Court To Guy Who Sued News Stations Over His Facebook Live Video: Pay Their Legal Fees… And Maybe Sue Your Lawyers
from the eyebrows-raised dept
If the name Kali Kanongataa doesn’t ring a bell, he was the man who sued roughly all of the news for copyright infringement earlier this year. The whole episode stemmed from Kanongataa having put the birth of his child up on Facebook through the site’s live streaming function in 2016. Many, many news organizations used snippets of the video in their reporting on the viral nature of the video, which had been viewed over 100,000 times. Kanongataa ultimately lost those suits on obvious Fair Use grounds and the various news organizations subsequently petitioned to be awarded attorney’s fees, which the court ultimately granted.
Well, Kanongataa has since petitioned the court to vacate or reduce those attorney’s fees awards on two grounds. First, Kanongataa claims his financial situation is such that these awards would bankrupt him. As the court notes however, denying the request, Kanongataa only claimed this and failed to provide any sort of evidence of his financial situation.
The difficulty here, however, is that the plaintiff has submitted no evidence at all as to his financial circumstances only an unsworn statement in a memorandum by his lawyer, which does not cut it. As Judge Chin illustrated in the Muller case, reductions in fee awards based on an unsuccessful party’s limited means typically, or at least often, are made in response to evidence rather than airy claims. And this is not unique to fees under the Copyright Act. A party resisting an award of costs under Rule 54 on the basis of inability to pay, for example, bears the burden of proving the extent of its financial resources.
While Kanongataa’s subsequent claim that NBC specifically inflated the amount of time billed for its defense was also denied, the real gem in the court’s written response is in a later portion on the matter of Kanongataa’s financial situation. Where the court again highlights that Kanongataa submitted absolutely zero evidence for his financial situation, the court footnotes the following:
The Court expresses no view on whether and to what extent plaintiff may have recourse against his attorney for the attorneys’ fees awarded here in View of any attorney advice to pursue this case and the failure to submit evidence of plaintiff’s financial condition.
The court can preface this footnote any way it wants, but this sure reads like a heavy-handed hint to Kanongataa that he may want to look into recouping costs through his attorney for even bringing this case before the court in the first place, never mind failing to properly advise him on his claims of financial strife. This pretty clearly reads like a court that knows this is a case that never should have made it past the idea stage in Kanongataa’s head, with clear implications that his attorney should have advised him against, or refused to even assist him with, putting any of this in motion.
One wonders exactly what sort of faces Kanongataa’s attorney made upon reading this.
Filed Under: attorney's fees, birth, copyright, facebook live, fair use, kali kanongataa, streaming
Comments on “Court To Guy Who Sued News Stations Over His Facebook Live Video: Pay Their Legal Fees… And Maybe Sue Your Lawyers”
Impressive for all the wrong reasons
You know you screwed up in a legendary fashion as a lawyer when a judge is hinting to your client that they might want to pay some of the fines levied against them by taking it out of your hide.
You never want to be the attorney leading the case that makes its way into the legal textbook.
Only if you lose.
But if you lose, you probably weren’t smart enough to realize the amount of permanent fame you would receive.
As much as I believe the case was frivolous and foolish, I REALLY hope the guy goes through with and succeeds at suing his lawyer; presumably after finding a new one.
Honestly, I would love to see more out there discouraging lawyers from accepting any stupid case that lands on their desk just to rack up billable hours. Heaven forbid they actually have the responsibility of determining whether something will hold up in court rather than shrug their shoulders and say ‘Oh well, it’s a paycheck.’
Unfortunately, many lawyers MUST take “stupid cases” – simple logic and metrics show that there is only a certain number of legitimate legal cases per a given population; therefore “X” lawyers are needed to handle that. Law Schools exist to crank out lawyers. When the number of lawyers far exceeds the number of legitimate cases we get all kinds of entertaining cases, lawyers turning to unethical cases (Righthaven/prenda/US Copyright group…), lawyers “gaming” the system…
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That is not anyone else’s fault that there are an excess of mediocre lawyers who think that career is a path to riches.
Just like it would not be anyone else’s fault if there were an excess of:
* mediocre plumbers
* mediocre electricians
* mediocre doctors
* mediocre software developers, uh . . . oh, wait
I guess the famous interview gauntlets of recent years are to filter out the vast unwashed hordes of mediocre so called software developers who have no passion, no skill and only see it as a path to riches.
As for the mediocre lawyer having too much competition for too few jobs, you can always change your shingle to:
Joe’s Legal Advice and Tattoo Parlor
Really good lawyers don’t seem to have this problem. Nor plumbers. Nor electricians. Nor software developers.
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“Really good lawyers don’t seem to have this problem.”
Ya, but, half of all lawyers are below average.
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There are plenty of other things a lawyer can do that have nothing to do with lawsuits. The last (read: only) time I consulted with a lawyer, it was about some advice on working out a contract. It was worth every penny.
It would certainly make it Harder for them.
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I see what you did there!
Different cases, but the big guys here succeed in getting legal fees from the the legal guy on a stupid lawsuit, yet when Techdirt (the little guy) is the target of just as stupid a lawsuit, the court can’t find any reason to slap the hands of the big guy by awarding legal fees to Techdirt.
That is because you are forgetting about the golden rule.
He who has the gold makes the rules.
The copyright code has a fee shifting, “loser pays” provision, which allows (but does not require) the judge to award fees to the winning party. That’s an exception to the default position of each party pays their own fees, win or lose. The birth video was a copyright claim; Techdirt’s email suit wasn’t.
He got what he deserved.
From his attorney’s website…”We are a team of attorneys and service professionals who will work hard to enforce your ownership rights, ensuring you receive the justice and compensation you deserve.”
Also…”No Fee Unless We Win”
Could be mistaken there as well…
_One wonders exactly what sort of faces Kanongataa’s attorney made upon reading this._
I am more wondering about the threats the attorney will make if Kanongataa makes noises about taking the court’s apparent advice.
wait, didn’t “news” outlets used video for their own commercial profits? complete with their own commercial ads shoved along?
Maybe? So what? That doesn’t change anything. The excerpts were clearly fair use, as in reporting on “news”.
Facebook also used his video for their own commercial profits. Completes with ads shoved in the same page with the video. Why isn’t he angry at Facebook? Why didn’t he take the video off from Facebook? Facebook redistributed his video to over 100,000 Facebook users, without paying the owner of the video even one cent.
By suing every other organization except Facebook, the owner of the video is effectively granting Facebook a monopoly as the sole publisher of the video.