Copyright Troll Complains of Defendant's Legal Fees 138
Hugh Pickens writes "Copyright enforcement company Righthaven, accused of coercing defendants into settling with threats of damages of $150,000 and forfeiture of the defendants' website domain names, is complaining that one of its litigation foes is needlessly running up legal costs that Righthaven may end up having to pay. In one of its more extensively-litigated cases, Righthaven sued the Democratic Underground last year after a message-board poster re-posted the first four paragraphs of a 34-paragraph Review-Journal story. After suffering a fair-use setback in another case involving a partial story post, Righthaven tried to drop its suit against the Democratic Underground, which would have resulted in a finding of 'no infringement.' But the Democratic Underground is pressing for Righthaven to pay its attorney's fees and says new evidence had surfaced that would bolster their case. 'Defendants agree that this case should be over — indeed, it should never have started. But it should not end until Righthaven is called to account for the cost of the defense it provoked,' say attorneys for the EFF. 'To allow Righthaven to avoid compensating those who have no choice but to defend would be unjust and unsupportable.' In related news, Righthaven has filed five more lawsuits, bringing their total since March 2010 to 246 lawsuits."
Because victory is never assured (Score:5, Interesting)
Yeah, but why isn't it *always* "loser pays"? Then, as a defendant, there is an incentive to settle if you already know you're guilty (it will cost you even more money), and there's an incentive to keep going if you know you are innocent (your costs will eventually be covered by the loser), and for the accuser to settle or not bring the case in the first place.
Because the first thing any decent lawyer is going to tell you when you sit down in their office is to forget this notion that because you "know" you are innocent, you "will" eventually win and your court costs "will" be covered. The world simply doesn't work that way.
The number of cases where you can be 100% certain that you are legally in the clear is vanishingly small. Even seemingly clear-cut cases of a Fair Use defense against infringement can hinge on subtle points of previous precedents that you know nothing about and your lawyer hasn't researched yet because at this point they haven't even taken the case. Especially in the general case, it is absolutely the case that just because you think you are in the right -- even if you are in the right -- that doesn't mean you will prevail in court.
So you, Average Joe, are being sued by a big corporation for twenty grand. You know you might lose, and you know that if you go to court, the corporation will do just about anything to win and avoid a negative precedent. Their legal costs could be many times what they're suing you for -- especially because if they win, you foot the bill. The twenty grand would be a severe hardship, but their legal fees would crush you. They're offering an out-of-court settlement of three grand, which sucks but you can manage.
How do you think most people are going to see this? They're no longer just gambling the cost of the suit, but the cost of a high-priced corporate legal team.
Universal "loser pays" would not encourage most people to stand up to lawsuits. It would have a severe chilling effect. It would give the big corporations an even bigger advantage, beyond already having more expensive lawyers than you. Because they could trivially pay for your lawyer fees, but you could not come close to paying for theirs. Any decent lawyer would tell you to be extremely careful when deciding to stand up to them, and any sane client would listen.