Fifth Circuit: Prevailing defendant in file sharing copyright case not entitled to attorney fees
January 07, 2008

On Friday, the Fifth Circuit affirmed a district court finding denying an award of attorney's fees to a defendant who had been sued for copyright infringement by several recording companies, as part of the industry's ongoing litigation efforts to curb file sharing. In doing so, the court upheld the notion that, although attorney's fees are awarded routinely to prevailing parties in copyright actions under 17 U.S.C. § 505, recovery of attorney's fees is not automatic and must be reviewed in light of several non-exclusive factors. More detail of Virgin Records Am. Inc. v. Thompson after the jump.In late 2005, the plaintiffs, Virgin Records and several other recording companies, discovered that an IP address registered to the defendant Cliff Thompson had used a file-sharing program to distribute copyrighted audio files. For the six months prior to filing suit for copyright infringement, plaintiffs attempted to contact Thompson by letter, phone, and email, but he failed to respond. When plaintiffs finally brought suit in 2006, Thompson denied infringement and counterclaimed for attorney's fees. After the plaintiffs moved to dismiss the counterclaim, Thompson responded that any downloading of copyrighted files was likely done by his adult daughter through his IP address. Once plaintiffs confirmed that Thompson's daughter was the direct infringer, they moved to dismiss the case against him, and Thompson renewed his claim for attorney's fees.The district court declined to award Thompson fees. In doing so, the court noted that attorney's fees should be awarded routinely under 17 U.S.C. § 505, but that courts should still utilize discretion to determine if an award should be granted. Generally, a court's discretion is guided by looking at several non-exclusive factors from the Supreme Court's decision in Fogerty v. Fantasy, Inc., including frivolousness, motivation for lawsuit, objective unreasonableness, and the need to advance consideration of compensation and deterrence. The district court noted first that the plaintiffs' lawsuit was not frivolous or objectively unreasonable, given that Thompson failed to respond to plaintiffs' attempts to contact him and the infringing IP address was registered under his name. Further, the court found that plaintiffs had proper motivation to bring the suit in the first place, as they simply acted to protect their copyrights and immediately dismissed the case once it was shown that Thompson was not the direct infringer. Finally, the district court found that an award of attorney's fees would not advance considerations of compensation and deterrence, as the plaintiffs should not be deterred from bringing objectively reasonable suits to protect their copyrights in the future. On review of the denial of attorney's fees, the Fifth Circuit applied an abuse of discretion standard. It agreed that an award of attorney's fees should be the "rule rather than the exception," but found that the district court had articulated and applied the correct governing standard and factors, and had not abused its discretion in doing so.

To read the full decision in Virgin Records Am. Inc. v. Thompson, click here.

For a listing of many court documents from various contested copyrignt infringement cases brought by the recording industry involving file sharing (along with commentary from attorneys who have represented defendants in such cases), click here.

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