"This case is about the ability of an innocent defendant accused of copyright infringement to defend himself in court, litigate his defenses, and, if successful, recover his attorney's fees to the same extent as a prevailing plaintiff would under the same circumstances," argued Cliff Thompson of San Antonio, Tex. in his petition.
The RIAA filed a lawsuit against Thompson in 2004, but later asked to drop the case. At the time, the RIAA alleged that Thompson's adult daughter, Brigette, was the one at fault. Thompson said he spent around $7,500 to defend himself.
The Fifth Circuit upheld a trial judge's decision denying Thompson attorney's fees, saying that the lawsuit was "objectively reasonable" and that Thompson delayed its resolution by "failing ... to disclose the identity of the true copyright infringer."
But defense lawyers say that the RIAA shouldn't have sued Thompson unless it had solid grounds to believe he was responsible for any piracy.
"It has consequences to be named as a defendant in a lawsuit," says Ray Beckerman, a New York City defense attorney who authors the blog RecordingIndustryVsPeople.com. For instance, he says, getting hauled into court can result in a black mark on people's credit records.
Beckerman, who was not involved in Thompson's case, adds that the RIAA has a pattern of filing suit first and asking questions later. "It wants to use a lawsuit to conduct its investigation," he says.
The RIAA typically targets individuals after an investigator finds evidence linking a particular IP address to uploading activity on a peer-to-peer site like Kazaa. Often, however, the subscriber that's linked to the IP address isn't the one who's responsible for any copyright infringement.
Thompson argues in his petition such tactics force subscribers like himself to choose between defending an expensive lawsuit or settling the case. Since 2003, the record industry has targeted around 26,000 individuals, but in most cases offers them the chance to avoid a lawsuit by paying a fine of $3,000 to $4,000. Some defense lawyers say that even innocent people sometimes choose to pay those fines rather than fight a lengthy legal battle that could potentially result in large attorney's fees.
So far, at least two defendants have successfully prevailed in their bids for attorney's fees after the RIAA dropped a lawsuit against them. Courts have recently said that Oklahoma resident Debbie Foster as well as Oregon resident Tanya Andersen now pursuing a class-action lawsuit against the RIAA) are entitled to attorney's fees.
The RIAA declined to comment.