BitTorrent Defendant Fails to Byte Off Attorney’s Fees

Mass BitTorrent lawsuits have been in the news for several years now but appear to have reached a crescendo with and . A recent case out of the 8th Circuit is noteworthy because the otherwise successful defendant tried unsuccessfully to have the copyright owner pay her attorney’s fees.

In , the plaintiff sued 20 unnamed defendants based solely on IP addresses, and after subpoenaing ISPs for subscriber information, amended the complaint to identify Leigh Leaverton as a named defendant. Leaverton denied downloading the plaintiff’s film, and Killer Joe Nevada subsequently filed a motion to voluntarily dismiss the complaint with prejudice, thus dropping the case.

However, Leaverton opposed the motion and instead argued for the district court to award attorney’s fees to be paid by the plaintiff. The district court denied the request, and the appellate court affirmed. On appeal the court noted that under such awards are discretionary and not automatic, and found no abuse of discretion by the district court.

Leaverton questioned the reasonableness of suing unnamed subscribers identified by only IP addresses, but the court left intact its own 2005 precedent in which held that it is reasonable for copyright plaintiffs to sue “John Doe” subscribers for the purpose of obtaining more information about their identities. The court also found no abuse of discretion in the fact that the lower court did not explicitly consider Leaverton’s financial status in determining whether to award attorney’s fees.

The takeaways from this case: first, BitTorrent copyright infringement cases are still occurring, but can be won by defendants, and second, attorney’s fees awards are purely discretionary and are not automatic.

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