tag:blogger.com,1999:blog-5383512304639632735.post8391670165684207206..comments2024-01-23T07:34:52.253-08:00Comments on Copyrights & Campaigns: Court slashes Tenenbaum award by 90% on constitutional groundsBen Sheffnerhttp://www.blogger.com/profile/06477793715765992689noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-5383512304639632735.post-7048007628313878012010-07-16T20:38:14.233-07:002010-07-16T20:38:14.233-07:00I'm a little offtopic here, I apologize in adv...I'm a little offtopic here, I apologize in advance.<br /><br />But why are there so many LAWYERS with pro-copyright blogs? Engineers/technical blogs tend to be more anti-copyright.<br /><br />Copyright must be a really big money maker for the law industry, more so then for the technology industry.<br /><br />I also think you are using the word "copyleft" incorrectly. Copyleft is not a political faction, or a adjective for a person or a group. It is a category of copyright license that encourges wide dissemination instead of restriction.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-90345802916462637152010-07-15T23:45:13.526-07:002010-07-15T23:45:13.526-07:00Did the Judge just ignore the doctrine of constitu...Did the Judge just ignore the doctrine of constitutional avoidance?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-65455575307897189472010-07-15T14:07:36.592-07:002010-07-15T14:07:36.592-07:00Great job Gertner! Now there's all the more i...Great job Gertner! Now there's all the more incentive for multinational companies to pirate content to their hearts content, with FREE immunity!!: http://lawblog.legalmatch.com/2010/06/01/the-internet-piracy-revolution-protecting-your-intellectual-property-rights/Leroy Jnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-27221035582529030772010-07-15T08:10:45.572-07:002010-07-15T08:10:45.572-07:00Ben, a clear and well written opinion but I think ...Ben, a clear and well written opinion but I think the court got it wrong. Let me explain (if I can at some length)<br /><br />There are a number of reasons why the Gore guideposts do not apply: <br /><br />A. Gore dealt with punitive damages which are designed to punish in amounts that are usually unrestrained. But statutory damages are different. They are not only intended to punish but to compensate, impose appropriate damages on wrongdoers, deter future infringements and promote the creation of intellectual property.<br /><br />B. Gore’s guideposts derive from the need to give defendant notice of the severity of the penalty that may be imposed. But the statutory damages scheme gives notice. Congress has established and periodically adjusted the range of statutory damages and a verdict within that range is entitled to substantial deference.<br /><br />C. The second Gore guidepost weighs the relationship between the punitive award and the actual harm. But this guidepost has no application to statutory damages which may be awarded without any showing of harm.<br /><br />D. The third Gore guidepost judges the propriety of the award by focusing on its relationship with the applicable civil penalty. But this guidepost makes no sense here because the award is by definition the applicable civil penalty.<br /><br />Tenenbaum attempted to avoid the identity between the award and the penalty by deciding that Congress did not intend to apply the statutory damages scheme to “noncommercial infringers sharing and downloading music through peer-to peer networks.” The court reached this extraordinary conclusion by a “careful review” of the “legislative history” of the Digital Theft Deterrence Act of 1999. But the history the court credited consisted of off-hand comments made by Senators Hatch and Leahy at hearings held after Congress passed that statue.<br /><br />Hopefully this result will be reversed on appeal. If not it will erode copyright enforcement. If a copyright owner has to demonstrate actual damages as a condition of recovering statutory damages many cases will never be prosecuted for a number of reasons. First, the value of a copyright is, by its nature, difficult to establish. How much is an unpublished novel worth? Second, in cases involving public performances, the only direct loss is the lost license fee; as the Copyright Office recognized years ago, an award in such amount is an invitation to infringe with no risk of loss to the infringer. Third, actual damages are often less than the cost of detecting, investigation and, for sure, litigating. So why bother. <br />I have just posted many of these comments plus the post trial briefs of the plaintiffs and the government on my blog at http://www.ipinbrief.com/are/. Ben, I hope your readers find all of this useful.Andrew Bergerhttp://www.ipinbrief.comnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-35812763322109928972010-07-14T10:11:29.174-07:002010-07-14T10:11:29.174-07:00Did I read this right? Remittitur (as was the cas...Did I read this right? Remittitur (as was the case in Minnesota) has been bypassed in favor of a decision based upon substantive due process?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-41400577925811452432010-07-12T13:39:02.565-07:002010-07-12T13:39:02.565-07:00Shazam, got ya on Due Process.
The amount is cl...Shazam, got ya on Due Process. <br /><br />The amount is clearly still excessive considering the person to whom the decision is directed. If it were MJ, Britany, Gates, or some other million-billionaire then perhaps a decision in the tens of thousands would be a reasonable deterrent. As is, a couple hundred at most, perhaps a thousand in the most egregious case of individual infringement possible, is better based in reality.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-88988335091280762722010-07-09T21:15:55.380-07:002010-07-09T21:15:55.380-07:00As you review Judge Gertner's, perhaps you may...As you review Judge Gertner's, perhaps you may wish to consider if she gave due consideration to rights infringed other than "duplication" (e.g., "distribution").Anonymousnoreply@blogger.com