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Universal, Pay Those EFFing Lawyers 335

Posted by CmdrTaco
from the they-can-afford-it dept.
Slashdot frequent contributor Bennett Haselton writes "The EFF is seeking over $400,000 in attorney's fees from Universal Music Group after Universal sent a DMCA takedown notice to YouTube, demanding the removal of a video posted by user Stephanie Lenz. Lenz had posted a video of her toddler dancing to a 30-second clip of the Prince song "Let's Go Crazy"; after Universal sent the takedown notice, the EFF sent YouTube a counter-notice on behalf of Lenz arguing that the video was fair use, and YouTube restored it. Now the EFF is asking the judge to award them attorney's fees for their work." Use your magical clicking device below to read many more words.

Section 512(f) of the DMCA says pretty clearly that anyone who "knowingly materially misrepresents under this section... that material or activity is infringing... shall be liable for any damages, including costs and attorneys' fees", which would seem to apply here; the EFF argues that Universal should have reasonably known that the video obviously constituted fair use. In a Law.com article about the case, attorney Kelly Klaus, representing Universal, countered that "Congress also said that there was another remedy, which is the counter-notice procedure, which is what happened here." But this seems to miss the point -- the DMCA says that the remedies are the counter-notice procedure and an award for attorney's fees. (Klaus's firm did not respond to requests for comment for this article.) Anyway, as EFF staff attorney Corynne McSherry points out, if there were no possible award for attorney's fees against copyright holders who make false accusations, then there would be no disincentive for copyright holders not to file frivolous accusations in the first place.

I'm an EFF member and support their request for attorney's fees, but let's play devil's advocate. Suppose you were an indie musician who sold your songs online, and you found a number of YouTube videos that used your song without permission, so you sent a long list of DMCA takedown notices to YouTube. Included in that list was one video that used only a brief portion of your song, short enough to count as fair use. Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a bona fide copyright infringement?

On the other hand, if the EFF doesn't get their attorneys fees, then they have to eat the cost of the work they did, and that doesn't seem fair either.

The problem is that once you have a $400,000 bill on the table, someone has to pay it, which punishes one or both parties usually vastly out of proportion to any wrongdoing. ($400,000 is almost half of what Reebok had to pay when one of their lead-tainted bracelets killed a child.) Huge attorney's fees awards also limit access to the court system for plaintiffs who might have a reasonable case, but can't afford the risk of having to pay attorney's fees if they lose, and for defendants who might also have a reasonable case, but are under pressure to settle quickly to avoid the risk of a huge attorney's fees award against them.

This suggests an economics / game theory problem: Could you come up with a system that takes into account the incentives of parties on both sides, and that prevents huge legal bills from being generated?

Now, any argument about the legal system usually raises two kinds of objections. The first is that the existing system "works". Well, in many ways it does, but everybody also knows that wealthy corporations and individuals enjoy a huge advantage in the court system, even though courts are supposed to treat all parties equally. So at least in that respect it doesn't "work" the way it's supposed to. The second objection is that it's too hard to change the rules and traditions that are built into legal proceedings, so it's better just to work within the system. True, but that's not the question I'm asking. I'm posing it as a logical brainteaser: If you had carte blance to modify the way that legal disputes were held, could you do it in a way that respects the rights and interests of all parties and still minimizes the legal fees incurred? (Whether I'm right or wrong, my goal is to make this argument more interesting to mathematicians and game theorists, than to lawyers; otherwise, I've failed.)

From a game-theoretic point of view, you might argue that large attorney's fees serve a useful purpose by discouraging frivolous lawsuits. The problem is that the fees don't just discourage frivolous lawsuits but also non-frivolous lawsuits where there's a reasonable chance of losing. On the other hand, a person who is already broke would have little disincentive to file a frivolous lawsuit, since the worst that can happen is that they'd get hit with a huge award for attorney's fees and have to declare bankruptcy, which they might consider worth the risk for a small shot at a million-dollar payout. So assume that attorney's fees are not themselves the best way to deter frivolous lawsuits, and that avoiding large fees in general is still a desirable thing. How do you design rules to achieve that?

I think you could save a lot of money by enforcing a rule that a lawyer is not allowed to seek attorney's fees from the other side for arguing any points that the other side offered to concede anyway. So the incentive would be that if party A's lawyer concedes some point of fact or point of law, and party B ultimately wins the case and an award for attorney's fees, then party B is not allowed to seek attorney's fees for arguing the point conceded by party A's lawyer.

In all of my legal cases where the other side was represented by a lawyer who was getting paid by their client up front, it was clear from reading the other side's briefs (and my own lawyers agreed with me) that opposing counsel had spent a lot of time spinning their wheels and arguing obvious or irrelevant points before getting to the crux of the dispute. If their client wants to pay them for that busy-work, that's between them and their client, but if they had won the case and an award for attorney's fees, I would have objected that they shouldn't be allowed to charge us for time they spent arguing points that we would have given to them anyway. The hypothetical savings from implementing and enforcing this rule, are not trivial.

So how does game theory predict that the two sides would behave under this rule? Suppose MegaCorp is suing or being sued by IndieActivist. MegaCorp's first priority is to win, and if possible to hit IndieActivist with a huge award for attorney's fees to discourage other would-be IndieActivists. MegaCorp doesn't want to lose, but if they do lose, they don't much care about the attorney's fees award they would have to pay to IndieActivist's lawyers. In this scenario, they would be expected to concede very little, disputing trivial points in order to drag out the case as long as possible, hoping that IndieActivist's lawyers would run out of time or money and pressure their client to settle. In other words, MegaCorp would behave about the same as they would under the existing rules.

For IndieActivist, on the other hand, their first priority is to win, but they also care very much about not having to pay a staggering award for attorney's fees if they lose. So they would be expected to concede any points of fact or law, even if favorable to MegaCorp, if those points are so obvious that they don't think the judge would be likely to rule in their favor on those questions anyway. This way, even if IndieActivist loses and has to pay attorney's fees to MegaCorp, those fees would be limited to the time spent arguing the actual point of disagreement that formed the crux of the lawsuit.

Suppose, for example, that Universal had actually sued Lenz for violating Prince's copyright by using a 30-second excerpt of his song in her video. Lenz or her lawyers could have filed a brief conceding all the obvious points that they would expect Universal's lawyers to make: Prince was the holder of the copyright, the copyright had been filed with the Copyright Office, Lenz never sought permission for using the recording, etc. Very quickly, the whole case could be distilled down to: "Show this video to the judge and let them decide if it qualifies as 'fair use'." Any effort spent arguing any points beside that, is wasteful. And if the legal system encourages lawyers to rack up billable hours arguing other points, then the system is wasteful. Concede the obvious, and everybody's costs are kept under control.

This only partially addresses the problem of large attorney's fees, because it still leaves the fees that are generated in the process of arguing points that the other side wouldn't concede. Solving this problem is much harder, because while you can simply eliminate the work that's spent on arguing points that the other side would give to you anyway, you can't eliminate the work spent on points that are genuinely in dispute, you can only try to make that work shorter and cheaper. I've argued for my own fairly complicated remedy in a separate article, but my main point was that legal costs aren't driven up so much by the complexity of the law as by the ambiguity in it. The Windows programming interface, after all, is also very complex, but if you can write a clear description of what you want a simple program to do, you can often get a programmer to write the program for you for dirt cheap. In arguing a legal case, on the other hand, the number of possible outcomes grows exponentially with each point of ambiguity in the law where there's no way to predict how the judge will interpret a particular rule.

But still, even if you can't reduce the ambiguity in how a legal question will be interpreted, you can avoid a lot of unnecessary attorney's fees by distilling the case just down to that particular question. Is it fair use to use a 30-second clip of Prince's song in a video of a dancing toddler? Let the judge decide. But if that's the one and only point that both sides can't agree on, then neither side should be able to bill for time spent arguing about anything else.

Perhaps someone mathematically or logically inclined can come up with a better algorithm for avoiding the billing hours generated by arguing the obvious. I'm not entirely happy with my own solution, because it still allows MegaCorp to concede absolutely nothing, and to try and bleed IndieActivist dry by forcing them to argue even the most trivial points. IndieActivist's lawyer could be reimbursed for that time if they win and get an award for attorney's fees, but they might run out of money or patience before then. To counter this tactic, you could allow either side to seek penalties for Frivolously Arguing The Super-Obvious. If IndieActivist's lawyer wants MegaCorp to concede an obvious point and MegaCorp won't do it, IndieActivist could seek a FATSO penalty, and the judge could decide whether to award them that penalty if the point is really and truly obvious, without deciding on the merits of the case as a whole. The penalty doesn't have to be large enough to hurt MegaCorp, it just has to be large enough to compensate IndieActivist's lawyer for their time, so that MegaCorp can't run them into the ground by forcing them to argue every point unnecessarily. However, economic game theorists might think of some unintended consequence of the FATSO rule. Could MegaCorp flood IndieActivist's lawyer with a gigantic list of requested concessions, so that if IndieActivist's lawyer screws up and forgets to concede one of the points that the judge turns out to consider "obvious", MegaCorp could hammer them with a FATSO award too? It's hard to anticipate all the ways that either party might abuse a new rule of the game.

Meanwhile, under the existing system, while it may be unfair to Universal in some cosmic sense that they have to pay out $400,000 for sending one mistaken DMCA takedown notice, it would be more unfair to force the EFF to eat those costs, and in any case the DMCA does clearly allow for an award of attorney's fees. But it would be better for everyone in the long run -- especially for the EFF and the kind of relatively powerless clients that they usually represent -- if there were more ways to keep legal costs from spiraling out of control in the first place.

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Universal, Pay Those EFFing Lawyers

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  • by eldavojohn (898314) * <eldavojohn AT gmail DOT com> on Monday January 25, 2010 @11:18AM (#30891432) Journal

    This suggests an economics / game theory problem: Could you come up with a system that takes into account the incentives of parties on both sides, and that prevents huge legal bills from being generated?

    Not with copyright and fair use. Fair use is deliberately ambiguous [wikipedia.org]. This is the reason why huge legal bills can be generated over it. Because it is ill defined. No amount of logical, sane Markov modeled state diagrams could convince some people that they are now entering a state of expected loss on a case.

    Allow me to present what will undoubtedly be a very unpopular viewpoint here.

    "Let's Go Crazy" is a 279 second track off of Purple Rain. Most Copyright lawyers consider 'safe harbor' for fair use to be one tenth of a song or, if longer than five minutes, thirty seconds (even Wikipedia [wikipedia.org] implements this). In a very pedantic analysis, had she used 27.9 seconds of the song instead of the quoted 30 then there would be no grounds for take down, let alone a court case.

    Now lets say you have a huge catalog of songs you'd like to defend. You're a big mega corporation so what you do is you hire developers to analyze songs for fingerprints and -- funny how pedantic algorithms get to be -- submit anything over the 'safe harbor' limit to Control Gate C (that being the legal arm which churns out thousands of take down notices).

    I'd like to see Universal burned by their mechanization of this process but there's your unpopular defense of having to take this to court based entirely around popular 'safe harbor' limits and deliberate ambiguity of the law. And I guess this could be seen as Universal having to try to draw the real line with precedence for court case established 'safe harbor.' Universal could fear popular 'safe harbor' limits expanding if they don't fight these things.

    "knowingly materially misrepresents under this section..."

    The question is -- given the above -- were they really?

    • by paiute (550198) on Monday January 25, 2010 @11:37AM (#30891806)

      Now lets say you have a huge catalog of songs you'd like to defend. You're a big mega corporation so what you do is you hire developers to analyze songs for fingerprints and -- funny how pedantic algorithms get to be -- submit anything over the 'safe harbor' limit to Control Gate C (that being the legal arm which churns out thousands of take down notices).

      If I am the CEO of a mega corporation, then I know the value of good will to generate goodwill and I will put some kind of human at Control Gate C who will put a stopper on the mindless sharks in my legal department who would sully my business' positive reputation by suing dancing toddlers.

      • by Scutter (18425) on Monday January 25, 2010 @11:48AM (#30891992) Journal

        Now lets say you have a huge catalog of songs you'd like to defend. You're a big mega corporation so what you do is you hire developers to analyze songs for fingerprints and -- funny how pedantic algorithms get to be -- submit anything over the 'safe harbor' limit to Control Gate C (that being the legal arm which churns out thousands of take down notices).

        If I am the CEO of a mega corporation, then I know the value of good will to generate goodwill and I will put some kind of human at Control Gate C who will put a stopper on the mindless sharks in my legal department who would sully my business' positive reputation by suing dancing toddlers.

        As would I, which is probably why neither of us are (or ever will be) CEO of a mega corp.

        • by Corydon76 (46817) on Monday January 25, 2010 @05:26PM (#30897014) Homepage

          Now lets say you have a huge catalog of songs you'd like to defend. You're a big mega corporation so what you do is you hire developers to analyze songs for fingerprints and -- funny how pedantic algorithms get to be -- submit anything over the 'safe harbor' limit to Control Gate C (that being the legal arm which churns out thousands of take down notices).

          If I am the CEO of a mega corporation, then I know the value of good will to generate goodwill and I will put some kind of human at Control Gate C who will put a stopper on the mindless sharks in my legal department who would sully my business' positive reputation by suing dancing toddlers.

          As would I, which is probably why neither of us are (or ever will be) CEO of a mega corp.

          Actually, there's a very well-known CEO who considers exactly that, and he has been, at one time or another, considered the richest man in the world: Warren Buffett. He famously once said, "It takes 20 years to build a reputation and five minutes to ruin it. If you think about that, you'll do things differently."

      • by dwandy (907337) on Monday January 25, 2010 @11:51AM (#30892042) Homepage Journal

        If I am the CEO of a mega corporation, then I know the value of good will to generate goodwill...

        citation needed.

      • by Lumpy (12016)

        how about firing the lawyer, and then suing him for all potential lost revenue. I personally prefer public stockades where we can go and physically assult them with rotten fruit and a big paddle, but I'm an old fashioned guy.

      • Re: (Score:3, Informative)

        by dr_dank (472072)

        If I am the CEO of a mega corporation, then I know the value of good will to generate goodwill and I will put some kind of human at Control Gate C who will put a stopper on the mindless sharks in my legal department who would sully my business' positive reputation by suing dancing toddlers.

        That's exactly the reason why these suits are usually filed by the RIAA. The RIAA takes the heat for playing bad cop and the underlying content producer gets to keep their name away from the lawsuit.

      • Re: (Score:3, Funny)

        by interkin3tic (1469267)

        my business' positive reputation by suing dancing toddlers

        You obviously didn't see the video. That kid ain't got no moves. Universal was trying to do us all a favor.

    • by Nicolas MONNET (4727) <nicoaltiva@@@gmail...com> on Monday January 25, 2010 @11:48AM (#30891986) Journal

      The song was barely audible, so much so that I (and I guess many others) wondered how they found out.

    • by Toonol (1057698) on Monday January 25, 2010 @11:50AM (#30892018)
      "Let's Go Crazy" is a 279 second track off of Purple Rain. Most Copyright lawyers consider 'safe harbor' for fair use to be one tenth of a song or, if longer than five minutes, thirty seconds (even Wikipedia implements this). In a very pedantic analysis, had she used 27.9 seconds of the song instead of the quoted 30 then there would be no grounds for take down, let alone a court case.

      There's no basis in law for those figures. The law is deliberately constructed to NOT have those sorts of arbitrary limits. It's a mistake to be pedantic over a rule-of-thumb estimate that has no legal weight. There are cases where a full song would be fair use, there are cases where a fifteen-second clip would be infringement.
      • by Tim C (15259)

        And who would decide things on such a case by case basis? I believe there is an institution created to do just that...

      • Re: (Score:3, Informative)

        by DeadPixels (1391907)
        As far as I know, you're correct in that those figures aren't specified by law. The really sad part here is that if the video had been 2.1 seconds shorter, she would have been well within the widely-accepted standard for fair use - perhaps she's still legally in the right, but it would have been a whole lot easier to argue if she could use the 30-second/10% guideline to support herself.

        Generally, I would say that this still falls under fair use, because she isn't attempting to profit from the song in any w
        • by nabsltd (1313397) on Monday January 25, 2010 @01:14PM (#30893304)

          The really sad part here is that if the video had been 2.1 seconds shorter, she would have been well within the widely-accepted standard for fair use - perhaps she's still legally in the right, but it would have been a whole lot easier to argue if she could use the 30-second/10% guideline to support herself.

          There is no "widely accepted standard" of "30-seconds/10%" for fair use of a musical work. All cases where fair use is a defense are judged solely on their own merits, with no hard and fast rules.

          This is why there are rulings of "infringement" for sampling 5 seconds of a 5 minute song, and rulings of "not infringing" for using every second of a song.

          It's all subjective, and until people start realizing this, they will let the big corporations push them around, since it is in the best interest of those corporations to make people believe there are hard and fast rules when none actually exist.

          • Re: (Score:3, Insightful)

            by Teun (17872)

            It's all subjective, and until people start realizing this, they will let the big corporations push them around, since it is in the best interest of those corporations to make people believe there are hard and fast rules when none actually exist.

            I hope you realise(d) you placed the word 'corporations' in the sentence where in a less broken legal system would have been written 'laws'.

    • by Microsift (223381)

      Or is it 27.9 seconds from the movie Purple Rain, my recollection of the Let's Go Crazy video is that it is a bunch of clips from the movie. Can a movie reviewer show 30 seconds of a movie that includes 30 seconds of a song playing in the background?

    • by joocemann (1273720) on Monday January 25, 2010 @12:14PM (#30892452)

      Laws are written by lawyers, voted in by politicians (80% of which are/were lawyers), and judged by judges who were lawyers.

      Loopholes and vague wording are things that lawyers are GOOD at creating in our system. They are lawyers, they are supposed to be smart enough to make laws very clear; yet wherever you look, laws are written with loopholes and vague wording that permit loads of points of contention to which lawyers must be hired to resolve....

      The saddest part of the whole construct being that it is impossible to remove without revolution, impossible to prevent with any form of government, and that many/most lawyers feel some form of 'good' for their part in the system. I'll never forget the wonderful response I got from a lawyer about my criticism of the participation of lawyers in obvious frivilous/wrongful lawsuits.... Her response was what I've heard many times, and never fails to amaze me: "I am a lawyer. It is the person I represent who is asking me to do these things. I am doing nothing wrong; I am doing my job. Blame the person I represent." Right (sarcasm). Like your participation in the whole thing has *nothing* to do with what most would agree to be a heinous act of harassment/blackmail. No... You've done nothing wrong... You're just the tool...

      I'd like to compare it to the idea that guns don't kill people... people kill people.... and that would make sense (which is basically her argument), except for the glaring fact that in the lawyer's case, the gun has an educated and possibly moral brain of it's own and is able to freely choose whose hands it is placed in and what targets it would be aimed at, how much damage it would do, etc.

      I recall she then argued that I'd be 'sucking her d***' (yes, it didn't make senese) some day when I actually needed a lawyer. This is horrible because of course I would want a lawyer when I actually *need* one. That would be, at least, a case where it isn't so obviously frivolous/wrongful --- a case where most people would agree a lawyer is needed. And so this is horrible because she thought that because I (or others) would *need* her someday, and that she convinced herself to be morally distanced from her participation in wrongful lawsuits, she ultimately expressed that she (lawyers) is of the requisite benevolent gatekeepers to justice.

      Sure... lawyers can do no harm... (sarcasm). I wonder how many law school graduates creamed their pants when they saw how vague the Americans with Disabilities Act was when it passed. Clearly written laws give no room for lawyers because the people know what is expected.

      • Re: (Score:3, Insightful)

        by martas (1439879)
        so, there's a lawyer conspiracy to create jobs for lawyers?
      • Re: (Score:3, Interesting)

        by Anonymous Coward

        IAAL.

        I used to think the same thing-- that laws could be crafted in such a way that they are clear and effective, with no wiggle room or room for discretion, yet still be effective laws. This is false.

        No matter what law you have, and no matter how simple it is, it will never be perfect.

        Try an exercise. Try to think of the simplest law you can, and codify it (e.g., driving over 50 mph is a violation.). Now try to think of some exceptions when that particular rule should not apply (e.g., driving over 50 mp

    • Re: (Score:3, Interesting)

      by SpeedyDX (1014595)

      Parent is absolutely right. Section 512(f) is for people who are deliberately and clearly being assholes and abusing the court process. Due to the ambiguity of the relevant laws, it's entirely reasonable that Universal try to defend their copyright. This is one of the very reasons why courts exist - to try to figure out grey-area cases like these that do not fall explicitly on one side of the law or the other.

      Now, thankfully, the EFF was successful in their counter-claim, but that doesn't mean that Universa

      • Re: (Score:3, Insightful)

        by daveime (1253762)

        I see some posts already about how $400,000 is a lot of money for the letter, but they're completely disregarding the painstaking work and research that went into drafting that letter.

        Oh come on, painstaking work and research that amounts to $430,000 (the actual amount claimed in lawyers fees) ? The EFF only sued last July, so that amount equates to at best 6 months of work ... of course we all know how the legal system works, so lawyer A files some document, lawyer B sits on it for two months before respon

    • The question is -- given the above -- were they really?

      It's a video of a baby jumping up and down with awful sound quality. Frankly, I'm disgusted that the lawyers involved were not reprimanded for wasting the courts time.

      As I see it, the biggest problem with DMCA takedowns is that they don't involve the courts. Takedowns become a giant bluffing game with lawyers puffing up arguments with legalese and threats in an effort to browbeat their victims. It should be up to the courts to reign in this sort of behavior before all respect for the legal system falls apart. Unfortunately, judges appear to be all too willing to condone and even support such nonsense. There is a great rot in Western judiciaries.

    • by nabsltd (1313397) on Monday January 25, 2010 @01:08PM (#30893212)

      Most Copyright lawyers consider 'safe harbor' for fair use to be one tenth of a song or, if longer than five minutes, thirty seconds (even Wikipedia [wikipedia.org] implements this).

      I'm not sure what "most copyright lawyers" believe, but I do know that there has never been any codified limit on the portion of an audiovisual work that makes "fair use" an unassailable defense.

      The bogus 30-second limit has been used countless times in references that know nothing about copyright law, similar to the way that 10 or 25 words or "one sentence" or any other essentially random number is used as the layman's criterion for fair use when quoting text.

      The four pillars that make up fair use are:

      • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
      • the nature of the copyrighted work
      • the amount and substantiality of the portion used in relation to the copyrighted work as a whole
      • the effect of the use upon the potential market for or value of the copyrighted work

      In a particular case, if the other three far outweigh the "amount and substantiality", then it's still fair use, even if you are using the entire original work.

  • by jpmorgan (517966) on Monday January 25, 2010 @11:20AM (#30891484) Homepage

    $400,000 for writing a letter? I like the EFF and I sort of agree that it's not fair they have to eat the costs of defending a fraudulent claim. But it was their choice to send the notice chiseled on a solid gold tablet.

    • by Anonymous Coward on Monday January 25, 2010 @11:27AM (#30891626)

      I dunno. If a single song is worth tens of thousands of dollars, it doesn't seem that far-fetched.

    • by BobMcD (601576) on Monday January 25, 2010 @11:39AM (#30891838)

      Forgive me if you've heard this put better, but...

      A manufacturing plant sees one of its production machines seize up in the middle of a work day, bringing the entire plant to a halt. Knowing they were in deep trouble, they call in the best repair technician they can get. The man arrives on scene, assesses the situation, and moments later produces a hammer from his tool bag. With one sharp rap on the side, the machine returns to life and the plant gets to go back to production. The technician leaves, promising to send an invoice later.

      The original invoice arrives and reads like so:

      Emergency Equipment Maintenance - $2000

      The accounting department is, understandably, disappointed by this amount and presses back for a 'detailed invoice' that can describe how the amount of $2000 was determined. The technician was only happy to oblige:

      Hitting the seized machine with a hammer - $1
      Knowing where to hit it - $1999

      So while the cost of writing a letter is insignificant, the cost of being an attorney, running a firm, and generally being available to take up this sort of case is likely not so trivial. We could compare similar firms' rates, but stating that 'attorneys charge a lot' is sort of a non-starter.

      • by TheRaven64 (641858) on Monday January 25, 2010 @11:48AM (#30891994) Journal
        $400K is more than ten times the median annual salary in the USA. You can hire a competent lawyer to work for you full time for a year for less than that.
      • by mea37 (1201159) on Monday January 25, 2010 @11:49AM (#30892012)

        The fact remains that when I hired a lawyer a few years back, he wrote two - count them, two - letters on my behalf, and the total bill was only a couple hundred bucks. The issue was considerably more complex than an "obvious" abuse of copyright on fair use grounds.

        Note - I put "obvious" in quotes because I don't believe fair use as a defense is often all that clear-cut. This comes down to you can't have it both ways. If they claim the case is obvious enough that Universal was abusing the system - i.e. that the "obvious misrepresentation" clause comes into effect - then it must also be obvious enough that they shouldn't have racked up major research hours on it. That means they only get to bill for the time it took to literally write the letter.

        They are trying to stick it to the man, end of story. To get a feel for how outraged you should be, ask yourself whether the EFF will charge their client $400,000 should the award be denied. If so, they'd be screwing the little guy; if not, then requesting the award is an abuse of the system.

        • This happens all the time in civil suits. Generally, the plaintiff's atty will bill the client for reimbursable costs plus a percentage of the judgement. In this case, the firm may bill the woman for costs (printing, courier, telephone, etc.) which might come to a couple hundred dollars. In the civil world it would be a speculative suit on the part of the law firm. This is where the "rich" firms make their money - it's not in billing their "paltry" $200-300/hr rates.

      • by nomadic (141991) <nomadicworld@NOSpam.gmail.com> on Monday January 25, 2010 @11:53AM (#30892062) Homepage
        So while the cost of writing a letter is insignificant, the cost of being an attorney, running a firm, and generally being available to take up this sort of case is likely not so trivial. We could compare similar firms' rates, but stating that 'attorneys charge a lot' is sort of a non-starter.

        As an attorney I can assure you there is no legitimate scenario where the EFF honestly had to expend $400,000 worth of work to write a letter. Maybe, MAYBE, $2,000 if you throw in a few hours of research, which the EFF shouldn't have to do considering this is what they specialize in. A top-of-the-line civil litigator bills maybe $600 an hour, and as much as we like the EFF people they are not top-of-the-line civil litigators.
    • Re: (Score:3, Insightful)

      by poetmatt (793785)

      It's quite important that they get the fees for abusing the DMCA. Lots of companies have tried and with a case that is clear about it, could set an important precedent to stop people from just doing bogus DMCA takedowns all day.

    • by Smallpond (221300) on Monday January 25, 2010 @12:09PM (#30892332) Homepage Journal

      $400,000 for writing a letter? I like the EFF and I sort of agree that it's not fair they have to eat the costs of defending a fraudulent claim. But it was their choice to send the notice chiseled on a solid gold tablet.

      The RIAA made multiple copies of the letter.

  • by jimicus (737525) on Monday January 25, 2010 @11:20AM (#30891486)

    Run this by me again.

    EFF's lawyers charged $400,000 for checking to confirm that the video was covered under fair use then writing one letter to that effect? That's not legal advice, that's extortion.

    • by duguk (589689) <dug@@@frag...co...uk> on Monday January 25, 2010 @11:23AM (#30891530) Homepage Journal

      Run this by me again.

      EFF's lawyers charged $400,000 for checking to confirm that the video was covered under fair use then writing one letter to that effect? That's not legal advice, that's extortion.

      I presume they're trying to make a point to the extortionate claims that Universal et all charge. Good on them. Hopefully Universal don't pay it and end up in breach of these terms.

      • by HappyHead (11389) on Monday January 25, 2010 @11:59AM (#30892174)

        Actually, I think this is very much related to the RIAA's over-blown claims.

        I think they've filed this request with the intention of Universal protesting it, calling the fees outrageous, and doing all of the research for the EFF on why fees that large are wrong in order to get them stopped.

        Then the EFF can take that case work, and apply it in the next RIAA trial they're involved in, since in the US, a lot of law is built on precedent, and that would make a very useful precedent indeed.

        • 1: Universal (RIAA member) gets fees chopped down massively
        • 2: RIAA sues some college kid and wins massive awards including overblown attorney fees
        • 3: EFF presents case precedent from RIAA member indicating those fees are excessive
        • 4: RIAA fees get shot down too.
        • by Tim C (15259)

          I rather suspect that the vast majority of the fines involved in infringement cases are due to the upper limit of $150,000 dollars per infringement [purdue.edu]; next to that the attorneys' fees are going to be pretty small.

          • by HappyHead (11389) on Monday January 25, 2010 @12:38PM (#30892832)

            True, the fees themselves don't stack up anywhere near as much as the other parts of the awards, but they're separate items, and if an easy opportunity to knock one of them down comes by, I don't see why they shouldn't take it - the worst that could happen is that Universal sees through the plan, and just forks over the $400k in order to preserve the RIAA's lawyer fees, in which case the EFF has an extra $400k to throw at defending people from them.

            Just because there are two parts to a problem and one is bigger doesn't mean you should completely ignore the "smaller" (yet still way overblown) part. If challenges to the $150k per song are successful in getting it dropped to the $0.99 that it's actually worth, that would still leave the average defendant stuck with hundreds of thousands in lawyer's fees, and the lawyers launching the suits making boatloads of cash for doing it - meaning that even with reduced "per infringement" awards, the RIAA is still free to bankrupt anyone who challenges them. Getting their lawyer's fees slashed hard will make it less profitable for the RIAA's legal team, and also cuts off part of their means of intimidating people into submission.

        • by Kabuthunk (972557) <<moc.liamtoh> <ta> <knuhtubak>> on Monday January 25, 2010 @01:01PM (#30893104) Homepage

          Nah, I see it coming to a different conclusion.

          1. Universal argues excessive fees - wins
          2. RIAA sues college kid for more money than he could make in 200 years.
          3. EFF argues fees are excessive, is shot down.
          4. Current standards of "law and common sense only apply to the poor - the wealthy are above the law" are upheld.
          5. Everyone not a giant corporation or in personal possession of more money than most small countries loses.

    • by NFN_NLN (633283) on Monday January 25, 2010 @11:27AM (#30891620)

      Run this by me again.

      EFF's lawyers charged $400,000 for checking to confirm that the video was covered under fair use then writing one letter to that effect? That's not legal advice, that's extortion.

      More precisely it's counter-extortion. I agree $400,000 is excessive... I hope they win $10,000 or whatever the minimum is to make it profitable for the EFF to defend the common person. Most people would just fold and take down a fair-use clip rather than risk bankruptcy so the EFF is necessary.

    • by Anonymous Coward on Monday January 25, 2010 @11:27AM (#30891632)

      Remember - these are punitive damages intended to discourage further fraudulent DMCA claims. You know, like the punitive damages of $x,xxx per song that the RIAA collects on a regular basis.

    • by DreamsAreOkToo (1414963) on Monday January 25, 2010 @11:30AM (#30891680)

      Well, if a song is worth $180,000, then I can see how the letter is worth $400,000.

    • Run this by me again.

      EFF's lawyers charged $400,000 for checking to confirm that the video was covered under fair use then writing one letter to that effect? That's not legal advice, that's extortion.

      You don't take into account all the time they spent thinking about writing that letter and thinking about thinking about writing the letter and then of course there is the time they spent talking with other lawyers about writing the letter.

    • by betterunixthanunix (980855) on Monday January 25, 2010 @11:44AM (#30891914)
      Hey, the RIAA claims that they need to deter downloaders by imposing excessive fees; this is just more of the same, but in the other direction. The EFF's demand for that much money is a deterrent to people who think that it is OK to abuse the legal system and issue unfair takedown notices. Hopefully, this will have the effect of shocking the government into action and reducing the damages in copyright cases (once they start targeting individuals, the damages should be much, much smaller), but I have a feeling that this sort of activity will continue for many more years.
    • by inKubus (199753) on Monday January 25, 2010 @11:45AM (#30891938) Homepage Journal

      Well, to make it fair, the punative damages should be assessed based on the annual income of the defendant. Punative damages are the punishment for wasting everyone's time. If it was the little guy wasting Sony's time, they would then feel the same level of sting as if Sony was wasting the little guy's time.

      They do this with speeding tickets in Switzerland--the fine is assessed as a percentage of annual income.

    • by adamstew (909658)

      how about $1,000 for writing the letter and the work involved in that. Then when they asked for that money, Universal declined. So they had to file a lawsuit which racks up much more legal expenses. So, $1,000 for the original letter (about 4-5 hours of an attorney's time), and $399,000 for the cost of pursuing the original $1,000 in court.

    • by steelfood (895457)

      It cost take a lot of money to get those legal degrees in order to write the counter-notice. I mean, if you were a layman and your video got taken down by the DMCA, would you know how to produce the appropriate response (besides running around the intarwebs screaming your head off about the evils of the DMCA)? I didn't think so.

    • by canajin56 (660655)
      Remember the argument as to why file sharers have to pay a million dollars for sharing one CD? Because you only catch one, but millions of people are doing it, so they have to pay for all the others, too, to be fair to the copyright owner! Lots of companies and firms send out LOTS of completely bogus DMCA notices, and the EFF deals with a large number of them. So, fair's fair, why can't they charge Universal all their legal fees for all of the bogus notices? They should also charge for all the lobbying
  • by MikeRT (947531) on Monday January 25, 2010 @11:22AM (#30891514) Homepage
    that don't see deep cultural penetration of their products as an unqualified good. They could take a cue from Microsoft and learn that even piracy brings value by making your product be what's on people's minds in a desirable way. Yes, Microsoft may lose business, but they maintain marketshare. Likewise, a label whose songs are remixed in fan videos or used as background music in a YouTube video is keeping its product out there at no cost to itself, which at least keeps it in the minds of more music buyers.
    • by betterunixthanunix (980855) on Monday January 25, 2010 @11:30AM (#30891678)
      "Yes, Microsoft may lose business"

      I am not even convinced that much is true. Is there any evidence that people who use unlicensed copies of Windows would have purchased a license had there been no unlicensed copies available? Is there any evidence that a person who downloaded a song from a filesharing network would have paid for their music had there been no filesharing networks available? These are very difficult claims to prove, even if they appear to make sense.
    • that is, creators dumping their content online for free

      in effect, the same point as radio airplay: free advertising

      then financial benefits come in the form of warm bodies showing up to your concert gigs, more fame (since there's no barrier to consumers enjoying your content), and then with enough fame, new ancillary streams of revenue like endorsements, personalized content, movie soundtracks, etc.

      granted, this system will only reward a few, those who are truly fame worthy. not every artist will benefit fro

  • Did I miss something or is the summary just leaving something out? $400,000 to write a single takedown notice, which youtube complied to immediatly? Again, I haven't read the whole wall of text yet, but that seems like a very unreasonably number for that kind of service; you have to wonder if the cost would be less if they weren't expecting to recoup the fees from Universal.

    • $400,000 to write a single takedown notice, which youtube complied to immediatly?

      Part of the problem with the DMCA is that service providers such as YouTube can't comply to these notices immediately. The law requires service providers to wait at least 10 business days before putting the disputed work back up in order to maintain safe harbor. This especially affects disputed works that are time-sensitive, such as those associated with an election or a sporting championship.

  • blabla (Score:5, Insightful)

    by Tom (822) on Monday January 25, 2010 @11:24AM (#30891580) Homepage Journal

    What a long rant.

    The short of it is: Universal is one of those companies that appears to have absolutely no trouble asking for similar figures when it is them who filed the suit. And I'm talking both damages and attorney fees. Quid pro quo. You ruin people upload 240 seconds of your song, then be ready to be ruined yourself when you falsely accuse people over 30 seconds of it.

    You can't have it both ways. Either these are the crown jewels and everything about them is so precious that your ridiculous fees and damages are alright, or this is mass-produced cheap crap with a net worth around a couple cents. Which one is it?

  • Fair Punishment? (Score:5, Insightful)

    by EzInKy (115248) on Monday January 25, 2010 @11:26AM (#30891612)

    Why should the punishment for depriving a person of their right to fair use be any less severe than violating a copyright?

    • Probably because, as President Coolidge put it, "The business of America is business." Fair use by individuals on the Internet is not a profitable activity in terms of dollars, even though it is great for society. On the other hand, selling an authorized copy of some work that you have a copyright on is a very profitable activity.

      So, yes, in the America we live in (the one controlled by corporations), it is worse to violate a copyright than to abuse the legal system in order to deprive a person of thei
      • by paiute (550198)

        Probably because, as President Coolidge put it, "The business of America is business." Fair use by individuals on the Internet is not a profitable activity in terms of dollars, even though it is great for society. On the other hand, selling an authorized copy of some work that you have a copyright on is a very profitable activity.

        So, yes, in the America we live in (the one controlled by corporations), it is worse to violate a copyright than to abuse the legal system in order to deprive a person of their right to fair use.

        All we need is some rampant nationalism and we are up Godwin Creek without a Fuhrer.

    • Why should the punishment for depriving a person of their right to fair use be any less severe than violating a copyright?

      Good point! (I would mod you up, but I wrote in this post and don't wanna lose it)

  • The problem with attorneys' fees is not unlike the problem in the medical profession. They usually get paid per hour. This gives them incentives to drag cases out and not do their best work up front. After all, if you end the case fast, you don't get much money.

    I've seen advocation from some (including in Forbes in a column by a lawyer) that hiring an attorney should be more of a flat fee model. Based on previous cases, your law firm should be able to guess how much it will cost to run your case. So you p

    • Re: (Score:3, Informative)

      by nomadic (141991)
      The problem with attorneys' fees is not unlike the problem in the medical profession. They usually get paid per hour. This gives them incentives to drag cases out and not do their best work up front. After all, if you end the case fast, you don't get much money.

      As a lawyer I can tell you I hate billable hours with the heat of a thousand suns. Most lawyers do. The problem with a flat fee is one mistake and you could end up doing hundreds of hours of work for a very low amount of money.
  • Hey (Score:5, Funny)

    by Nerdfest (867930) on Monday January 25, 2010 @11:32AM (#30891712)
    I'd like to point out that sneaking TFA into TFS cheating. Damn you.
    • Re: (Score:3, Funny)

      by Alsee (515537)

      It's not a problem. You can now post replies without reading TFS either.

      -

  • Universal has RIAA artists, so just use the money RIAA collects from their crazy-high piracy fines to offset any crazy-high fair use fines.

  • IndieArtist says.... (Score:3, Interesting)

    by ak_hepcat (468765) <leif AT denali DOT net> on Monday January 25, 2010 @11:34AM (#30891746) Homepage Journal

    From the standpoint of (an) IndieArtist -- They don't have a team of lawyers or sub-sub-contractors trolling youtube videos looking for so-called infringments.

    So the only way that they would find out is by somebody else reporting it, randomly stumbling across a video, or by purposefully searching for their song titles.

    In any case, IndieArtist would have to read up on DMCA takedown actions and responsibilities, because TANAL. Hopefully, before sending out any such takedown requests, they've actually spoken to a lawyer-friend to get advice.

    At the very least, they would have had to "done their homework" and viewed the videos looking for infringing materials. But again, the concept of infringement to IndieArtist may be subtly different: Propagating their song by fan-made tribute videos can only increase their exposure, so unless they're really trying to stop something from getting out of hand, chances are they're going to "let it ride," or at the very least, contact the poster of the video and ask them nicely to remove it, or hey! "buy the CD if you haven't already."

  • by d474 (695126) on Monday January 25, 2010 @11:36AM (#30891790)
    ...then 1 attorney taking 2 or 3 hours of time to review the facts, compose the letter, and handle internal billing paperwork is surely worth $400,000. What goes around comes around. When grandma gets penalized millions of dollars for having her grandson download 20 songs over bit torrent, surely lawyer fees must be worth much more.
  • Equal and Opposite (Score:3, Interesting)

    by Maximum Prophet (716608) on Monday January 25, 2010 @11:38AM (#30891818)

    Suppose you were an indie musician who sold your songs online, and you found a number of YouTube videos that used your song without permission, so you sent a long list of DMCA takedown notices to YouTube. Included in that list was one video that used only a brief portion of your song, short enough to count as fair use. Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a bona fide copyright infringement?

    This can be answered by creating a "Newton's Second Law of Lawsuits", where one legal maneuver can only be countered by a reasonably equal and opposite reaction.
    i.e. If you as an independent musician, use your own time and stationary to send a letter, the defendant should do the same, thus can only recover what your time and materials are worth. If you hire a $400,000 legal team to send the letters, it's reasonable to counter that with a $400,000 team, thus you could recover your expenses.

    If you really want to go out on a limb, the system could measure the amount of frivolous lawsuits were filed last year and introduce a multiplier in the equation. Thus if there were twice as many bogus lawsuits filed last year as there should be, the plaitifs could recover 2x legal fees, if there half as many, then they can only recover 1/2 of their legal fees. (Leave it up to the law school debate teams to determine how many bogus suits the system should allow.)

  • by PieSquared (867490) <isosceles2006 AT gmail DOT com> on Monday January 25, 2010 @11:40AM (#30891856)
    "Suppose you were an indie musician who sold your songs online..."

    To be awarded damages you have to *know* you were filing a false claim. And at this point the difference between a self-represented indie musician (who accidentally flagged a single fair-use video in a long list of infringing ones) and a team of lawyers specializing in copyright law (who flag every video using any part of "their" songs, with no apparent effort to identify fair use) becomes important. One can argue that they missed some nuance of "fair use". The other really can't. Especially when they do it over and over again with no apparent effort reduce the number of falsely flagged videos.

    The point of asking for penalties in this case is not to set a precedent of penalizing every mistakenly sent DMCA claim, it's to change the attitude of "we'll take down every possibly infringing video and let people who think they have fair use file counter-notices" into "hey, lets only file DMCA complaints against videos that are actually infringing."
  • by Hatta (162192) on Monday January 25, 2010 @11:42AM (#30891894) Journal

    I'm an EFF member and support their request for attorney's fees, but let's play devil's advocate. Suppose you were an indie musician who sold your songs online, and you found a number of YouTube videos that used your song without permission, so you sent a long list of DMCA takedown notices to YouTube. Included in that list was one video that used only a brief portion of your song, short enough to count as fair use. Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a bona fide copyright infringement?

    If you're an indie musician, you're probably not all that knowledgeable about what constitutes fair use. If you're Universal, with a battery of high paid copyright lawyers, you are much more knowledgeable. The standard is different.

    $400,000 is pretty insane though for just drafting a letter. Where is that number coming from? I didn't see it in the linked article. How many lawyers worked on one DMCA counter-notice for how many hours?

    • Re: (Score:2, Interesting)

      by Anonymous Coward

      My guess is that they're using this as an opportunity to make a point about excessive awards and fees.

      I'd further suggest that they don't actually expect to see any of that $400K. The aim in asking for it is to dissuade Universal from sending further spurious takedown notices.

      The idea being that Universal won't want to pay it, but if they don't, they'll need to spend a fair amount of money paying their own lawyers to contest it. In fact, the invoice would have been routed via Universal's lawyers already, wh

  • hmm (Score:3, Insightful)

    by nomadic (141991) <nomadicworld@NOSpam.gmail.com> on Monday January 25, 2010 @11:45AM (#30891932) Homepage
    Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a bona fide copyright infringement?

    You're missing the point, it wasn't "accidental," it was purposeful. The question then becomes was it a knowing misrepresentation, in other words that the use of the song was clearly fair use. Honestly, it wasn't. So they're probably not liable.

    The only knowing misrepresentation I see here is EFF's ridiculous $400,000 legal bill. The attorneys who signed any legal filings requesting or supporting this should be sanctioned.
  • I'm an EFF member and support their request for attorney's fees, but let's play devil's advocate. Suppose you were an indie musician who sold your songs online, and you found a number of YouTube videos that used your song without permission, so you sent a long list of DMCA takedown notices to YouTube. Included in that list was one video that used only a brief portion of your song, short enough to count as fair use. Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a

  • by Interoperable (1651953) on Monday January 25, 2010 @11:53AM (#30892056)

    Perhaps I'm being to generous to the EFF lawyers, but it looks like they're using the $400,000 as a deterrent to rights-violating fraudulent DMCA take-downs. Sure, padding their pockets is a great side-effect, but a large financial slap in the face to online rights abusers is well within the stated mission goal of the EFF. I don't much like the thought of indie musicians getting hit upside the head with half a million dollar lawyer's fees, but the cause of stemming the flow of indiscriminate DMCA notices may be worth the risk.

    I think a judge should be able to weigh the ability of defendant to pay against the abuse of the DMCA. A record label that has repeated violated the spirit of the DMCA and shows no signs of stopping is a good candidate for a full lawyers fee; hopefully a more reasonable agreement could be reached if the notice was a one time accident. There is some discretion within such rulings.

  • by Rix (54095) on Monday January 25, 2010 @11:58AM (#30892166)

    Lawyers should be paid by the government, with equal access to all. Rather than random attorney's fees as a penalty, levy a fine indexed to the plaintiff's income for frivolous lawsuits. Defendants should never be punished for exercising their right to due process, even (and especially) if they are guilty.

  • by idontgno (624372) on Monday January 25, 2010 @12:00PM (#30892176) Journal

    How long have the editors waited to use the phrase "EFFing lawyers"? All their lives, I'd guess.

    Grats.

  • Oh god! I think my magical clicky device is broken. I aligned the two eldrich factors correctly and conjured more words to the mystic scrying pool just like I've seen others do, but something happened and I can't fix it. More words appeared, and then more and more and there doesn't seem to be an end to them. Oh god they're everywhere! My master is going to be back soon and I don't know what to do with all of them. I think I'll get the axe!
  • by A nonymous Coward (7548) on Monday January 25, 2010 @12:05PM (#30892280)

    I hate the fact that money buys justice. I propose that neither side can spend more than the other without loaning the other the difference, and loser pays. If I sue MegaCrp for a legit complaint and they bring in ten lawyers to my one, that is hardly justice. They must offer to loan me what it takes to hire a full team. If I decline the offer, they are limited to one lawyer, just like me. If I take their offer and win, they don't get their money back, and they owe me for the one lawyer I paid for. If I lose, I owe them the fees for 19 lawyers. If they think I am not able to repay their loan and/or their own costs, they should not offer the loan and should restrict themselves to equal costs, or even less -- hire a cheap lawyer and make me loan them the difference, and if I can't afford that, I have to reduce my lawyering costs to match.

    Same thing applies if they sue me.

    Obviously you have to have some leeway; you can't demand matching down to the penny. You also have to have some auditing to eliminate padding and lies. But cases where MegaCorp brings in a full fancy team against a single lawyer is blatantly wrong.

    I especially like the idea that it encourages keeping expenses small. The more you spend, the more you have to loan, and the more the other side spends. You can't simply swamp the other side with expensive investigations.

    You have to combine with with loser pays or it is pointless.

  • on the one hand, the part of me that despises RIAA tactics and obscene punitive damages thinks this is great: smack those bastards right where they'll notice, in the wallet.

    on the other hand, talk of future discouragement aside, is the EFF becoming that which they hate? 400 grand for a letter of non-infringement? that's RIAAesque in its unreasonableness.
  • 1. This is the Legal world not a PHP/.net software contract. The social value of Lawyers is ranked far and above any software/net profession. Their costs have a greater probability of reflecting what's needed in dollar terms to maintain a specific American standard of living within the higher ranks of American society.

    2. Look at it the way software projects doomed for failure in the average megacorp are costed-out. Take the lone developer or two's salary, divide it into the hours on the project, then add

  • The big breakdown in my mind regarding the concession of obvious points is that there is an unknown amount of effort that goes into assessing a point as obvious or non-obvious. If digging deep enough into case law turns an obvious point on its head, it may be a worthwhile search, and I might not want to concede the point unless it some of that research had been done. More often than we would like, common sense and the law are at odds over things that otherwise seem quite simple.

  • Ahem.

    Just because attorney's fees are sought, and awarded, does not mean they will be awarded in the amount sought. They have to reasonably reflect the legal expenses incurred and the defendant's ability to pay.

    IANAL, but I write from experience: I went to court to enforce a provision in my divorce decree against my ex-wife. Long story short: she got the house, could not refi in her name, I was liable for the mortgage, and she was to pay. If she didn't I had power of sale over the property, to eliminate my

  • simple solution ... (Score:4, Interesting)

    by tomhudson (43916) <barbara.hudson@b ... h u d s o n .com> on Monday January 25, 2010 @12:56PM (#30893054) Journal

    "The first thing we do, let's kill all the lawyers" - Henry VI.

    I wouldn't go THAT far, but certainly lawyers are an impediment to justice.

    Why not go back to the old system that was in place at the time of Abe Lincoln, where ANYONE could argue a case on behalf of anyone. This cuts out the BS with the various lawyer's associations, etc., and lack of access because of $$$ issues.

    It's happening anyway - 60% of all family cases have one side representing themselves. Far better if they have a friend who is more knowledgeable to argue for them, instead of either having to go broke paying a lawyer who, in many cases, simply can't do a better job.

    And before all the idiots here go nuts and say "you don't know what you're talking about", I've got over 1,000 hours in the courts, arguing civil, criminal, and regulatory cases,

    Most lawyers are a waste of money. Just ask any retired lawyer or judge.

    Preparing motions and arguing cases is not that complicated. Any fool can do it. Oops, what am I saying - fools do it every day. And greater fools pay them to do stuff that they could do themselves with a bit of searching on the net.

  • by Grond (15515) on Monday January 25, 2010 @12:57PM (#30893060) Homepage

    The EFF actually made a claim for attorney's fees earlier in the case, and the claim was denied. The court found that a violation of 512(f) requires either actual knowledge that the material is not infringing or that the fair use be self-evident. Lenz v. Universal Music Corp., Copy. L. Rep. (CCH) P29,540, 8 (N.D. Cal. 2008). The court then found that the plaintiff had neither alleged facts from which actual knowledge could be inferred nor facts showing that the fair use was self-evident. Id. at 9. The plaintiff was given leave to amend the claim to correct these issues, which she did.

    The amended version of the complaint alleged that Universal acted in bad faith and deliberate ignorance of fair use. Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150, 1156 (N.D. Cal. 2008). It further alleges that Universal is acting solely to satisfy Prince's personal agenda. Id. Those allegations were held sufficient to deny a motion to dismiss the claim. Id at 1157. The court ruled that copyright holders must undertake a good faith consideration of fair use but they are not required to make a full investigation. Id at 1155-56. The court noted that cases of bad faith are likely to be rare. Id at 1155.

    So the outcome here hinges on whether Universal considered fair use and decided in good faith that it did not apply. Normally it would be difficult to prove that Universal ignored fair use as a possible defense or considered it only in bad faith (e.g., had its lawyers tell it what it wanted to hear). The evidence would normally be protected by the attorney-client privilege or the attorney work-product privilege. In this case, however, the EFF won significant parts of a motion to discover such evidence. Lenz v. Universal Music Corp., 2009 U.S. Dist. LEXIS 105180 (N.D. Cal. 2009). Unfortunately, I can't find a link to the EFF's argument for this motion, so it's hard to say how strong their case actually is (e.g., whether they uncovered a smoking gun memo).

    As for Mr. Haselton's extensive discussion of the best way to apportion the cost of litigation between parties I will say this: It is remarkable only for its complete lack of citation to or recognition of the numerous legal and economic studies that have been made of the subject over the past couple of centuries. It is the law and economics version of the phenomenon described in this XKCD comic [xkcd.com] and its accompanying alt-text.

  • by horza (87255) on Monday January 25, 2010 @02:09PM (#30894004) Homepage

    In France, the government sets a rate it thinks it is reasonable medical professionals to charge. For instance a GP should cost x and a heart surgeon should cost y. Now you are allowed to see any medical professional you wish, and they are allowed to charge what-ever rate they like. However, the government will only reimburse you at the reasonable rate. Let us say, for example, you need a liver operation. You can choose a surgeon that charges the standard rate and have free health service. Or you may be well off and choose a famous surgeon that charges twice the normal rate, but in the knowledge you will only have half of it reimbursed. The rate the medical profession charges reflect the market, most charging around standard rate as the majority of people want free health care but a smaller percentage charging more for the wealthier as they "want the best".

    This will fit in well with the attorney fee reimbursement model. The State decides that a copyright attorney is worth $x/hour. The EFF chooses attorneys that charge the standard rate. If they win then justice was done at no cost to themselves. If they lose, then their additional losses are limited to roughly what they had spent themselves. MegaCorp may decide money isn't an issue and wants to hire the best to make an example out of the EFF. If they lose, they reimburse all of the EFF attorney fees. If they win, they get back what they would have spend if they had used average lawyers. The difference they knew they knew in advance they were going to have to write off. The attorneys submit to the court their timesheets for reinbursement. A cursory glance by the judge will easily spot if there is any exaggerated excesses.

    It won't solve the problem of dragging out a court case, but at least you know upon losing there will be a reasonable cap on the winner's attorney fees. IndyMedia's attorney also knows he can continue at standard rate in the knowledge we will get a summary judgement for payment without trying to haggle to get all of his fees paid at the end.

    Phillip.

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