The federal Ninth Circuit Court of Appeal changed course and held in an opinion on June 26, 2009 that a copyright-infringement plaintiff which voluntarily dismisses its case, without prejudice to refiling, is not automatically deemed the losing party, such that the defendant is deemed to “prevail” and thus be entitled to recover its defense legal fees. (Cadkin v. May-Loo Music, Inc., 9th Cir. No. 08-55311, June 26, 2009)  In so doing, the Ninth Circuit expressly overruled its own long-held position that a copyright infringement defendant was automatically considered the prevailing party entitled to attorneys fees, when a plaintiff voluntarily dismissed without prejudice (Corcoran v. Columbia Broadcasting System, Inc., 121 F.2d 575 (9th Cir. 1941))  The Ninth Circuit’s ruling, while sensible on its face, may also reduce the initial disincentives to filing a copyright infringement suit to leverage or oppress an opponent.

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