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Lawyers across the country who have been defending clients against record companies’ charges of illegal music downloading are closely watching an Oklahoma attorney’s quest for legal fees in a recently dismissed case. They are hoping that an award of fees would discourage what they call the industry’s dragnet approach to filing the suits. “To the extent it will bloody the nose of the recording industry, about what they’re risking when they file these lawsuits, that could potentially have a pivotal effect,” said John Browning, an attorney in Dallas with Browning & Fleishman who is representing seven defendants. Oklahoma City attorney Marilyn Barringer-Thomson and her client Deborah Foster are seeking payment of $50,000 in attorney fees by the record companies, including Capitol Records Inc. and UMG Recordings, that sued Foster in 2004. The companies agreed to dismiss the lawsuit in July after it was shown that Foster didn’t own a computer, though her daughter may have downloaded the music. The request, one of a handful in thousands of cases moving through federal courts, may be taken up in Oklahoma this month after a judge there ruled that Foster was eligible for reimbursement of legal fees, though not necessarily entitled to them. Capitol Record et al. vs. Debbie Foster, No. 04-1569 (W.D. Okla.). Judges in three other cases, two in California and one in Michigan, rejected requests for payment of fees. Virgin Records et al. v. Joseph Darwin, No. 04-1346; Capitol Records et al. v. O’Leary, No. 05-406 (C.D. Calif.); and Priority Records et al. v. Chan, No. 04-73645 (E.D. Mich.). But Foster’s case is different in that Judge Lee West called her the “prevailing party.” That designation makes her eligible for the fees and allowed her attorney to submit a filing for the expenses. In the other cases, the judges rejected the requests after dismissal of the cases. Plaintiffs in the Foster case also include Sony BMG Music Entertainment and Warner Bros. Records Inc. They referred questions to the Recording Industry Association of America, which is coordinating the lawsuits. “In all three of those cases, the courts rejected the defendant’s motion and refused to assess fees against the record companies,” said Steve Marks, general counsel for the Recording Industry Association of America. “There is no reason to believe that this case will have a different result.” Should innocent pay? Attorneys in similar cases say that defendants often don’t have the money to pay for legal fees or the minimum $3,750 settlement the companies demand after threatening to sue at $750 per downloaded song. Chicago attorney Dahlia Saper, of Saper Law Offices, received word last week from the recording companies that they had made a mistake in suing one of her clients, Paul Wilke, who was adamant that songs on his computer had been purchased. Saper said she’s definitely seeking repayment of about $10,000 in fees. “Why should my client have to pay that if he’s clearly innocent?” she asked. Since September 2003, the recording industry has filed lawsuits against 18,200 individuals, and 5,180 have been settled, according to the recording association. None has gone to trial, and the association won’t disclose how many have been dropped. “There’s no hard and fast rule on who we sue and who we don’t,” said Amanda Hunter, a spokeswoman for the association. “Anyone who decides to partake in this particular behavior is at risk,” Hunter said. The companies target people whom their investigators spot using online, peer-to-peer networks to download copyrighted music, according to the association. Then they get the person’s Internet protocol address and subpoena the Internet service provider for the customer’s name after filing an initial lawsuit under “John Doe.” ‘Neutralize the field’ There are inevitably errors in that process, and because there’s no separate research to confirm the information, faulty lawsuits are filed, the defense attorneys say. If Barringer-Thomson wins payment of her legal fees, it may help other attorneys do the same. To the extent that it dampens the record industry’s campaign, it may force the companies to investigate more thoroughly each targeted individual, the defense attorneys said. “It’s the only thing that’s going to sort of neutralize the playing field,” said Lory Lybeck, an attorney with Lybeck Murphy in Seattle who is working on two cases. Lybeck said he thinks both of his cases are likely to be dismissed. If that happens, he said, he’ll ask his clients whether they want to try to recoup legal costs, which may be $50,000 per case or more.

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