Why Ridiculous Statutory Rates For File Sharing Are Inappropriate

from the that's-not-what-statutory-rates-are-for dept

Wed, Nov 10th 2010 10:07am — Mike Masnick

While I definitely disagree with how Charlie Nesson conducted Joel Tenenbaum's defense in his file sharing case, Nesson has been posting some rather interesting posts on his blog lately, including his recent post highlighting the history of statutory awards for copyright infringement, as written by Pamela Samuelson and Tara Wheatland. While he (oddly) does not say where the writeup is from, you can find the full 2009 paper if you'd like.

We had already been discussing how the juries came up with their ridiculously high awards in the various Jammie Thomas trials, and one of our commenters (a lawyer, of course) insisted that the high rates were necessary to act as a deterrent, and even insisted this was the point of statutory rates. Except, as the history shows, that is not true at all. Statutory rates were designed to only apply when actual damages could not reasonably be assessed, and were mainly supposed to be about compensation, not deterrence:

Cases interpreting this new provision articulated its purpose as granting fair compensation to copyright owners when "the rules of law render difficult or impossible proof of damages or discovery of profits." In keeping with this purpose, some courts refused to order defendants to pay statutory damages when actual damages or profits could be proven. Indeed, the Supreme Court held that the 1909 Act's statutory damage provision was inapplicable when damages and profits were proven. If a successful plaintiff had suffered only nominal or no damage, the minimum of $ 250 might be awarded, but no more, in keeping with the policy that statutory damages should not be a penalty. Courts sometimes also refused to impose any statutory damages when the evidence showed no harm to the copyright owner and no profits to the infringer. In keeping with the no-penalty rule, appellate courts sometimes reduced large statutory damage awards to the minimum in close, although ultimately unsuccessful, fair use cases. Occasionally, appellate courts reduced statutory damage awards that were excessive in relation to approximate damages or profits.

We base our conclusion that statutory damages under the 1909 Act were mainly compensatory in purpose on several factors. First, the structure of § 101(b) identifies actual damages and defendant�s profits as the primary remedies for infringement, and statutory damages as an "in lieu" remedy. Second, the legislative history of the 1909 Act, as well as the case law interpreting it, view the primary impetus for adopting statutory damages as providing some relief when damages and/or profits are difficult to prove. Third, in addition to providing a range within which statutory damage awards should be made and setting a cap to prevent excessive awards, § 101(b) proffered guidelines for what Congress considered to be reasonable damages for various types of works. Fourth, the case law interpreting the 1909 Act's statutory damage provision generally focused on its compensatory function and respected the "no penalty" direction. This is not to say that statutory damage awards under the 1909 Act lacked deterrent purposes and functions. By setting a floor of $ 250 and giving courts discretion to award up to $ 5,000, Congress surely intended to deter infringement, but the compensatory impulse was most evident in the law as applied.

Useful historical context for those who insist that a fine of $62,500 for sharing a single song for totally non-profit reasons is somehow what the law actually intended.

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Filed Under: copyright, statutory rates

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Ima Fish (profile), 10 Nov 2010 @ 10:20am

"insisted that the high rates were necessary to act as a deterrent"

Deter what? It was never proven at Tenenbaum's trial that any unauthorized person shared songs off of her computer.

Essentially, Tenenbaum is being made to pay 1.5 million dollars for downloading 24 songs.

Think about that. 24 songs is about two CDs worth of music. If I steal two CDs from Walmart, I wouldn't have even committed a felony. I'd be charged with a misdemeanor and the most I'd have to pay back is the actual cost of the CDs. About 30 bucks, tops.

In the theft of the CD, Walmart would have lost real money. The actual cost of the CDs. While if I download the same songs, the most anyone would have lost would be a possible sale.

But apparently we want to deter the loss of possible sales more than the actual loss of property.

If anyone needs any evidence that the copyright middlemen have too much control over our government, here it is. You steal physical property, you get a slap on the wrist. You deny someone a sale. You're out over a million bucks.
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Anonymous Coward, 10 Nov 2010 @ 10:34am

Re:
I think you mean Thomas-Rasset, not Tennenbaum. ;)

But agreed, totally. That's why pointing out the difference between infringement and theft is necessary, not only because they *are* different sets of laws (I think of theft as subtraction and infringement as addition), but also because of the penalty involved. Not to mention that in civil infringement cases you need to pay for your own defense, unlike a lot of criminal offense situations.

For the **IAs - and judicial officials - to continually use these two terms synonymously verges on deceitful. Really, would the RIAA *want* infringement to be truly considered theft under the law? There's no money in it then.
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JNomics (profile), 10 Nov 2010 @ 10:38am

But there was lost profit in that the infringers chose to freely download material instead purchasing it. Calling it a non-profit use doesn't apply. Moreover, what about the precedent set by the rulings of SCOTUS justices that fundamentally alter the intended purpose of statutory damages? It's one thing to be disappointed by a ruling and another to protest that which is judicially sound.

JNomics
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Anonymous Coward, 10 Nov 2010 @ 10:51am

Re:
Prove the loss. Instead of downloading someone could record a song from the radio, and we all know that home taping didn't kill music.

The damages in these cases are absurd and abusive and lend themselves to reveal they are nothing like judicially sound.
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Ima Fish (profile), 10 Nov 2010 @ 10:52am

Re:
There was no loss of profit. Where did the profit go? Did the downloader's bank account get larger? There is no missing money.

At most the copyright holder lost a sale. A possible sale. One lost sale is worth $62,500.

To contrast, having two physical CDs stolen is only worth 30 bucks.
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Anonymous Coward, 10 Nov 2010 @ 10:53am

Can a trial in the US be used as an example to others (a "deterrent"?). As I understand, where I live a trial is only about that case and the rates have to do with damages/compensation, but it's illegal to use a court room into a showcase of bad behavior (meaning, you can't imply that you're doing that, ever). I may be wrong though, I'm not a lawyer. I don't see justice when your case is serving as an example. Even if I completely agree on trials establishing precedents (because if that was not the case then we wouldn't have equality), I think that a trial should be about the case in trial, not about making other people not want to behave as the tried person.
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Ima Fish (profile), 10 Nov 2010 @ 10:53am

Re: Re:
"I think you mean Thomas-Rasset, not Tennenbaum. ;)"

Thanks!
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lfroen (profile), 10 Nov 2010 @ 11:05am

That's where you wrong
>> but it's illegal to use a court room into a showcase of bad behavior
You wrong. It's perfectly legal, and that's a whole idea about statutory damages and deterrence.

It's probably inappropriately used in file-sharing cases, but that's another story.
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Richard (profile), 10 Nov 2010 @ 11:14am

Re:
But there was lost profit in that the infringers chose to freely download material instead purchasing it.

Inaccurate.

These people were prosecuted for "making available" not for downloading. It is not clear whether they actually acquired the material legally in the first place - but either way it would have had no effect on the trial. So it is clear that there is no evidence that act for which they were actually sued resulted in any lost profits - and it certainly didn't result in any financial return for those being sued.
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Anonymous Coward, 10 Nov 2010 @ 11:15am

Since I assume Mike is referring to me in this story, I'd like to point out that I never said the amount of damages awarded in the Thomas case was "necessary" to deter any particular type of infringement. In fact, I never said that the way the statutory damages provision as written is necessary to deter any particular type of infringement.

Rather, I said that availability of some damages multiplier above 1x actual damages or 3x actual damages is necessary to deter infringement.

What that multiplier should be in any particular case is not an easy question to answer, and I don't have a particular problem with leaving that to a jury to decide. Had I been on the Thomas jury, I probably would have argued for a lower damages award than the last jury came up with (but I don't know all the facts).
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Anonymous Coward, 10 Nov 2010 @ 11:17am

Re:
As a practical matter, yes (in the sense that anyone who hears about the case might be deterred).
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Richard (profile), 10 Nov 2010 @ 11:19am

Re: That's where you wrong
You wrong. It's perfectly legal, and that's a whole idea about statutory damages and deterrence.

Actually you're not completely accurate either.

"Statutory damages" are designed to cover cases where it may be difficult to determine actually damages - or for emotional distress where there are non-financial losses.

There is however a separate legal concept of "exemplary damages" which are intended to act as a deterrent.
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ac, 10 Nov 2010 @ 11:21am

Re: Re:
\- to continually use these two terms synonymously verges on *deceitful.
- to continually use these two terms synonymously verges on *perjury.

fixed that for you
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pringerX (profile), 10 Nov 2010 @ 11:22am

Is there precedent?
Pardon my ignorance (wish I had time to read through the paper and do a little research) but are there legal precedents for the use of statutory damages as described? It sure sounds like there are, and that they have been tossed to the wayside in favor of using statutory damages as a "deterrent"
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Anonymous Coward, 10 Nov 2010 @ 11:27am

Also, not sure why the reasoning or application for statutory damages in the 1909 Copyright Act is supposed to indicate that I was off base re: motivation for statutory damages in the current Copyright Act.
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Anonymous Coward, 10 Nov 2010 @ 11:39am

Here are a couple quotes from cases (from the 9th Circuit and the 2d Circuit, which get the most copyright cases), noting deterrence of infringement as a goal and consideration in awarding statutory damages. There are many, many others like this.

"When determining the amount of statutory damages to award for copyright infringement, courts consider...the deterrent effect on the infringer and third parties" Bryant v. Media Right Productions, Inc., 603 F.3d 135, 144 (2nd Cir. 2010).

"Statutory damages, on the other hand, may have different purposes. For instance, statutory damages may be appropriate when lost profits would be an inadequate measure. See Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 886 F.2d 1545 (9th Cir.1989), cert. denied, 494 U.S. 1017, 110 S.Ct. 1321, 108 L.Ed.2d 496 (1990). In addition, "when infringement is willful, the statutory damages award may be designed to penalize the infringer and to deter future violations." Chi-Boy Music, 930 F.2d at 1228-29; see also Cable/Home Communication Corp. v. Network Prods., Inc., 902 F.2d 829, 851 (11th Cir.1990). The punitive and deterrent purposes explain the heightened maximum award of $100,000 per infringement under section 504(c)(2). Thus, statutory damages may serve completely different purposes than actual damages." Nintendo of America, Inc. v. Dragon Pacific Intern., 40 F.3d 1007, 1011 (9th Cir. 1994).
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Anonymous Coward, 10 Nov 2010 @ 11:41am

Re: Re: That's where you wrong
As I noted in the prior discussion Mike mentions, and below, with citations, deterrence *is* a proper consideration when applying copyright statutory damages.
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Anonymous Coward, 10 Nov 2010 @ 11:44am

Re:
Since I assume Mike is referring to me in this story, I'd like to point out that I never said the amount of damages awarded in the Thomas case was "necessary" to deter any particular type of infringement.

I too noticed that Mike mischaracterized your position in the article. He tends to do that when discussing views he opposes. I don't think it's a conscious move on his part. Exaggerating the other side's views just comes naturally since he's so biased.
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Anonymous Coward, 10 Nov 2010 @ 11:49am

Re: Is there precedent?
As I posted below, there is valid and binding legal precedent directing courts to consider deterrence when determining an award of statutory damages.
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Anonymous Coward, 10 Nov 2010 @ 11:55am

Re:
And that's the problem with Mike's whole premise in this article. The law in 1909 is different than the law now. To complain that the current law isn't true to the law as it was 100 years ago is just silly.

In 1909 Plessy v. Ferguson was good law and the separate but equal doctrine was in effect. Things changed, and in 1954 Brown v. Board of Education was handed down. No more separate but equal. Should we all be lamenting the loss of segregation in public schools? According to Mike's logic, the answer is yes.

The law changed. The damages handed down by the jury were well within the law as written. If Congress didn't think the law was being applied properly, they would change it. The most recent changes, including the NET Act, only increased the amount of statutory damages. Obviously Congress is happy with these high damage awards.

For Mike to say that this is not "what the law actually intended" just reeks of desperation. The damages in this case are exactly 100% what the law intended. Mike's so delusional that he's applying the law from 100 years ago to a case that is happening today. Look to what the law says now, Mike. Or can you not understand the difference?

And don't get me wrong--I don't agree with these crazy awards of damages. But I'm not so desperate as to pretend that the jury did anything outside of what the law actually says. Only silly people like Mike who wear blinders and are opposed to seeing the truth in anything that differs from their opinion would deny that.
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Anonymous Coward, 10 Nov 2010 @ 11:56am

Re: Re:
"I don't think it's a conscious move on his part."

Not sure. He doesn't often own up when his mischaracterizations or exaggerations are pointed out. The only time I can recall him doing so was when someone who basically agreed with him on the overal issue pointed out his mistake (I think he said "fair enough"), when others who basically disagree with him on the overal issue had pointed out the same mistake numerous times without any such acknowledgement.

Of course, that's just based on my limited knowledge.
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Mike C. (profile), 10 Nov 2010 @ 11:56am

Re: The point... you missed it
The point of calling you out in relation to the article was that deterrence was not supposed to be a primary factor for consideration. The primary factor to be considered is compensation of actual damages with statuatory rates providing an option for "in lieu" damages.
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Anonymous Coward, 10 Nov 2010 @ 11:59am

Re: Re: The point... you missed it
He doesn't need to inaccurately describe my comments to make that point, does he?
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Anonymous Coward, 10 Nov 2010 @ 12:01pm

Re: Re:
To be fair to Mike, the blog posting he refers to is the real source of this confusion. Not sure whether the Samuelson article is better (although the one Samuelson article I've actually read got a case holding 100% wrong, so I wouldn't give the benefit of the doubt).
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Anonymous Coward, 10 Nov 2010 @ 12:05pm

Re:
Here are a couple quotes from cases (from the 9th Circuit and the 2d Circuit, which get the most copyright cases), noting deterrence of infringement as a goal and consideration in awarding statutory damages. There are many, many others like this.

Right. There is absolutely no doubt that the law as it stands now allows exemplary statutory damages.

Mike is whining about how 100 years ago we did it differently. He thinks that since we do it differently now, we must be doing it wrong.

That position is just incredibly silly and desperate, but it really is quite amusing.

I guess Mike would be OK if we went back to not letting women vote. I mean, that's how we did it 100 years ago, right?
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Richard (profile), 10 Nov 2010 @ 12:10pm

Re: Re: Re: That's where you wrong
Of course a court may choose to apply "exemplary damages" within the regime of a "statutory damages" award. However statutory damages of themselves are not intended to be exemplary. They are simply meant to sidestep the need to calculate actual damages where this cannot be done easily.
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Anonymous Coward, 10 Nov 2010 @ 12:11pm

Re: Re: Re:
Not sure. He doesn't often own up when his mischaracterizations or exaggerations are pointed out.

Perhaps Mike's propensity to mischaracterize opposing views is just simple willful ignorance. And you're right--he hardly ever fesses up when called out for his mistakes. That's a shame, because doing so would give him some much needed credibility.
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Anonymous Coward, 10 Nov 2010 @ 12:16pm

Re: Re: Re: Re: That's where you wrong
"They are simply meant to sidestep the need to calculate actual damages where this cannot be done easily."

Says who? The blog posting Mike links to references the 1909 Copyright Act.

The actual, current, binding law in at least the Second Circuit (probably others, but not sure) lists deterrence as one of the factors that courts should consider when determining statutory damages.
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Mike C. (profile), 10 Nov 2010 @ 12:18pm

Re: Re: Re: The point... you missed it
That's because in typical lawyer fashion, you completely failed to provide any concrete information about what numbers you believed were fair. You indicated that you felt 1x - 3x compensation was too low in a discussion about high statuatory damages. The implication is that you agree with the high amounts. Your failure to clarify led to the misunderstanding.

Maybe next time, provide some clarity in your responses. While not my personal opinion, perhaps something like "I do believe statuatory damages need to be sufficiently high to provide a disincentive, it also stands to reason that there should be a reasonable upper limit. It also stands to reason that the amount needs to be decided on a case by case basis."

See... now that wasn't so hard, was it?
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Anonymous Coward, 10 Nov 2010 @ 12:19pm

Re: Re: Re:
To be fair to Mike, the blog posting he refers to is the real source of this confusion. Not sure whether the Samuelson article is better (although the one Samuelson article I've actually read got a case holding 100% wrong, so I wouldn't give the benefit of the doubt).

LOL! Even if Prof. Samuelson is correct that the law was different 100 years ago (and she may or may not be), that doesn't change the fact of what the law says today. Laws change with the times. You can't just cherry-pick a law you agree with from a different time and say that since we aren't doing it that way now, we must be doing it wrong. That's just silly. The world is a much different place today than it was then.
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darryl, 10 Nov 2010 @ 12:26pm

totally non-profit and a 'single song'.. wrong !!!!..
Why Ridiculous Statutory Rates For File Sharing Are Inappropriate,

Always with the crazy, double talk heading's !!!! :)

Maybe you are right, ridiculous things are sometimes inappropriate !!!.

Maybe, what you were trying to say, is

Why NORMAL Statutory Rates For File Sharing Are Inappropriate.

Useful historical context for those who insist that a fine of $62,500 for sharing a single song for totally non-profit reasons is somehow what the law actually intended.

Ofcourse that is not really true is it, show us where it was found in court that it was 'totally non-profit' and 'for sharing a single song'.

NO, Mike that is NOT TRUE, (what is another word for NOT TRUE).

She was fined $62,500 PER SONG for 24 songs, out of 1700 that she was originally indited for.
They reduced the number of songs to a managable figure for the court.

They obviously proved to several juries that it WAS FOR PROFIT, and no WHERE at all does it say or was it decided in law that it was for "totally non-profit".

Also, the wording of your article implies that she only shared 24 songs with a 'friend' or a small group of people.

that is not true either, she downloaded and uploaded over 1700 songs (150 CD's worth), and made them available to ANYONE, like all file sharing..

She got caught, and pleaded stupidity, and the court acted appropriately.. Maybe she will think twice next time.

So how do you get the 'totally non-profit' line Mike, where is your source for that ? or did you just make it up..
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Anonymous Coward, 10 Nov 2010 @ 12:28pm

Re: Re: Re: Re:
"You can't just cherry-pick a law you agree with from a different time and say that since we aren't doing it that way now, we must be doing it wrong. That's just silly. "

Well, yeah. I certainly agree.

And it would be one thing if Mike made some argument that the law *should* be this way or that way, for X, Y, and Z reasons. That's sort of what I assume the Samuelson article does.

But instead he says some stupid lawyer (me) got the law wrong when commenting on the last article, which is just false.
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Anonymous Coward, 10 Nov 2010 @ 12:41pm

Re: Re: Re: Re: The point... you missed it
Maybe something along the lines of:

"In this case, I also agree that significantly less than $1.5 million would be an adequate disincentive, but allowing up to $150,000 per work is not necessarily outrageous for other cases."

Or maybe clarifying that one of my posts said: "3X damages are not enough in a case like this. It does not say damages of 750X or more are necessary."

Maybe something like that? Would do.

It's a shame I didn't actually post those exact words.
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Anonymous Coward, 10 Nov 2010 @ 12:42pm

Re: Re: Re: Re: Re: The point... you missed it
*sarcasm...cuz, y'know, I actually did post those exact words.
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Anonymous Coward, 10 Nov 2010 @ 12:44pm

Re: totally non-profit and a 'single song'.. wrong !!!!..
"They obviously proved to several juries that it WAS FOR PROFIT"

Wait, what? I don't think that's true (but I don't know all the facts)
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Free Capitalist (profile), 10 Nov 2010 @ 12:56pm

Re:
It's one thing to be disappointed by a ruling and another to protest that which is judicially sound permitted.

Fixed.

I think there are those who would agree that some SCOTUS precedents need to be, and in fact have been, reversed down the road.

What seems "sound" to the current flock may look "stupid and corrupt" to a future generation.
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Free Capitalist (profile), 10 Nov 2010 @ 12:58pm

Re: Re:
bah stupid deprecated memory.

wanted to strike "sound" and add "permitted".
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Gwiz, 10 Nov 2010 @ 12:58pm

Re: totally non-profit and a 'single song'.. wrong !!!!..
They obviously proved to several juries that it WAS FOR PROFIT, and no WHERE at all does it say or was it decided in law that it was for "totally non-profit".

Wait. What? How would have one made a profit sharing songs on Kazaa? I thought it was just a peer to peer sharing program.
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Anonymous Coward, 10 Nov 2010 @ 12:58pm

Lets look at HOW the law changes with the times....
Does the law change with the times because the PEOPLE make changes happen, or does it change because MONEY is applied to the right people to get the laws to change?

Regardless of any other facts, I think we can all agree that 'We the People' have had little to no impact on the changes that have been made in copyright laws over the years. While the corporate agents (aka "Shills" from the RIAA, MPAA, collection societies, etc) have been buying congress critters and senators left and right with campaign contributions, lavish retreats and gifts, pro-copyright parties, etc.

So yes, the laws have changed, but that doesn't mean that we the people have to respect or obey the laws that the entertainment industry has purchased. Jury nullification gives the people (those who have a clue and understand the issues) a chance to influence those laws, so why isn't this concept presented as an option to the people in cases like this? Because the corporate masters don't want it to be an option, imagine if 12 people (repeated enough times in enough cases) could completely nullify the $100-$500 million (I'm being conservative here) the industry spent buying those laws. They wouldn't like that to happen, so they somehow made sure that it's not even presented as an option.

In the retrial recently discussed, when the judge presented the options of:
statutory damages may range from $750 to $30,000 or up to $150,000 for willful infringement.
Why not also include the option:
Or if you feel that this punishment far exceeds the crime, you can award the cost of purchasing the 24 songs from I-tunes, for a total of $23.76 (assuming .99 pricing at the time).

The jury doesn't HAVE to follow the judges instructions, or the letter of the law, but they all think they do, and so like the good little sheeple that they are, they do.
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Free Capitalist (profile), 10 Nov 2010 @ 1:11pm

Re: Re: Re: That's where you wrong
As I noted in the prior discussion Mike mentions, and below, with citations, deterrence *is* a proper consideration when applying copyright statutory damages.

I accept that if wrongdoing is proven, deterrence of future acts by the same individual should be considered (or rejected) when calculating damaged.

However the damaged awarded in the infamous RIAA case seem to be calculated to act as a public deterrent well beyond what would be necessary for the individuals involved (especially considering their potential income).

Do you think those awards were appropriate deterrence for the individuals involved? Because of the extraordinary awards, some of us think the whole campaign smacks of social engineering, which in turn is abuse of the justice system.
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Free Capitalist (profile), 10 Nov 2010 @ 1:12pm

Re: Re: Re: Re: That's where you wrong
where the hell did my 's' key go???
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out_of_the_blue, 10 Nov 2010 @ 1:18pm

"Law" is what *should* be; "statute" is totally arbitrary corporatism.
Easy definition to keep in mind, cuts through all the twaddle that lawyers (members of a secretive feudal guild) say.
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Anonymous Coward, 10 Nov 2010 @ 1:21pm

Re: Re: Re: Re: That's where you wrong
So, a couple points.

It is legally permissible to consider public deterrence in setting statutory damage awards. I only mention that because this article and some comments seem to suggest that it's not.

As I've posted elsewhere, I probably would have argued for a lower damages award in the Thomas case, though I don't know all the facts.
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Anonymous Coward, 10 Nov 2010 @ 1:26pm

Re: "Law" is what *should* be; "statute" is totally arbitrary corporatism.
Easy, but certainly not a commonly accepted definition.

Bad laws exist. It's good to recognize the distinction between law and justice.
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Free Capitalist (profile), 10 Nov 2010 @ 1:34pm

Re: Re: Re: Re: Re: That's where you wrong
It is legally permissible to consider public deterrence in setting statutory damage awards. I only mention that because this article and some comments seem to suggest that it's not.

Yikes, had no idea. Not a lawyer, but I find it hard to believe that, at least in these RIAA cases, the (offending) individuals were given proper consideration or justice in the damage consideration. There has to be a line where public deterrence must be limited so that reasonable justice for the situation and people actually involved is served.

This is a tough crowd. Appreciate your sharing opinions.
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Anonymous Coward, 10 Nov 2010 @ 1:47pm

Re: Re: Re: Re: Re: Re: That's where you wrong
"I find it hard to believe that, at least in these RIAA cases, the (offending) individuals were given proper consideration or justice in the damage consideration"

Well, Thomas got three separate trials on damages, and the award went up each time. Hard to argue she didn't have her day in court.

I think we'll see whether the award will be reduced either (a) by the trial judge as a matter of law, or (b) on appeal. There's some unsettled law on the extent to which statutory damages must be tied to actual damages and whether/how that applies to the copyright act.

It will be interesting to see the results.
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Anonymous Coward, 10 Nov 2010 @ 2:58pm

Re: Lets look at HOW the law changes with the times....
"Why not also include the option:
Or if you feel that this punishment far exceeds the crime, you can award the cost of purchasing the 24 songs from I-tunes, for a total of $23.76 (assuming .99 pricing at the time)."

Because that's not the law. I know jury nullification proponents don't like to hear this, but courts don't view jury nullification as a "right" or legally appropriate.
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Mike Masnick (profile), 10 Nov 2010 @ 3:00pm

Re:
Here are a couple quotes from cases (from the 9th Circuit and the 2d Circuit, which get the most copyright cases), noting deterrence of infringement as a goal and consideration in awarding statutory damages. There are many, many others like this.

Indeed. Never said the courts haven't twisted this. Just pointing out the original intent of statutory damages, and why it might be wise to remember that when claiming that the purpose is deterrence.
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Mike Masnick (profile), 10 Nov 2010 @ 3:02pm

Re:
Also, not sure why the reasoning or application for statutory damages in the 1909 Copyright Act is supposed to indicate that I was off base re: motivation for statutory damages in the current Copyright Act.

Because the discussion is about the original intention of statutory damages, and to show how they've since been twisted.

Sorry. Thought it was obvious.
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Mike Masnick (profile), 10 Nov 2010 @ 3:05pm

Re: Re:
I guess Mike would be OK if we went back to not letting women vote. I mean, that's how we did it 100 years ago, right?

Wait. You really think if someone says this law was better 100 years ago, they have to say that ALL laws were better 100 years ago? Seriously?
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Christopher (profile), 10 Nov 2010 @ 3:15pm

They aren't just 'inappropriate'.... they are UNCONSTITUTIONAL in the United States.
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Christopher (profile), 10 Nov 2010 @ 3:19pm

Re: Re: Lets look at HOW the law changes with the times....
Too bad.... the Founding Fathers said on numerous occasions that jury nullification WAS right AND legally appropriate!
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Anonymous Coward, 10 Nov 2010 @ 3:28pm

Re: Re: Re: Re:
You know what else needs much needed credibility? Copyright law.
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Anonymous Coward, 10 Nov 2010 @ 3:31pm

Re: Re: Lets look at HOW the law changes with the times....
Yeah! If you want the law changed then just give money to congress. It's really easy to do.
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Anonymous Coward, 10 Nov 2010 @ 4:11pm

Re: Deterrent
I don't see how this 1.5 million judgement against Thomas-Rasset is any kind of future deterrent for her. She can never possibly pay this off. At this point she can download and host every song ever produced and have nothing to lose. What, a trillion dollar award is now going to deter her?
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Anonymous Coward, 10 Nov 2010 @ 4:33pm

Re: Re:
Well, you said that "the history shows, that [i.e., my point from the prior comments] is not true at all."

My comments regarding deterrence as a motivation for statutory damages under the current copyright act being applied to a current court case.

In fact, your article title is "Why Ridiculous Statutory Rates For File Sharing *Are* Inappropriate"

So, I didn't find it "obvious" that we were only talking about the "original" (i.e., 1909) intent for statutory damages.
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Anonymous Coward, 10 Nov 2010 @ 4:40pm

Re: Re:
Whether or not deterrence was or should have been considered in drafting or applying the 1909 act, I don't think courts have "twisted" anything in applying the 1976 act.

It's a different act, and I don't think there's anything wrong or "twisted" with acknowledging deterrence as a policy motivation behind the current statutory damages provisions.

Moreover, while lots of modern copyright law developments are unjustified, I think deterrence-related damages are wholly justified (which is not to say that I think they've been applied in an appropriate amount in every case).
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Michael Whitetail, 10 Nov 2010 @ 7:20pm

Re: Re: Re: Re:
Damn....

Sure is samefag in here....
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Anonymous Coward, 10 Nov 2010 @ 8:26pm

Re: Re: Re:
Ta!
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Richard (profile), 11 Nov 2010 @ 3:48am

Re: Re: Re: Re: Re: That's where you wrong
deterrence as one of the factors that courts should consider when determining statutory damages.

Deterrence i=s a factor in ALL damages - the fact that they are statutory is irrelevant.

Please make an effort to separate co-incidence from causation.
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Anonymous Coward, 11 Nov 2010 @ 7:55am

Re: Re: Re:
Wait. You really think if someone says this law was better 100 years ago, they have to say that ALL laws were better 100 years ago? Seriously?

No, Mike. We all know you cherry-pick. That's not the point.

The point is that your conclusion that damages awarded under the law as it stands today are not "what the law actually intended" since the law was different 100 years ago is just plain silly.

The analogy, which you apparently don't grasp, is that it's like saying that the law that allows women to vote today is not "what the law actually intended" because 100 years ago we didn't let women vote.

It just makes no sense. And it's obvious you'll grasp at anything to try to make your points.
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Anonymous Coward, 11 Nov 2010 @ 8:53am

"Useful historical context for those who insist that a fine of $62,500 for sharing a single song for totally non-profit reasons is somehow what the law actually intended."

Assuming we are talking about a work preserved under copyright, would it not be more correct to pose the above as:

"Useful historical context for those who insist that a fine of $62,500 for the worldwide distribution without authorization from the rights holder of a single song for totally non-profit reasons is somehow what the law actually intended."

While many argue that theft and infringement are not equivalents, there is no doubt that P2P sharing of a song without the permission of the rights holder is fully equivalent to impermissible distribution.
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Anonymous Coward, 11 Nov 2010 @ 9:59am

Re: Re: Re: Re: Re: Re: That's where you wrong
So, no support whatsoever for your claim that statutory damages "are simply meant to sidestep the need to calculate actual damages where this cannot be done easily?"

Not one teensy weensy little citation? Anywhere? Not even to some other internet expert?
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Mike Masnick (profile), 11 Nov 2010 @ 10:17am

Re: Re: Re: Re:
The analogy, which you apparently don't grasp, is that it's like saying that the law that allows women to vote today is not "what the law actually intended" because 100 years ago we didn't let women vote.

Uh, that may be the dumbest thing you've said. No wonder you're anonymous again.

No one said that "what the law intended 100 years ago means it's what the law must be today." What this did was explain the PURPOSE of this law.

We made an EXPLICIT decision to let women vote, by noting that it was a MISTAKE that we did not. That did not happen here. Things changed, but it changed because people -- biased lawyers, mainly -- twisted the law to pretend it meant something it did not.

It just makes no sense. And it's obvious you'll grasp at anything to try to make your points.

I don't need to grasp at anything when I'm right.
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Anonymous Coward, 11 Nov 2010 @ 12:01pm

Re: Re: Re: Re: Re:
Uh, that may be the dumbest thing you've said. No wonder you're anonymous again.

Whether I choose to post anonymously or not requires no comment from you. If you do not respect my privacy going forward, I will simply use proxies. Shame on you, Mike. Have you no respect for the privacy of your commentators?

No one said that "what the law intended 100 years ago means it's what the law must be today." What this did was explain the PURPOSE of this law.

But the purpose of the law 100 years ago has little to do with the law today. That's the point you don't seem to understand.

We made an EXPLICIT decision to let women vote, by noting that it was a MISTAKE that we did not. That did not happen here. Things changed, but it changed because people -- biased lawyers, mainly -- twisted the law to pretend it meant something it did not.

And it was "biased lawyers" who created the law as it was 100 years ago. Who's to say it's more "twisted" now than it was then? That's obviously your bias.

I don't need to grasp at anything when I'm right.

No, Mike. You're wrong. You are still complaining that the law today is different than it was 100 years ago, and somehow you think that means something that it doesn't.
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Anonymous Coward, 11 Nov 2010 @ 1:03pm

Re: Re: Re: Re: Re:
"Things changed, but it changed because people -- biased lawyers, mainly -- twisted the law to pretend it meant something it did not."

What support do you have for that assertion?
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Mike Masnick (profile), 11 Nov 2010 @ 5:35pm

Re: Re: Re: Re: Re: Re:
That's obviously your bias.

Informed opinion is not bias.
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Mike Masnick (profile), 11 Nov 2010 @ 5:36pm

Re: Re: Re: Re: Re: Re:
What support do you have for that assertion?

The history of copyright law?
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Richard (profile), 12 Nov 2010 @ 9:19am

Re: Re: Re: Re: Re: Re: Re: That's where you wrong
You can look on WIkipedia - or at the original legislation (that Mike has already pointed to)
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Anonymous Coward, 12 Nov 2010 @ 9:55am

Re: Re: Re: Re: Re: Re: Re: Re: That's where you wrong
I prefer relying on the actual, current, binding law (cited below from the 9th and 2d circuit) which contradicts your unsupported assertion, rather than Wikipedia or an out-of-date, no-longer-applicable statute.
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Anonymous Coward, 12 Nov 2010 @ 9:57am

Re: Re: Re: Re: Re: Re: Re:
Do you have a real answer, or is that it?
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Modplan (profile), 12 Nov 2010 @ 3:44pm

Re: Re: Re:
Where in the 1976 act was anything mentioned about statutory damages being for or including deterrent purposes?
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