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

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.

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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: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...

Filed Under: attorneys fees, copyright