the three elements of a claim for contributory copyright infringement: direct infringement by a third party, knowledge by the defendant that third parties were directly infringing, and substantial participation by the defendant in the infringement. "Merely supplying means to accomplish infringing activity [e.g., an Internet connection] cannot give rise to imposition of liability for contributory copyright infringement," according to the opinion.
The record labels could not support their argument of secondary liability, according to the judge. Perhaps most importantly, Judge Lee could find no case "holding the mere owner of an Internet account contributorily or vicariously liable for the infringing activities of third persons."
The judge also had harsh words for the RIAA, saying that it looked as though they had pressed the secondary infringement claims to force Foster into a settlement, even after they realized she was not responsible for the alleged file sharing.
As expected, the labels submitted a number of opinions supporting their contention that Foster should not be awarded attorneys' fees. Judge Lee found them unconvincing:
Unlike the courts in the unpublished opinions cited by the plaintiffs, this Court must consider whether a defendant should receive an award of attorneys' fees when she successfully defends against the novel application of secondary copyright infringement claims... Her only alternative to litigating the plaintiffs' contributory or vicarious liability claim was to capitulate to a settlement for violation she insists she did not commit. Such capitulation would not advance the aims of the Copyright Act as the plaintiffs' untested theory would remain untested.
A change in strategy?
Will this cause the RIAA to rethink its litigation strategy? Probably. The industry cartel will have to tread carefully with any secondary infringement claims now that there is case law that owning an Internet account used for infringement does not automatically make the owner liable for said infringement. Attorney Ray Beckerman told Ars that he believes there are huge implications from this opinion. "It sends a message to the RIAA... that there are consequences to this 'driftnet' litigation strategy," Beckerman said.
"We respectfully believe that the Court got it wrong," an RIAA spokesperson told Ars Technica. "We are studying the opinion and will make a determination as to how best to proceed after we have completed our review and analysis." The spokeperson highlighted the previous rulings on attorneys' fees: "Prior to this Court's decision, five other courts have ruled on substantially similar motions for attorneys' fees in virtually identical factual settings. All five ruled for the record companies, and we respectfully disagree with the decision of this Court to depart from those prior decisions." It should be noted that Judge Lee reviewed all five of those cases and in contrast with the RIAA's assertion, found that they were irrelevant in Capitol v. Foster.
The RIAA spokesperson also accused the defendant of working hard "to avoid disclosing that her daughter was the underlying direct infringer." The trade group believes that "Such a pattern of behavior on the defendant's part should not give rise to an award of fees."
One of the worst things that could happen to the RIAA is finding itself on the wrong end of case law. As a result, the RIAA has made a habit of dismissing cases that are going badly. In the case of Capitol v. Foster, the defendant was named the prevailing party, which opened the door for the awarding of attorneys' fees. If the RIAA acts quickly to drop defendants once it realizes they are not responsible for infringement—something it failed to do in this case—it may be able to minimize its liability for attorneys' fees (which are reported to be in the neighborhood of $50,000 in this case).
The ruling also opens the door wider for a "prove it was me using the computer" defense. The RIAA's strategy of relying heavily on IP addresses to identify infringers is likely to draw even closer scrutiny as a result of this ruling. This is the first ruling that we know of where a direct relationship between an IP address and an accused party was demonstrated, but deemed insufficient to prove infringement.
The court's finding that the owner of an Internet account cannot be held liable for copyright infringement that occurs without his or her knowledge is more significant. Although the judge in Elektra v. Santangelo declined to dismiss the labels' infringement claims against Patti Santangelo, he doubted that "an Internet-illiterate parent who does not know Kazaa from a kazoo" could be found liable for file sharing done in her house without her knowledge or consent. In short, it means that merely owning an account used for infringement doesn't rise to the level of liability under the Copyright Act."
http://www.ilrweb.com/viewILRPDFfull.asp?filename=capitol_foster_070315OrderCompelAttysBillRecords
From Ars Technica
"Some of you may remember Capitol Record v. Debbie Foster, where the RIAA sued an Oklahoma woman over copyright infringement. In July, the case against her was dismissed with prejudice, which, in the eyes of the judge, made her the prevailing party. Earlier today, the judge handed her another legal victory, awarding her "reasonable" attorneys' fees from the RIAA.
Foster was originally sued in November 2004 after someone using an IP address assigned to an Internet account in her name was discovered with a shared folder available on a file-sharing network. Foster said that she owned the account, but that she was completely ignorant of the existence and use of file-sharing software. Foster did say that her adult daughter and estranged husband had access to the account, and may have been responsible for the infringement. (The RIAA was granted a default judgment against Amanda Foster after she failed to answer the RIAA's complaint.)
Instead of immediately dropping the case against Debbie Foster and suing those they believed were responsible for the alleged infringement, the plaintiffs amended the complaint to add her daughter Amanda Foster, while keeping Debbie as a codefendant. The RIAA told Debbie Foster that she was liable for any infringement regardless of whether she had shared or downloaded files herself because she was the registered owner of the account. Foster responded by filing a counterclaim for a "declaratory judgement of noninfringement."
Over a year and a half after the lawsuit was filed, the RIAA decided to dismiss their claims against Debbie Foster with prejudice. Foster, however, refused to drop her counterclaim. In July 2006, Judge Lee R. West dismissed both the original lawsuit and the counterclaim (finding the latter to be unnecessary), ruling that Foster was the "prevailing party" under the Copyright Act, opening the door for an award of attorneys' fees.
Secondary infringement and the Copyright Act
The RIAA's strategy of keeping Foster as a defendant and saying that she was responsible for secondary copyright infringement appears to have backfired and was cited by the Judge as supporting his attorneys' fee award. Judge Lee was unconvinced by the the RIAA's argument that she was secondarily liable due to her owning the account allegedly used for the infringement.
"The Copyright Act does not expressly render anyone liable for infringement committed by another. Rather, the doctrine of secondary liability emerged from common law principles," wrote Judge Lee. "Under those common law principles, one infringes a copyright contributorily by intentionally inducing or encouraging a direct infringement."
Judge Lee set out the three elements of a claim for contributory copyright infringement: direct infringement by a third party, knowledge by the defendant that third parties were directly infringing, and substantial participation by the defendant in the infringement. "Merely supplying means to accomplish infringing activity [e.g., an Internet connection] cannot give rise to imposition of liability for contributory copyright infringement," according to the opinion.
The record labels could not support their argument of secondary liability, according to the judge. Perhaps most importantly, Judge Lee could find no case "holding the mere owner of an Internet account contributorily or vicariously liable for the infringing activities of third persons."
The judge also had harsh words for the RIAA, saying that it looked as though they had pressed the secondary infringement claims to force Foster into a settlement, even after they realized she was not responsible for the alleged file sharing.
As expected, the labels submitted a number of opinions supporting their contention that Foster should not be awarded attorneys' fees. Judge Lee found them unconvincing:
Unlike the courts in the unpublished opinions cited by the plaintiffs, this Court must consider whether a defendant should receive an award of attorneys' fees when she successfully defends against the novel application of secondary copyright infringement claims... Her only alternative to litigating the plaintiffs' contributory or vicarious liability claim was to capitulate to a settlement for violation she insists she did not commit. Such capitulation would not advance the aims of the Copyright Act as the plaintiffs' untested theory would remain untested.
A change in strategy?
Will this cause the RIAA to rethink its litigation strategy? Probably. The industry cartel will have to tread carefully with any secondary infringement claims now that there is case law that owning an Internet account used for infringement does not automatically make the owner liable for said infringement. Attorney Ray Beckerman told Ars that he believes there are huge implications from this opinion. "It sends a message to the RIAA... that there are consequences to this 'driftnet' litigation strategy," Beckerman said.
"We respectfully believe that the Court got it wrong," an RIAA spokesperson told Ars Technica. "We are studying the opinion and will make a determination as to how best to proceed after we have completed our review and analysis." The spokeperson highlighted the previous rulings on attorneys' fees: "Prior to this Court's decision, five other courts have ruled on substantially similar motions for attorneys' fees in virtually identical factual settings. All five ruled for the record companies, and we respectfully disagree with the decision of this Court to depart from those prior decisions." It should be noted that Judge Lee reviewed all five of those cases and in contrast with the RIAA's assertion, found that they were irrelevant in Capitol v. Foster.
The RIAA spokesperson also accused the defendant of working hard "to avoid disclosing that her daughter was the underlying direct infringer." The trade group believes that "Such a pattern of behavior on the defendant's part should not give rise to an award of fees."
One of the worst things that could happen to the RIAA is finding itself on the wrong end of case law. As a result, the RIAA has made a habit of dismissing cases that are going badly. In the case of Capitol v. Foster, the defendant was named the prevailing party, which opened the door for the awarding of attorneys' fees. If the RIAA acts quickly to drop defendants once it realizes they are not responsible for infringement—something it failed to do in this case—it may be able to minimize its liability for attorneys' fees (which are reported to be in the neighborhood of $50,000 in this case).
The ruling also opens the door wider for a "prove it was me using the computer" defense. The RIAA's strategy of relying heavily on IP addresses to identify infringers is likely to draw even closer scrutiny as a result of this ruling. This is the first ruling that we know of where a direct relationship between an IP address and an accused party was demonstrated, but deemed insufficient to prove infringement.
The court's finding that the owner of an Internet account cannot be held liable for copyright infringement that occurs without his or her knowledge is more significant. Although the judge in Elektra v. Santangelo declined to dismiss the labels' infringement claims against Patti Santangelo, he doubted that "an Internet-illiterate parent who does not know Kazaa from a kazoo" could be found liable for file sharing done in her house without her knowledge or consent. In short, it means that merely owning an account used for infringement doesn't rise to the level of liability under the Copyright Act."
Last edited:
