Hoping to prevent further unfavorable rulings on attorney’s fees ...

Andersen in the U.S. District Court in Portland, Ore., posed the RIAA’s second loss on attorney’s fees, but the ruling must be approved by a senior judge. The ruling hinged on the RIAA’s having failed to act “reasonably,” by dragging out discovery and failing to pursue an additional suspect in the infringement. The RIAA said Tanya Andersen wasn’t a “prevailing party” qualified to receive attorney’s fees, since there was no ruling on the merits or court-approved consent decree. Magistrate Judge Donald Ashmanskas disputed that, saying Andersen’s legal relationship with the RIAA had “materially” changed when she got all available relief without making concessions. But that’s a “slippery slope” as recognized in Shloss v. Sweeney, a case where a joint stipulation was denied as grounds for prevailing-party status, the RIAA’s filing said. Ashmanskas declined to apply Shloss because he mistakenly believed that the defendant in that case had made concessions, the RIAA said. Ashmanskas’ ruling that the RIAA dropped its case because it lacked prima facie evidence of wrongdoing is “utterly without any basis.” The RIAA dismissed its case because of “evidentiary inconsistency” in its inspection of Andersen’s computer, but it had a boatload of evidence linking Andersen to infringement, including three confirmations by Verizon that she had the flagged IP address, Andersen’s admission that she had Kazaa on her computer, and her daughter’s connection to the screen name. There was no way that another person could have been the infringer, as Ashmanskas assumed, the filing said. In a footnote, the filing said the RIAA, not Andersen, had discovered a person who shared Andersen’s “gotenkito” screen name, and tried for 1-? years to find the person, whose only Internet identification was his first name, age and geographic location. There’s no evidence the other suspect ever had access to Andersen’s IP address, and his use of the screen name was on his MySpace page, not Kazaa, the RIAA said. The group challenged Ashmanskas’ claim that the RIAA forced an “unusually extended and contentious period of discovery.” It was Ashmanskas who delayed the discovery by ordering an examination of Andersen’s hard drive, and then Andersen, by changing her mind and raising “ongoing objections” to examination of her hard drive. If Ashmanskas’ recommendation is upheld, rights holders with “objectively reasonable claims” will keep litigation going even when they discover “evidentiary inconsistency” like the RIAA encountered, the filing said.