Does the RIAA Fear Counterclaims? 245
NewYorkCountryLawyer writes, "The RIAA seems to have a fear of counterclaims. In Elektra v. Schwartz, a case against a woman with Multiple Sclerosis, the RIAA is protesting on technical grounds Ms. Schwartz's inclusion of a counterclaim against them for attorneys fees. This counterclaim includes as an exhibit the ACLU, EFF, Public Citizen brief in Capitol v. Foster, which decried the RIAA's tactics as a 'driftnet.' In prior email correspondence between the lawyers Ms. Schwartz's attorney had offered to withdraw the counterclaim if the RIAA's lawyer could show him legal authority that its assertion was impermissible, saying 'I wouldn't want to get into motion practice over a mere formality.' The RIAA lawyer's response was 'I will let you know.'"
Re:Duh (Score:5, Informative)
Re:Turkeys hate Christmas. News at Eleven (Score:5, Informative)
The Defendant asserts that under 505 of the Copyright Act, "the court may . . . award a reasonable attorney's fee to the prevailing party as part of the costs." Which is actually a straight quote from the law.
Page 14 of the PDF, Page 11 if you go by the internal #ing [ilrweb.com] is the section of the defense's legal brief which discusses the counterclaim issue.
The brief quotes from a SCOTUS case called Fogerty v. Fantasy, Inc. [oyez.org]
The Question: Do federal courts have discretion over whether or not to force a loosing party to pay all or part of the victorious party's attorney's fees?
The (Short) Answer: Yes
Re:Turkeys hate Christmas. News at Eleven (Score:5, Informative)
Re:The problem with juries (Score:5, Informative)
Re:Duh (Score:3, Informative)
2. Even if it was decided for Foster, her case is in Oklahoma (10th Circuit), whereas the Schwartz case is in NY (the 2nd circuit). Two completely different Federal circuits, which means that precendent in either circuit is not binding upon the other, even though both counterclaims are almost exactly the same.
Re:heh (Score:5, Informative)
Basically, the Supreme Court of the United States (SCOTUS) has read the federal laws and the constitution as allowing judges wide discretion over whether or not the partys before the court can request that the other side pay all the costs incurred in pursing the suit.
You want to sue me? I'm innocent!
"Yeah, but you can't pay for your legal defense, so you'll lose and have to pay anyway"
That's not fair, your Honor, if I win, will you make them pay for my fees?
seems fair to me.
"gulp"
"Can we drop the suit?"
Sure, but you have to pay the fees she's already incurred.
"Uhm.. let me try to change your mind"
it's your dime
And that's where it is now
-GiH
Re:Duh (Score:5, Informative)
As to your comment that we should have made a Rule 11 motion, that can be done at any time in the case, and one that may not be necessary, since the Copyright Act gives Ms. Schwartz a right to attorneys fees, on a much lesser showing than would be needed under Rule 11. Rule 11 motions should never be undertaken lightly.
If you're really a first year law student, please don't -- when you get out there -- practice law like these guys do.
Re:Duh (Score:5, Informative)
Re:The problem with juries (Score:4, Informative)
Re:Relevance? (Score:4, Informative)
It's a case against a woman with Multiple Sclerosis who's never even heard of file sharing until the RIAA came after her. She just uses her computer to communicate with people by email. The RIAA knows this, but doesn't care.
Re:The problem with juries (Score:3, Informative)
Re:The problem with juries (Score:3, Informative)
Re:The problem with juries (Score:4, Informative)
Can you rebut this? (Score:5, Informative)
http://www.consumer.state.ny.us/clahm/clahm-child
Parents or legal guardians (other than foster parents) can be liable for up to $5,000 in damages for the willful and malicious damage, destruction, concealment, or theft of property (whether publicly or privately owned) by their child, if between 10 and 18 years old. This also includes the actual monetary damages suffered by a school or other public or private victim in responding to the false reporting of an "incident" or placing a "false bomb" by a minor. If damages awarded by the court exceed $500, the parent can ask to have damages limited to that amount they can actually afford to pay, up to $5000, but not less than $500, because of financial hardship.
this would seem to indicate, parents CAN in fact be liable for child actions.. can you resolve please, this difference of opinion?
Re:Turkeys hate Christmas. News at Eleven (Score:3, Informative)
I think you're horribly confused about the legal system...
The courts could care less whether or not you have representation in a civil case, they also dont care if you defend yourself, they dont even care if you show up*.
*Not in the way they care if you didn't show up to a criminal proceeding anyway.
Re:Can you rebut this? (Score:2, Informative)
The lawsuit is not about willful and malicious damage, destruction, concealment, or theft of property. So I guess the law, which you so wonderfully quote, is quite against you.
Re:Avoiding purchase.... (Score:3, Informative)
The constitution grants the copyright holder exclusive control over distribution. It is within his right to demand that the infringement end, whether he has suffered financial loss or not.
Unless you can produce a license to distribute content on the P2P nets that sells for $1 a track on iTunes it fair for a judge or jury to conclude that there has been financial loss.
The damages to be calculated according to some judge-made or statutory formula.
PS here's a civil liability quote (Score:2, Informative)
General Obligations Law 11-105
Parents or legal guardians of an unemancipated minor shall be civilly liable for said minor who commits larceny against the property of a mercantile establishment to the operator of such establishment in an amount consisting of:
a. the retail price of the merchandise if not recovered in merchantable condition up to an amount not to exceed $1,500.00; plus
b. a penalty not to exceed the greater of five times the retail price of the merchandise or $75.00; provided, however, that in no event shall such penalty exceed $500.00.
so such civil responsibility does exist,
98% of cases end out of court (Score:3, Informative)
In the federal system only 2% of tort cases end in a trial. Additional Federal Civil Justice Facts at a Glance [usdoj.gov] The plaintiff tends to win, but the odds are little better than a coin toss.
Re:Can you rebut this? (Score:5, Informative)