The folks at Recording Industry vs The People and Ars Technica have logged an interesting series of posts about an emerging trend in the Recording Industry Assn. of America's lawsuit campaign against file-sharers. The RIAA has routinely used lawsuits against broadband account holders to determine who actually infringed copyrights through that Internet account (a son or daughter, perhaps, or a roommate -- or even a total stranger taking advantage of an unsecured wireless router). If the suspected infringer turns out not to be the account holder, the RIAA goes on to sue the real infringer and, eventually, drop its claims against the initial target. Increasingly, though, account holders who didn't themselves infringe are fighting back, demanding that suits be dismissed with prejudice and that they be awarded attorney fees. And RIAA lawyers are developing more creative ways to end suits without having to face reimbursement claims.
The trend was fueled by a ruling two months ago from a federal judge in Oklahoma, who held that former RIAA target Deborah Foster should be reimbursed for her attorney fees; all that remains now is for the judge to set an amount. This week, after a federal judge in New York refused an RIAA request to dismiss its claim against Patricia Santangelo impermanently, the two sides agreed this week to dismiss the case with prejudice, teeing up a fight over whether the RIAA should pay Santangelo's legal bills. Also this week, the Electronic Frontier Foundation (a frequent opponent of the RIAA) weighed in on behalf of efforts by another New York target, Rolando Amurao, to bring counterclaims against the record companies. As the EFF put it, the issue in the mistargeted cases is "what consequences should attach to plaintiffs who carelessly net `dolphins' in their mass litigation campaign and then walk away from these cases when a dolphin acts affirmatively to protect itself?"
It's worth noting that the RIAA has defeated most requests for attorney fees. The most recently example
is the case of a New York man who, although not personally sued, had to
fight off an RIAA motion to inspect his home computer. Nevertheless, the Foster case appears to have altered some of the RIAA's tactics. Facing a counterclaim by another Oklahoma defendant seeking to be exonerated, Tallie Stubbs, the record companies' lawyers are seeking to dismiss the counterclaim by making what amounts to a promise not to sue her. If there's no counterclaim, there's no win for Stubbs and no need to pay her lawyer (who happens to have been Foster's lawyer, too).