Reimbursement a first for music industry

WASHINGTON — A federal judge has ordered Capitol Records to pay nearly $70,000 to cover the attorney fees and litigation costs of a woman the company unsuccessfully sued for illegal downloading.

Ruling, issued by a U.S. District Court in Oklahoma, marks the first reimbursement of expenses to a defendant in the music industry’s lawsuits against alleged online pirates.

Case dates back to 2004, when Capitol sued Oklahoma resident Deborah Foster for alleged copyright violation via unauthorized downloading. A year later, Capitol amended the complaint to include Foster’s adult daughter, Amanda, as co-defendant.

Capitol eventually won a default judgment against Amanda Foster but continued to pursue her mother until offering to settle out of court. Failing to reach a settlement, Capitol dropped its case against Deborah Foster.

Foster then petitioned for recovery of expenses, submitting an itemized claim of more than $114,000. After reviewing the claim, the court ruled on Monday that Foster is entitled to $68,685.23.

Capitol had argued that Foster wasn’t entitled to an award since it was her decision to keep fighting the charges rather than accept a settlement. Judge Lee R. West sharply disagreed, stating, “Throughout the course of this litigation, the plaintiffs have alleged that had the defendant appropriately assisted their copyright infringement investigation and litigation, she could have avoided being sued. The court has rejected this argument on numerous occasions and declines to entertain it yet again. The defendant was entitled to litigate the claims the plaintiffs chose to bring against her and … she is entitled to recover reasonable attorneys’ fees.”

The RIAA issued a statement saying, “We respectfully believe that this ruling is in error and is an isolated occurrence. Our interest in these cases is enforcing the rights of the record companies and artists, while 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 do our best to identify the appropriate defendant.”

In the thousands of suits the industry has brought against allegedly illegal downloaders, five other defendants have sought recovery of attorneys’ fees. None succeeded, according to the RIAA.

Ray Beckerman, an attorney who has represented some defendants in the illegal downloading suits, predicted that the Oklahoma court decision “will be seen as a landmark” for several reasons. “The court has indicated that the RIAA’s theory for trying to pin liability on a parent is marginal,” Beckerman said. “The court has held that the RIAA cannot insulate itself from liability for attorneys fees by just dropping the case, and the award will encourage (a) defendants to fight back, and (b) lawyers who have not yet done so to join the fight.”

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