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Tuesday, August 26, 2008

Yoko v. Expelled federal lawsuit drags on

I reported in a recent post that the state court copyright suit is continuing, with a denial of a preliminary injunction but a requirement that the defendants answer the complaint. Only the record companies are plaintiffs in the state court suit.

I mistakenly thought that there was a final decision in the federal case last month, but the July 17 report of what I thought was the final decision turned out to be a grossly overdue report of the June 2 denial of a preliminary injunction. I thought that the case was virtually over when the motion for a preliminary injunction was denied. The opinion denying a preliminary injunction was 23 pages long -- far longer than what this frivolous lawsuit deserved -- and appeared to thoroughly cover all of the issues. There did not seem to be much to add. Now I find a July 1 court order that says, "The last day for the completion of all discovery except expert discovery is October 31, 2008." What in the hell is there to discover? The facts of the case were never disputed -- the only issues are conclusions of law. A collection of documents in the case is here (continued below the fold).
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As I have said many times, judges make time for high-profile cases by giving short shrift or no shrift to low-profile cases. In judges' allocation of time to different cases, the losses of the many fund the payoffs for the lucky few, just like at any honest racetrack. The courts should place strict limits on the amount of time that judges may spend on individual civil cases. The courts have page and/or word-count limits on the lengths of briefs (these limits can be exceeded with permission of the court), so why not limit the amount of time that judges can spend on individual civil cases? I propose that plaintiffs be charged high extra fees when such time limits are exceeded and that those extra fees be used to pay for hiring more judges and magistrates and to assist pro se litigants.
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7 Comments:

Blogger William Wallace said...

This is still going on? In Federal and State Court. Strange.

Tuesday, August 26, 2008 9:39:00 PM  
Anonymous Michael said...

I'm not surprised especially when famous people are involved the court process gets even slower. This should have been decided a long time ago. It's not that complicated of a case. The only winners are the lawyers who are making the big bucks.

Wednesday, August 27, 2008 1:35:00 AM  
Anonymous W. Kevin Vicklund said...

Actually, this case is about a month ahead of the normal pace for a federal case, due to the expedited preliminary injunction hearing (and remember, Larry objected to the expedited process). Also, the discovery was only partial for the preliminary injunction. Any case that survives a motion to dismiss is going to last at least 6 months, barring stipulations by the parties to expedite the process.

Wednesday, August 27, 2008 6:19:00 AM  
Blogger Larry Fafarman said...

Hypocritical Kevin Vicklund continues to post comments here when he knows that he is not wanted, while he criticizes me for doing the same thing on other blogs.

>>>>>this case is about a month ahead of the normal pace for a federal case <<<<<<

There is no such thing as a "normal" pace for a federal case. For example, it took 3 years for a decision in ACSI v. Stearns (Fundy schools v. UC). In Selman v. Cobb County, It took the appeals court about 16 months (starting from the date of filing of the appeal) just to vacate and remand the decision because of missing evidence.

>>>>>> due to the expedited preliminary injunction hearing (and remember, Larry objected to the expedited process) <<<<<<

The only thing I objected to was hand service of court documents -- that was unnecessary because the court documents were filed electronically.

>>>>>> Also, the discovery was only partial for the preliminary injunction. <<<<<<

Why is discovery necessary? So far as I know, the facts of the case are undisputed.

Michael said...

>>>>>> The only winners are the lawyers who are making the big bucks. <<<<<<

Well, the defense attorneys are pro bono. Though pro bono attorneys may be eligible for attorney fee awards pursuant to 42 USC §1988 and Blum v. Stenson, the pro bono attorneys here are defense attorneys and so it is questionable that they are eligible even though they are defending a right of freedom of expression. And the ABA urges pro bono attorneys to donate all or most of the loot from attorney fee awards.

The judges are also winners -- it gives them an excuse to give short or no shrift to low-profile cases.

Wednesday, August 27, 2008 11:56:00 AM  
Anonymous W. Kevin VIcklund said...

The Supreme Court ruled in Fogerty v. Fantasy, Inc. that prevailing defendants in copyright cases are treated the same as prevailing plaintiffs.

The reason it took three years in ACSI v Stearns is that the Judge didn't want to short-shrift the low-profile cases. The extensive amount of material produced by both parties forced him to twice decide whether to delay or short-shrift one ruling (ACSI), or delay or short-shrift a bunch of other rulings. The magistrate judge having to recuse himself in the middle of the mediation hearings also didn't help.

Wednesday, August 27, 2008 2:48:00 PM  
Blogger Larry Fafarman said...

>>>>> The Supreme Court ruled in Fogerty v. Fantasy, Inc. that prevailing defendants in copyright cases are treated the same as prevailing plaintiffs. <<<<<<

The statute at issue in Fogerty v. Fantasy, 17 USC §505, is different from the one I cited, 42 USC §1988 -- here is the former statute:

§ 505. Remedies for infringement: Costs and attorney’s fees

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.


But 42 USC §1988, like 17 USC §505, does not distinguish between plaintiffs and defendants, so I have wondered if a defendant would be eligible for attorney fee award under §1988.

Also, awards of attorney fees are discretionary under both §1988 and §505, so the prevailing party is not necessarily "entitled" to an award. I googled "copyright cases and attorney fee awards to defendant" and found a post -- on the Patry Copyright Blog -- about a recent copyright case where the district court denied an attorney fee award to the defendant. The post said that some courts have refused to comply with Fogerty v. Fantasy:

The court of appeals went on, saying that the case for fees to defendant is "even stronger in a copyright case." The backdrop to this is the continued refusal of some courts to adopt the even handed approach to awarding fees mandated by the Supreme Court's opinion in Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). Before Fogerty many courts had a double standard in which prevailing plaintiffs got attorney's fees as a matter of course, but prevailing defendants had to prove plaintiff was something like a (sic) ax murderer.

Judge Posner set out to rectify the continued refusal of some court (sic) to comply with Fogerty:


Sadly, the Patry Copyright Blog has been discontinued. The posts were initially deleted but were later mostly restored, which is why I was able to find the above post.

Also, large attorney fees awards tend to indicate that both sides have strong positions -- the fee awards are large because the litigation was long, and the probable reason why the litigation was long was that both sides had strong positions. So in general, the larger the attorney fee award, the weaker the argument that the weakness of one side's position justifies the award.

Anyway, Yoko Ono is so rich that an attorney fee award to the defendants would be peanuts to her.

>>>>>> The reason it took three years in ACSI v Stearns is that the Judge didn't want to short-shrift the low-profile cases. <<<<<<

No matter how much he delayed ACSI v. Stearns, short-shrifting low-profile cases was unavoidable because of the great amount of time he spent on ACSI v. Stearns.

Wednesday, August 27, 2008 4:39:00 PM  
Anonymous Voice in the Urbanness said...

> Kevin Vicklund continues to post comments here when he knows that he is not wanted <

Because he always exposes your fallicies.

> while he criticizes me for doing the same thing on other blogs. <

You don't do the same thing as Kevin. You don't make intelligent posts. You just rant and insult people, dunghill.

Wednesday, August 27, 2008 11:33:00 PM  

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