Appeals Court Says Defendants In Bogus Copyright Cases 'Are Entitled To A Very Strong Presumption' For Receiving Attorneys' Fees

from the it's-something dept

In an era of lots of questionable copyright trolling, one of the complaints that people have made is that it’s fairly rare to see a court assign attorneys’ fees, even when the defendant prevails. Yes, in extreme cases like Righthaven and Prenda, we’ve seen courts award attorneys’ fees, but it’s far from typical. Hopefully that may be changing. In the 7th Circuit appeals court, a recent ruling in a much more involved case, DeliverMed v. Michael Schaltenbrand, had one element that focused on the question of attorneys’ fees. The court ruled that it was proper to award attorneys’ fees and, in fact, that defendants are entitled to a “very strong presumption in favor of receiving attorneys’ fees” and notes clearly that this is to make sure defendants don’t just fold and pay up to shake down-like practices:

As a consequence of their successful defense of an infringement suit, Defendants are entitled to a “very strong” presumption in favor of receiving attorneys’ fees. Assessment Techs. of Wis., LLC v. Wire Data, Inc., 361 F.3d 434, 437 (7th Cir. 2004). This presumption is designed to ensure that an infringement defendant does not abandon a meritorious defense in situations in which “the cost of vindication exceeds the private benefit to the party.” Id. “For without the prospect of such an award, [an infringement defendant] might be forced into a nuisance settlement or deterred altogether from exercising [its] rights.” Id. DeliverMed has not provided us with any reason to rebut this presumption.

Now, the case may be a bit more involved, seeing as the plaintiff apparently lied to the Copyright Office to register the copyright in question, but it’s still nice to see a clear statement that defendants who fight back against bogus copyright claims should be able to get fees from the plaintiffs.

Of course, the ruling isn’t all good. Thanks to the already terrible law, the ProIP Act from 2008 (which, in a lot of ways was significantly worse than SOPA), there’s now a rule in copyright law that says a court can’t just invalidate a bogus copyright registration. Instead, it first needs to go to the Copyright Register, and ask for the Register’s opinion on the matter (in this case, ask whether or not the Copyright Office would still register the copyright knowing the facts). This seems silly and wasteful. Basically everyone knows, in this case, that the registration was based on “intentional misstatements.” A court should be able to invalidate such bogus registrations. But, thanks to the ProIP Act, they can’t do that, so the court’s hands are tied. The court seems to recognize how problematic the whole situation is, and spends a very long time warning “both courts and litigants” away from doing similar things in the future, noting that this demand to get the Register involved could be abused as a delay tactic in cases.

So, yes, it’s yet another problem with ProIP. Seems like it’s about time that terrible law got revisited…

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Comments on “Appeals Court Says Defendants In Bogus Copyright Cases 'Are Entitled To A Very Strong Presumption' For Receiving Attorneys' Fees”

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out_of_the_blue says:

^^^ Where the fanboys LIE about me in advance!

Because they’ve only pejorative, nothing positive to say on topic. Without me, they’re truly nothing.

For the record, I’ve called for lawyers to be hung whenever can be proven that they lie. Or more often: they’re always up to something.

And in fact it’s Mike who objects above to “due process”, claiming that going to the Copyright Register is too much trouble when “everyone knows”.

Anonymous Coward says:

Re: ^^^ Where the fanboys LIE about me in advance!

If there were no you – which you promised in a threat to leave the site months ago – people would move onto the other idiots that continue to spam their lies and “anoma”lies in each and every thread.

Due process would be efficiently preventing errata from persisting in the system, not making it such that the error persists and be used as a legal bludgeon (which you claim to be against). But it’s not a surprise you want the law here to be as inefficient as possible because it allows rightsholders to be loophole-abusing jackasses.

For the record, which anyone can check via search engine (evil, evil, evil search engines!), you’ve been constantly writing impassioned defences for Prenda Law before devolving it into mere dismissals, hand-wringing and mustache-twirling. When horse with no name shows up and wishes for anonymous Does in Prenda cases to be beaten up, you sing his praises and support. No surprise there, because you’re both cocksuckers. It’s a shame you can’t both lock yourselves in a permanent 69 and choke each other to death on man meat.

out_of_the_blue and horse with no name just hate it when due process is enforced.

Not an Electronic Rodent (profile) says:


“For without the prospect of such an award, [an infringement defendant] might be forced into a nuisance settlement or deterred altogether from exercising [its] rights.”

Is this really the first time in copyright history that this observation, so obvious that a 4 year old could point it out, has been made in a court of law?

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