In a recent article, Gozmodo reports of an independent artist that was charged with copyright infringement, and was forced to settle for tens of thousands of dollars, even though he didn’t do anything wrong. As the artist was quoted as saying, “My lawyers and I firmly believed that I was legally in the right,” he says. “But it doesn’t matter, fair use doesn’t protect you unless you’re willing to pay to defend yourself. The average copyright case costs $310,000 to litigate when there’s less than $1 million at risk.”

Doing the math is easy. The defendant is looking at spending $310,000 to defend himself even if he knows he’s going to win. The only way to recoup that money is if he files a countersuit, which would cost still more money. The only way to win this kind of game is to just not play–to settle before it gets to trial–which is exactly what the artist did at a smaller, yet still significant fee of $40,000.

The result is that a predatory plaintiff can basically force someone to pay tens of thousands of dollars by just threatening legal action. Even if the plaintiff is clearly in the wrong, he has the leverage just because he’s willing to (and financially capable of) going through with a lawsuit.

Notwithstanding that there are always two sides to such a picture, we can focus on what’s wrong with the system. It can be summed up as follows:

Even when someone is in the right, whether defendant or plaintiff, he is faced with high legal fees to accomplish anything. This means that the ability to pay those high legal fees is the determining factor in whether one wins the case. Financial power equals legal power. This is a serious problem in a supposed free country.

This would be alleviated with a legal standard known as ‘Loser Pays‘, where the loser of the proceedings must incur all the legal fees involved (on both sides of the case). Certainly, this standard has its own problems, but would lead to greater justice in refocusing the attention to the actual harm done (as opposed to the monetary standing of the participants). It would also mean that people would have less incentive to engage in frivolous lawsuits that they know are only winable given the defendant’s rational aversion to high legal fees.

The article that surveys the trials of the independent artist is well worth the quick read, and can be found here:

http://gizmodo.com/5814820/kind-of-a-dick-move