United States District Court
for the Central District of California

Ellison v. Robertson et al.

Harlan Ellison, an individual, plaintiff


Stephen Robertson, an individual; America Online, Inc., a corporation; RemarQ Communities, Inc., a corporation; Critical Path, Inc., a corporation; and Does 1 Through 10, defendants.

No. 00-4321 FMC (RCx)

Docket Entry 222 (15 May 2002)

Order Denying Defendant AOL's Motion for Attorney's Fees

This mater [sic] is before the Court on Defendant AOL's Motion for Attorneys' Fees, filed April 23, 2002. The Court deems this matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing set for May 20, 2002, is removed from the Court's calendar.

The Court hereby DENIES AOL's Motion for attorneys' fees.

I. Discussion

On March 13, 2002, the Court granted summary judgment of Plaintiff's remaining claims in favor of Defendant AOL. Judgment was entered April [page 2] 9, 2002. AOL now claims it should recover attorneys' fees under Section 505 of the Copyright Act because it was the prevailing party and because its defense furthered the goals of copyright law.

17 U.S.C. § 505 provides:

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.

17 U.S.C. § 505 (emphasis added). "A successful defense of a copyright action may further the policies of the Copyright Act every bit as much as a successful prosecution of an infringement claim by the holder of the copyright." Fogerty v. Fantasy, Inc., 510 U.S. 517, 527 (1994) ("Fogerty II"). Accordingly, prevailing plaintiffs and defendants should be treated alike under section 505. See id. at 527-33. The criteria in awarding attorneys' fees under section 505 include frivolousness, motivation, objective unreasonableness (both in the factual and the legal components of the case), the need in certain situations to advance considerations of compensation and deterrence, and whether an award will further the purposes of the Copyright Act. See id; Fogerty v. Fantasy, Inc., 94 F.3d 553, 557-58 (9th Cir. 1996) ("Fogerty III").

The court declines AOL's request for attorneys' fees. As noted by AOL itself, the action was a case of first impression under the Digital Millennium Copyright Act, 17 U.S.C. § 512. Based on the dearth of legal authority and the complexity of legal issues presented, Plaintiff could have reasonably believed that the claims he was advancing against AOL were meritorious. Far from being objectively unreasonable, Plaintiff's arguments were both reasonable and well presented, although ultimately [page 3] unavailing. Defendant's contention that Plaintiff should have been well aware that section 512(a) clearly precluded AOL from liability is disingenuous; the Court itself spent easily over one hundred hours researching the law and analyzing the evidence in the instant case and reached its final decision after months of careful consideration. Moreover, the Court does not agree with AOL that Plaintiff's litigation conduct was "unreasonable" and evidence of an irrational or improper "vendetta" against AOL.1 Finally, an award of attorneys' fees to AOL would not advance the purposes of copyright law. To the contrary, it would likely have a chilling effect on copyright holders, who would be less likely to seek legal protection for their copyrights in the future, even in situations in which their infringement claims were potentially meritorious.

II. Conclusion

The Court hereby DENIES AOL's Motion for attorneys' fees. (Docket #215).

Florence-Marie Cooper, Judge

United States District Court

1. On the contrary, the only incident of improper tactics involved counsel for Defendant AOL, whose misrepresentations regarding the Court's previous holdings nearly led the Court to sanction defense counsel in October 2001.

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