PiracyWatch: Prevailing Defendant Presses Attorney Fees Case at Supreme Court

Posted by Matthew Heller

The music industry's legal assault on piracy has yet to be reviewed by the U.S. Supreme Court. That would change if a Texas man who successfully defended an infringement claim against him has his way.

Cliff Thompson has filed a petition for review asking the court to decide whether "a prevailing defendant in a copyright infringement action should have a presumption of an entitlement to attorney's fees." He moved for fees after the RIAA voluntarily dismissed its infringement case against him, but both the trial judge and the 5th U.S. Circuit Court of Appeals denied an award because the underlying claim was not frivolous, as the precedent of Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), requires.

Some courts, including the 5th Circuit, are not applying the Fogerty criteria in an "evenhanded" manner, Thompson argues, since "Normally there is no mention of 'frivolousness' in awarding attorney's fees to the prevailing plaintiff" and the

absence of uniformity between the circuits, concurrent with an onslaught of litigation by the music companies against internet account holders, only serves to provide innocent defendants with even little, if any, incentive to fully litigate any meritorious defenses they may have, contrary to the policies this Court has recognized.

The Supremes, of course, reject the vast majority of cert petitions. But "Ars Technica" blogger Eric Bangeman thinks Thompson has a decent chance of review. "The fight between the RIAA and alleged copyright infringers is inherently unbalanced due to the vast financial resources available to the record labels," he says. "The risk-reward ratio for defendants is seriously out of kilter, and mandating that a successful defense—even if it comes from the RIAA's decision to voluntarily dismiss a case—results in the record labels picking up the tab would even things out."