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Capitol Records Ordered to Pay Attorney Fees
July 16, 2007
Thomas Mennecke
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"Rebel spaceships, striking from a hidden base, have won their first victory against the evil Galactic Empire..." Many file-sharers may see today's staggering news as reminiscent of the opening scroll of Star Wars, as a small force has emerged victorious against the RIAA (Recording Industry Association of America). For the first time ever, the RIAA has been ordered to pay attorney fees in the "Capitol Records, Inc. vs. Debbie Foster and Amanda Foster" case.

The case against the Fosters began like any other. In November of 2004, the recording industry (in this case Capitol Records) filed suit against Debra and Amanda Foster of Oklahoma. The Plaintiffs claimed that Debra Foster had "contributorily and/or vicariously infringed Plaintiffs' copyrighted recordings, including, but not limited to the extent that one of members of their household engaged in copyright infringement."

The Fosters fought back, however, and filed counterclaims for a declaratory judgment and prima facie tort. A declaratory judgment generally "forces the hand" of a suing party, while a prima facie tort accuses the suing party of "intentionally causing harm." The prima facie tort was dismissed by the court, but the declaratory counterclaim stuck. Ms. Foster's defense wanted the plaintiffs to provide the exact details of the alleged infringement, something Capitol Records ostensibly couldn't provide.

After failing to resolve the matter outside of court, the plaintiffs sought to dismiss the case with prejudice - meaning the case against the Fosters would have been shut for good. This apparently wasn't good enough for the Fosters, who at this point had incurred substantial defense costs and refused to dismiss their counterclaim. On July 13, 2006, the court ordered the case dismissed with prejudice and that the dismissal of "the plaintiff's claims against Ms. Foster resolved the controversy in her favor and negated any [justifiable] cause or controversy between the parties."

In addition, the Court determined that Ms. Foster was the prevailing party in the action, and in February determined she was entitled to an award of attorney fees.

That was the easy part. Now comes exactly how much Ms. Foster is actually entitled to - which was determined today. Initially, the defense requested attorney fees of $105,680.75, with additional fees bringing the total to $114,363.18 – a total that Capitol objected to immediately. Capitol argued the attorney fees in particular were objectionably high, and requested a 40% reduction. The court agreed with Capitol’s objection due to “unnecessary time” spent resisting the plaintiffs, and reduced the attorney fees to $61, 576.60.

The exact dollar amount came under more scrutiny, as the plaintiffs argued the defendant was not entitled to recover her expert witness fees. The court this time disagreed with the recording industry, and granted full recovery of witness fees totaling $4,668.75.

Ms. Foster had submitted other miscellaneous fees, a majority of which were copying and printing documents, which totaled $4,013.68. However this was disputed by the plaintiffs, as they point out that charging $1.50 per printed documents was excessive. The court agreed with the recording industry, and granted only $0.20 per page. The court reduced Ms. Foster’s expense reimbursement to $2,439.98.

In total, as the prevailing party Ms. Foster was awarded $68,685.23. This is the first time any defendant was ever awarded attorney fees against an RIAA member. Five previous times, prevailing parties have requested attorney fees only to be rejected. They are:

• Elektra Entertainment Group, Inc. v. Perez, No. 05-931 AA,
2006 U.S. Dist. LEXIS 78229 (D. Ore. Oct. 25, 2006).

• Virgin Records America, Inc. v. Darwin, No. SA CV 04-1346 AHS
(ANx), 2006 U.S. Dist. LEXIS 96069 (C.D. Cal. Apr. 17, 2006).

• Capitol Records, Inc. v. O'Leary, No. SACV 05-406 CJC (RNBx),
2006 U.S. Dist. LEXIS 5115 (C.D. Cal. Jan. 31, 2006).

• Priority Records L.L.C. v. Chan, No. 04-cv-73645, 2005 U.S.
Dist. LEXIS 20360 (E.D. Mich. May 19, 2005).

* Virgin Records America, Inc. v. Thompson, No. SA-06-CA-592-OG
(W.D. Tex. Nov. 29, 2006).

So is the end of the road for Ms. Foster? Has her legal victory finally brought the RIAA down? Not quite. Slyck.com spoke with an RIAA representative when we learned of this news, and they hardly appeared ready to concede defeat.

"We respectfully believe that this ruling is in error and is an isolated occurrence,” an RIAA spokesperson told Slyck.com.

"There are a couple of important points to note here. There is no question that infringement occurred in this household and, in fact, this court has already found that the actual person who engaged in online music theft was a member of Ms. Foster's immediate family. We regret that the case was not immediately resolved at that point. Every other court to have addressed this issue of attorney’s fees decided in favor of the recording industry.

"Our interest in these cases is enforcing the rights of the record companies and fostering an online environment where the legal marketplace can flourish and the music industry can invest in the new bands of tomorrow. In the handful of cases where the person engaging in the illegal activity in the household is not the person responsible for the ISP account, we look to gather the facts quickly, and expect that the initial defendant will cooperate to resolve the matter and identify the appropriate defendant."

The question of whether this case is over remains to be answered. There’s always the possibility of an appeal, and judging by the RIAA’s determined response to the ruling and assertion of liability on the part of the Fosters, the Empire just might strike back.


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Entertainment Industry :: RIAA

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