Tuesday, March 24, 2009

Labels again defend right to seek statutory damages in Tenenbaum case

The record label plaintiffs have filed their opposition to Joel Tenenbaum's motion to dismiss the plaintiffs' claim for statutory damages, arguing once again that the Constitution permits the range of statutory damages established by the Copyright Act. While the arguments here are not new, they are set out compellingly, and dispel some of the enduring myths about this case, including the falsehood that it is only about "seven songs" (it's also about the hundreds that Tenenbaum allegedly uploaded via his shared folder). As the brief's intro explains:
Plaintiffs sued Defendant based on substantial evidence that Defendant used the KaZaA file sharing program to upload (distribute) more than 800 sound recordings—including many of Plaintiffs’ copyrighted sound recordings—to potentially millions of other users on the file sharing network. Plaintiffs also allege that Defendant used KaZaA to download Plaintiffs’ copyrighted sound recordings from other KaZaA users. Although Defendant’s Answer denies liability, Defendant has largely admitted Plaintiffs’ allegations in his deposition, in pleadings, in the press, and in his letter to the Attorney General asking the government to intervene in the case.

Indeed, Defendant concedes that Exhibit B to Plaintiffs Complaint is a copy of his KaZaA shared folder and that he created and used the “sublimeguy14@KaZaA” username. Defendant further admits that he used similar file sharing programs for years before Plaintiffs caught him, starting with the infamous Napster file sharing program, and that he continued to engage in file sharing, switching from using KaZaA at home to using LimeWire when he was away at school. The evidence also shows that Defendant’s conduct was willful, and that Defendant knew what he was doing was wrong but did it anyway thinking he would not be caught.

In an effort to escape liability for his infringement, Defendant’s Motion seeks to overturn copyright law altogether, arguing that Congress somehow exceeded its authority by (1) creating a private right of enforcement and (2) allowing the victims of copyright infringement to seek statutory damages in lieu of actual damages. While Defendant and his counsel may be on a crusade to redraft the law to permit copyright infringement of music on the Internet, Plaintiffs are seeking to apply long-standing and well-grounded copyright law to address a real-life case with real-life economic and cultural consequences.

As demonstrated below, the Copyright Clause of the U.S. Constitution gives Congress the power “to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” Eldred v. Ashcroft, 537 U.S. 186, 222 (2003). The private enforcement of copyright laws by copyright holders and the availability of statutory damages are fundamental aspects of the intellectual property regime established by Congress. They reflect Congress’ rational decisions about how to achieve the goals of the Copyright Clause and Defendant has not and could not provide any factual or legal basis for challenging Congress’ decisions.
The hearing on this (and several other) motions is set for April 30. Whether that hearing will be webcast is...a subject that could fill volumes.

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