X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:In July 2006, Virgin Records and other recording companies filed a copyright infringement action against Cliff Thompson, contending that he used a file-sharing program to illegally distribute digital audio files on which plaintiffs held copyrights. Before filing this action, the companies learned that an Internet user named “gigetteKaZaA” was allegedly distributing hundreds of digital audio files using a file-sharing program. The companies traced the infringer to an Internet Protocol address and eventually to an Internet account registered to Thompson. Once the companies targeted Thompson, they attempted to contact him to resolve the matter for six months before finally filing suit. In January 2006, the companies sent Thompson a letter informing him that they intended to file a suit against him “shortly” for copyright infringement. The letter stated that the companies had gathered evidence that Thompson had infringed their copyrights and asked him to contact them if he had “an interest in discussing this matter, including settlement.” Thompson did not respond to the letter. In succeeding months, the companies attempted to contact Thompson by phone and email. Although Thompson denied receiving these voice messages or e-mails, it is undisputed that he received the companies’ initial letter. In August, Thompson filed an answer and a counterclaim, requesting attorneys’ fees, that accused the plaintiffs of engaging in “sue first, talk later” litigation. The companies moved to dismiss the counterclaim on Sept. 5, 2006. Two days later, Thompson disclosed in his response to this motion that “if anyone downloaded the songs in question it probably would be [my] adult daughter.” Thompson did not, however, tell the companies his daughter’s name. Thompson’s disclosure came more than eight months after the companies initially wrote to him. Through their own efforts, the companies identified Thompson’s adult daughter as Brigette Thompson. On Oct. 6, 2006, Thompson’s attorney confirmed that Thompson’s daughter was the direct infringer who used Thompson’s Internet account. When the companies moved to dismiss their case, Thompson reiterated his demand for attorneys’ fees. The district court granted the former motion and denied the latter. Thompson appealed. HOLDING:Affirmed. The Copyright Act authorizes a court to award reasonable attorneys’ fees to the prevailing party in a suit under 17 U.S.C. �505 of the act. An award of attorneys’ fees to the prevailing party in a copyright action is “the rule rather than the exception and should be awarded routinely.” Nevertheless, the court stated that recovery of attorneys’ fees in such cases is not automatic. Attorneys’ fees, the court stated, are to be awarded to prevailing parties only as a matter of the court’s discretion. In Fogerty v. Fantasy Inc., the U.S. Supreme Court in 1994 listed several nonexclusive factors that a court may consider in exercising its discretion: “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.” The court noted that the district court then applied the Fogerty factors to the facts of Thompson’s case and determined that they weighed against awarding him attorneys’ fees. First, the district court determined that the companies’ suit was not frivolous or objectively unreasonable. Second, the district court concluded that the companies’ motivation in bringing the suit was proper: to protect their copyrights after they discovered copyright infringement of their songs. Third, the district court concluded that awarding Thompson attorneys’ fees would not advance considerations of compensation and deterrence. The district court stated that the companies should not be deterred from bringing future suits to protect their copyrights, because they brought an objectively reasonable suit. In addition, the district court stated that Thompson “delayed the prompt resolution” of this litigation by failing to respond to the companies’ presuit communications and to disclose the identity of the true copyright infringer. The court found no abuse of discretion in the district court’s denial of Thompson’s motion for attorneys’ fees. OPINION:Per curiam; Jones, C.J., and Wiener and Clement, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.