If the author who blew the whistle on this magazine had gone into some court to sue the magazine…
This would have to be in Federal court, correct?
Aside from hiring a lawyer, how much would it cost to file the papers with the court?
Does being the first to sue grant you any preference over others that sue later. It appears that this magazine took material from Disney, Martha Stewart, the Food Network, and who knows who else, but these folks at least have lawyers to pursue such cases. And the magazine is a small regional one that probably doesn’t have real deep pockets. So if a bunch of people get judgments against the rag, how is it determined who gets to dip into the pockets first?
In a similar vein, could you more or less throw in a filing to “save your place in line”, and then amend the filing later? In the Cooks Source instance, on day one it wouldn’t seem likely such a firestorm would brew up, but today the author might be able to find a lawyer just for the sake of the publicity. IOW, could the author have filed on her own on day 1, and come back some time later with a competent attorney who could do better? Might there be some kind of penalty if that happened?
Filing fees vary by jurisdiction. Not sure if federal courts use standardized filing fees or not. In addition to the filing fee, there’s the cost of serving process, which varies by method.
In my state, if you file a lawsuit, you have the right to amend the complaint at any time prior to the filing of an answer. After an answer has been filed, it requires permission from the Court to amend.
As for collecting a judgment…it doesn’t matter when the lawsuit was filed. What matters is when the judgment was entered on the judgment rolls. First judgment gets priority over the next one in line…but still falls behind secured creditors. Ie, you have a judgment that may bankrupt the company…you don’t get to come in and seize their buildings if another creditor holds a mortgage on those buildings.
To add to what Oak wrote about judgments, this is the classic “race to the courthouse” problem, where creditors try to get their judgments as fast as possible in order to beat other creditors to the assets.
Bankruptcy is the solution to that problem, as it creates an orderly disbursement of assets to all the creditors. It’s not all up to the debtor/defendant, either. Creditors can band together in certain circumstances and force an involuntary bankruptcy of a business (though not an individual).
Also, the suit doesn’t have to be filed in federal court, although it probably would be. Most (maybe all, I’m not sure) state courts have general jurisdiction to hear any type of case. Only Federal courts have limited jurisdiction.
As I think about this more, my level of confidence in my last paragraph above is not high. Maybe one of the other lawyers more familiar with copyright law can confirm or deny.
AFAIK Federal courts have exclusive jurisdiction over copyright claims, as that is one of the relatively few things specifically granted to the federal government to control by the US Constitution. I’d think that if you filed in state court it would, at the very least be immediately removed to federal court, if not outright dismissed.
The constitution doesn’t say anything about exclusive jurisdiction. State jurisdiction over copyright law has been explicitly pre-empted by act of Congress.
Thanks for the info. That’s what I get for only half remembering subject matter jurisdiction. Upon further review, it looks like copyright, patent, admiralty, and bankruptcy are all areas where the feds have exclusive jurisdiction.
It can get complicated. The issue is whether the author registered the copyright (and she probably didn’t). As for the questionsL:
Correct.
If the copyright is registered, the amount doesn’t matter – the author can get all their costs (lawyer’s fees, court costs, etc.) paid for by the infringer.
If not registered, though, they need to pay fees even if they win. It makes no sense to go to court if you haven’t registered the copyright, since you will find it next to impossible to get any money (you need to show actual losses, which is hard to prove for a physical book, and impossible for something you’re displaying for free on the Internet).
The sooner your file your suit, the sooner the case comes to court (maybe – it will also depend on the case load for the particular court that handles the case, as well as any delays by the defendant). The magazine would have to pay out as each case is decided and the timing of that varies. In most cases, however, the type of thing never goes to court – the infringer has every incentive to settle, and the sooner they settle, the less they have to pay. In this case, the blogger was happy with a few hundred dollars; any lawyer would tell the magazine to take that (assuming the copyright was registered)
AFAIK, filing the suit can be done at any time. It’s not a matter of amending: assuming you have registered your copyright (which has to happen within a few months of publication), there are statutory penalties that apply to any lawsuit. The lawyer wouldn’t be needed until the case goes to court, and, again, the magazine will settle long before it gets to that stage. You probably would need a lawyer to do the filing, though.
If the copyright isn’t registered, then you’re better off not filing at all. You will not get any money from the infringer and you’d be out all your costs (but the infringer won’t be able to continue using your work).
What probably wasn’t apparent (especially to the internet posse) was that this was a free monthly publication that relies on local advertising. Griggs is probably the only employee, and I’d wager see oversees a bunch of other similar publications, too.
If this firestorm succeeds in putting her out of business, all that accomplishes is making it impossible for the aggrieved author (and others) to recover any damages. A lawsuit is moot, at this point, as it often is in copyright infringement cases.