Tuesday, April 21, 2009

Labels respond to Free Software Foundation amicus brief in Tenenbaum case

In the Joel Tenenbaum case, the plaintiffs have filed a response to the amicus brief filed by the Free Software Foundation, arguing that the cases cited in the FSF brief do not support Tenenbaum's claim that the Copyright Act's statutory damages provisions are subject to the limitations on punitive damages established in BMW v. Gore. (But you already knew that.) The plaintiffs' brief also takes issue with Tenenbaum's (and FSF's) assertion that their damages are at worst 35 cents per song:
To support its proportionality argument, FSF contends that Plaintiffs’ lost profits in the case should be based on a per/download loss of “approximately 35 cents.” Apart from the fact that the argument relies on “facts” not in the record in this case, the contention ignores the nature of Defendant’s infringement. Defendant has not only infringed Plaintiffs’ works through downloading, he has also distributed Plaintiffs’ works for years to potentially millions of other file sharers. The harm to Plaintiffs from such massive distribution over a period of many years is incalculable – and undeniably worth exponentially more than 35 cents. Indeed, the cost of an unrestricted license to distribute Plaintiffs’ copyrighted works for free on the Internet would be astronomical. Thus, Defendant’s suggestion that Plaintiffs’ lost profits total 35 cents per download misconstrues the nature of Defendant’s infringement and should be rejected.
Technically, the plaintiffs' brief won't be considered by the district court unless it first grants this motion for leave to file. The hearing on Tenenbaum's motion to dismiss the claim for statutory damages on constitutional grounds is set for April 30.

(h/t Recording Industry vs. The People)

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