3 ms·

Getting Copyright Right for the 21st Century

38 points by prajjwal 13y ago

tzs 13y ago
I took a look at the link they provide on that page to their article on excessive copyright penalties. They provide some examples there to illustrate their points. The first one is a case where they say "A website owner who copied two copyrighted poems, earning no profit and causing no more than minuscule economic harm, was ordered to pay $300,000". What they don't mention is that it was a commercial poetry website, and that its loss was a default judgement because they did not show up to contest the case. The way they describe it will give most readers the impression that it was some little guy being pushed around by Big Poetry. The third one they describe thusly: "Without guidelines, the penalties awarded change radically from case to case. One music industry company that sued three different defendants in separate suits for the same type of infringement won $10,000 per song in one case, $30,000 in another, and $50,000 in a third". Note that they identify the plaintiff as a "music industry company", but just call the people being sued "defendants". Is this because they want to suggest that the defendants are just ordinary music lovers, being unfairly harassed by the music industry? In fact, the defendants were also "music industry companies". They were record companies who were producing and selling on a large scale commercial recordings of plaintiff's compositions. The defendants were either underpaying royalties on compositions that they had licensed, or had failed to obtain licenses. The specifics of the cases differed as to number of works involved, and how many copies were sold of each. Note that statutory damages are per work infringed, not per copy. So, if Alice and Bob separately infringe your copyrighted song, with Alice selling 1000000 copies and Bob selling 1000 copies, then it would be quite reasonable, all else being equal, for statutory damages in your case against Alice to be much much higher per song than statutory damages in your case against Bob--because in both cases there is only song. Also note that courts consider deterrence value when deciding the statutory damages amount. The case against the defendant who got the $50k damages was actually a class action involving several hundred plaintiffs whose songs were being used without compensation by the defendant record company [1]. The case against the defendant who got the $10k was much smaller, with only a handful of songs involved [2]. Furthermore, there ARE guidelines for statutory damages. The judges in the above cited cases discuss them and how they arrived at the amounts they did. [1] http://www.leagle.com/decision/19902241909F2d1332_12019.xml/PEER%20INTERN.%20CORP.%20v.%20PAUSA%20RECORDS,%20INC http://www.leagle.com/decision/19902241909F2d1332_12019.xml/.... [2] http://www.leagle.com/decision/19951447887FSupp560_11346 http://www.leagle.com/decision/19951447887FSupp560_11346
- LukeShu 13y ago
  For reference, tza is referring to the page linked on the word "penalties" in the first sentence of the 7th paragraph: https://www.eff.org/deeplinks/2014/01/safeguard-public-domain-and-public-interest-fix-copyrights-crazy-penalties https://www.eff.org/deeplinks/2014/01/safeguard-public-domai...
- AnthonyMouse 13y ago
  Is your objection that an organization adverse to the policies advocated by the music industry is not painting the music industry in the most favorable light possible? Why would you expect them to? Put the rhetoric to one side. What objections do you have to their policy goals? > Also note that courts consider deterrence value when deciding the statutory damages amount. This is obviously a problem with the law. Deterrence is traditionally the domain of criminal law, not civil damage awards, and punitive damages in civil cases are a mistake in the absence of gross misconduct (and even then it is wise to require a higher standard of proof). Allowing disproportionately large damage awards under the civil standard of proof promotes litigiousness on the part of plaintiffs and increases the power of plaintiffs with illegitimate claims to coerce defendants into settlements against the risk of a jury not understanding the nuance of a complicated case. This is exactly the same problem with allowing prosecutors to make charges with overly harsh penalties, but worse because the party choosing whether to proceed is given a direct financial interest in the outcome. > Note that statutory damages are per work infringed, not per copy. So, if Alice and Bob separately infringe your copyrighted song, with Alice selling 1000000 copies and Bob selling 1000 copies, then it would be quite reasonable, all else being equal, for statutory damages in your case against Alice to be much much higher per song than statutory damages in your case against Bob--because in both cases there is only song It seems like you've already identified the problem -- that statutory damages per song rather than per copy make no sense. Compare this to the typical P2P file sharing case where a defendant might be sharing a thousand songs but won't have made more than a low single digit number of copies of the vast majority if not the entirety of the individual songs. In that case even the minimum statutory damages would exceed actual damages by two orders of magnitude. The problem is fundamentally that making 500,000 copies of one song is significantly worse (by a factor of 500) than making one copy each of a thousand songs. Claiming that this is hard to measure and using statutory damages to make up for it gets you nowhere, because proportionality requires you estimate the amount of actual damages in any event in order to set an appropriate level of statutory damages.

38 points by prajjwal 13y ago

tzs 13y ago

I took a look at the link they provide on that page to their article on excessive copyright penalties. They provide some examples there to illustrate their points. The first one is a case where they say "A website owner who copied two copyrighted poems, earning no profit and causing no more than minuscule economic harm, was ordered to pay $300,000". What they don't mention is that it was a commercial poetry website, and that its loss was a default judgement because they did not show up to contest the case. The way they describe it will give most readers the impression that it was some little guy being pushed around by Big Poetry. The third one they describe thusly: "Without guidelines, the penalties awarded change radically from case to case. One music industry company that sued three different defendants in separate suits for the same type of infringement won $10,000 per song in one case, $30,000 in another, and $50,000 in a third". Note that they identify the plaintiff as a "music industry company", but just call the people being sued "defendants". Is this because they want to suggest that the defendants are just ordinary music lovers, being unfairly harassed by the music industry? In fact, the defendants were also "music industry companies". They were record companies who were producing and selling on a large scale commercial recordings of plaintiff's compositions. The defendants were either underpaying royalties on compositions that they had licensed, or had failed to obtain licenses. The specifics of the cases differed as to number of works involved, and how many copies were sold of each. Note that statutory damages are per work infringed, not per copy. So, if Alice and Bob separately infringe your copyrighted song, with Alice selling 1000000 copies and Bob selling 1000 copies, then it would be quite reasonable, all else being equal, for statutory damages in your case against Alice to be much much higher per song than statutory damages in your case against Bob--because in both cases there is only song. Also note that courts consider deterrence value when deciding the statutory damages amount. The case against the defendant who got the $50k damages was actually a class action involving several hundred plaintiffs whose songs were being used without compensation by the defendant record company [1]. The case against the defendant who got the $10k was much smaller, with only a handful of songs involved [2]. Furthermore, there ARE guidelines for statutory damages. The judges in the above cited cases discuss them and how they arrived at the amounts they did. [1] http://www.leagle.com/decision/19902241909F2d1332_12019.xml/PEER%20INTERN.%20CORP.%20v.%20PAUSA%20RECORDS,%20INC http://www.leagle.com/decision/19902241909F2d1332_12019.xml/.... [2] http://www.leagle.com/decision/19951447887FSupp560_11346 http://www.leagle.com/decision/19951447887FSupp560_11346

LukeShu 13y ago
For reference, tza is referring to the page linked on the word "penalties" in the first sentence of the 7th paragraph: https://www.eff.org/deeplinks/2014/01/safeguard-public-domain-and-public-interest-fix-copyrights-crazy-penalties https://www.eff.org/deeplinks/2014/01/safeguard-public-domai...
AnthonyMouse 13y ago
Is your objection that an organization adverse to the policies advocated by the music industry is not painting the music industry in the most favorable light possible? Why would you expect them to? Put the rhetoric to one side. What objections do you have to their policy goals? > Also note that courts consider deterrence value when deciding the statutory damages amount. This is obviously a problem with the law. Deterrence is traditionally the domain of criminal law, not civil damage awards, and punitive damages in civil cases are a mistake in the absence of gross misconduct (and even then it is wise to require a higher standard of proof). Allowing disproportionately large damage awards under the civil standard of proof promotes litigiousness on the part of plaintiffs and increases the power of plaintiffs with illegitimate claims to coerce defendants into settlements against the risk of a jury not understanding the nuance of a complicated case. This is exactly the same problem with allowing prosecutors to make charges with overly harsh penalties, but worse because the party choosing whether to proceed is given a direct financial interest in the outcome. > Note that statutory damages are per work infringed, not per copy. So, if Alice and Bob separately infringe your copyrighted song, with Alice selling 1000000 copies and Bob selling 1000 copies, then it would be quite reasonable, all else being equal, for statutory damages in your case against Alice to be much much higher per song than statutory damages in your case against Bob--because in both cases there is only song It seems like you've already identified the problem -- that statutory damages per song rather than per copy make no sense. Compare this to the typical P2P file sharing case where a defendant might be sharing a thousand songs but won't have made more than a low single digit number of copies of the vast majority if not the entirety of the individual songs. In that case even the minimum statutory damages would exceed actual damages by two orders of magnitude. The problem is fundamentally that making 500,000 copies of one song is significantly worse (by a factor of 500) than making one copy each of a thousand songs. Claiming that this is hard to measure and using statutory damages to make up for it gets you nowhere, because proportionality requires you estimate the amount of actual damages in any event in order to set an appropriate level of statutory damages.