Ridiculous Statutory Damages Rules Mean Judge Regretfully Awards $3.6 Million For Circumvention Of DRM
from the totally-out-of-touch-with-reality dept
Eric Goldman points us to yet another example of ridiculous statutory damages rules around copyright creating awards in court cases that have no connection to any real harm. And, this time, it involves the violation of the highly questionable (and controversial) anti-circumvention clause of the DMCA. The case involves an online game, MapleStory, and some people who set up an alternate server, UMaple, allowing users to play the game with the official game client, but without logging into the official MapleStory servers. This kind of thing happens all the time.In this case, the people behind UMaple apparently ignored the lawsuit, leading to a default judgment. However, even there, it appears that MapleStory went too far, and the judge is clearly annoyed with them at times. Even though judges often side entirely with winners in default judgments, in this case, the judge repeatedly expresses skepticism about arguments made for determining "damages" to be awarded. Thus on most of the claims, the judge seems to look for ways to avoid giving MapleStory much, if any, money. For example, in determining profits made by UMaple, the judge repeatedly knocks MapleStory for failing to show what profits were specific to UMaple's infringement, telling it that it can't just assume all money made by UMaple belongs to MapleStory. So the judge dumps a request for $68,764.23 in profits made by UMaple down to just $398.98.
But... then we get to the anti-circumvention stuff. Here, the ridiculous statutory rates set a minimum of $200 per infringement. Multiply that by 17,938 users of UMaple... and you get $3.6 million. MapleStory, of course, asked for the statutory maximum of $44,845,000, which the court refuses to grant. In fact, the judge chides MapleStory for its request for the maximum -- even to the point of noting that the arguments by MapleStory make it "question very seriously whether Plaintiff intended to actively mislead the Court or whether these oversights were merely the result of poor legal research."
The court then notes that the minimum statutory amount -- the $3.6 million -- is already "a significant windfall to Plaintiff far in excess of any amount necessary to deter future infringing conduct," and also that the "award here likely bears little plausible relationship to Plaintiff’s actual damages." In fact, it sounds like the court would very much like to decrease the amount, but notes that "nevertheless, the court is powerless to deviate from the DMCA's statutory minimum."
As Goldman says, this is "guffaw-inducing", because the minimum award seems to have no bearing on the actual seriousness of the infringement. As he points out:
this case does provide an excellent example of the ridiculousness of anti-circumvention statutory damages. $3.4M can't be the right damages award in this case, and it's so guffaw-inducing that it further erodes the legitimacy of our copyright rules.Indeed. And yet no one seems interested in exploring just how disconnected statutory damages are from reality.
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Filed Under: anti-circumvention, damages, dmca, eric goldman, maplestory, umaple
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Where "mass scale" = 17,938 users? Yeah, it was easy, even common, to infringe on that level fifteen years ago.
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You are wrong they were not intended for deterrence - they were simply a way of assessing damages in cases where the actual damages were difficult to calculate. I believe earlier versions of the law allowed actual damages to be substituted where they could easily be assessed - even if that reaulted in a lower award.
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I seriously doubt that the motivation behind this lawsuit was actually shutting down UMaple. I mean they had to use questionable means just to come up with a damages estimate of $68k. No, I would suggest that whoever makes the call on this sort of thing was shown that they would most likely win the lawsuit very quickly and that the minimum award was $3.6M. Without thinking things through to conclusion (like how they were actually going to collect said award) they approved the lawsuit and the lawyers took off from there.
No, awards should be limited to damages + legal fees. In the case where statutory damages need to be used as a deterrent they should not go to the plaintiff. That's just begging for abuse.
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It's a violation of my property rights -- once I own a thing, I should be able to legally muck with it in whatever way I want -- and it prevents me from exercising my other legal rights.
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/s
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Hysteria driven by ignorance.
It really doesn't matter if you fire one shot at a time or 9.
The gun itself really can't handle it. That's why this feature was taken off the military version of the rifle.
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Sure why not?
But if the result is illegal you will have to destroy it.
There is a diffrence betwen modifying something. and owning something that is in it self illegal.
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...but given that the only Amendment your country seems to respect is the Second, it still makes it an insanely dumb comparison.
Sure, modify anything you like to go as automatic as possible. Then watch how many people die in shootings.
Break DRM on something... how many people are actually hurt?
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Be careful, I am European, and your claim that no one need an AR-15 does not take into account the state of gun laws in Switzerland, Germany and the Czech Republic.
Guns for self-defense should be a natural and inalienable right when the state fails to protect its citizens from violent crime.
The European soft on crime justice (not the fake drug or IP crimes but real violent ones) is sickening.
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What about a Sig 550?
Is Switzerland still part of Europe?
I know it is difficult to keep up with the constantly changing borders and who is in what union etc, but last time I checked it still was.
Just because there is a weapon in every household does not mean it will lead to mayhem.
(jic)
http://en.wikipedia.org/wiki/Gun_politics_in_Switzerland
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Besides, they are a very small proportion of the overall population of Europe - kind of like assuming NYC = USA.
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And yet so many people are willing to judge all of America based on our politicians. b^_^
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As for this fantastic example of how batshit retarded the DMCA is, they probably should have made an attempt to defend themselves legally.
It's also nice to know there's a judge out there who realizes this ruling will not accomplish anything in the long run except hurt consumers.
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I bet you think owning any fully automatic weapon is completely illegal too?
Yet, interestingly enough, it's perfectly legal to do so. As long as you can show that you legally purchased said fully automatic weapons BEFORE the law was passed/changed making their ownership illegal.
Sigh. Just another AC grasping at straws and producing completely irrelevant and terrible analogies.
[pats said AC on the head] There there. Personally, I'd go with "not say nothing at all" than come off as a complete idiot or desperate for a reply (even if it's a crappy one).
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You would be breaking the law by owning the result of your modifications.
Your argument fails also in that the result of breaking DRM is not illegal. It is the breaking of DRM that is.
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It's perfectly legal for me to make copies of music and movies, for instance, for backup purposes or to format-shift (buying a dvd and watching it on a smartphone, for example). It's perfectly legal to reverse-engineer software. It's perfectly legal refill inkjet printer cartridges.
It's just not legal to break copy protection to do so.
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Also, if what you are doing is already illegal, whether circumventing drm is illegal or not is irrelevent so the only added benefit we get from the DRM laws is to outlaw the legimitate things.
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And this why greedy corporations are putting their "code" in everything they sell.
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The Big Lie
Yes I do. The idea that I don't is just wishful thinking of corporations that happens to be parroted by their shills.
You repeat a lie often in order to convince people it's the new reality. This idea is called "The Big Lie".
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Re: The Big Lie
In my opinion, if I have physical possession of an item through legal means I OWN IT. Period.
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Even though all of their games use the Free to Play model, there is no wonder why players who enjoy the games themselves would try to host their own servers.
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The statutory minimums are there for a reason - it gives the courts an easy, simple way to determine what is the minimum for the infraction. The judge doesn't have to do anything except apply it.
Clearly, the people / company involved circumvented, and caused harm. You could spend millions trying to prove EXACTLY how much harm, and it would be useless anyway. As someone pushing CwF+RtB as a concept, you should be painfully aware that the inability to deal with your customers directly (because a third party has circumvented your systems) is extremely costly in many ways.
Another head shaker of an article!
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This argument might make sense if the statutory minimums were optional guidelines.
"As someone pushing CwF+RtB as a concept, you should be painfully aware that the inability to deal with your customers directly (because a third party has circumvented your systems) is extremely costly in many ways."
Hahahahaha. If the provider and developer of the official game and client cannot offer a better service than a 3rd-party alternative, the problem is not with the 3rd-party. Also, there is no "inability to deal with your customers." As always, you're delusional.
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But in the case of copyright infringement . . . .
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Well, we need to fill our for profit prisons some how.
If you build it, they will be incarcerated.
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Austin Powers was a real life documentary for you, wasn't it?
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I totally agree. Statutory damages are about more than just actual damages, and there's a lot of good reasons to use them. But I think the amount of statutory damages needs to be reasonably related to the amount of actual damages. When you get a high multiplier like the one here, even the minimum of the range gets ridiculous. A kid with one iPod full of tunes could be looking at tens of millions of dollars in liability. It's clearly problematic. I think a simple fix would be to make the statutory range suggestive, with a judge having latitude to a variance either up or down depending on the circumstances.
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Ford can't stop others from manufacturing parts for its cars and so nobody should be able to stop others from offering a competing service.
That simple fact is what you people don't get it.
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So in essence, the Nexon people are trying to get free money. You want to know where they get their money? From offering products on their servers.
Good job at showing how there really is no risk in suing someone who may have just wanted to play the game differently from the regular way.
Another head shaker of an AC!
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Free to play doesn't mean that no money has to be made: look at World of Tanks for example, a highly successful FtP game. Encourage such games. Don't put them out of business by setting up your own servers.
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*sigh*
How is that Nexon's problem? If they're monetizing content on their servers and making money, then trying to stop people from piracy is impossible.
People like games like Maple Story. They modify it to fit their own purposes. This happens in every game out there. There are official servers as well as unofficial. I can point you to 50 different servers of WoW. I can point to hundreds of alternate servers for the most popular MMOs out there.
This idea that people need to be 100% original is not understanding how people will create with whatever's available to them. If they like a game and create new servers for you, there's a market opportunity there. Someone might not be happy with the exp system. Maybe they have custom mods which show better stats.
Piracy in essence is competition. And Nexon needs to understand that instead of being rewarded for being stagnant.
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Is like Ford saying you can't build a cab company with its cars without paying them for the privilege of using their cars to build a business.
It shouldn't matter who made the software, it should matter only that one service is trying to stop another here without any grounds on reality to do so.
These is exactly why monopolies are so bad.
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You do ralise how immoral that stance is, don't you?
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The third parties aren't preventing you from dealing with your customers. You've already lost them, they are no longer your customers -- that's why they went to the trouble of using a different server. If you were serving them properly, they would remain your customers regardless of the existence of third party servers.
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The unpleasant truth
How so? Lets just put aside the whole is it right / wrong argument to start with.
As it stands right now, the financial impact of a small infringement is of such magnitude that it is for all intensive purposes, no different from a massive infringement.
So, if you are intending to infringe, infringe BIG.
Secondly, when any judgement, uncontested or not, involves that large a sum of money, there are realy only 2 outcomes. The first is all the assests are overseas and can not be touched by the US court system. The second is it goes to appeal and gets tied up in the courts for several years.
So, if you are intending to infringe, infringe BIG.
But it is a detterent I here you say. Not realy, if it was we wouldnt keep hearing about these kind of cases.
All these type of laws do is encourage the very thing they are trying to prevent, provide great fodder for blogs sites, and give plaintiffs flase hope of riches that will never appear.
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Re: The unpleasant truth
Mega Kim is learning that just doesn't work out.
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Strawman reply. I see no default judgement or DRM violation here.
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No, only a jury's finding guilt beyond a reasonable doubt is going to provide a definitive answer. The fact that you assumes he is guilty speaks volumes.
And remember that MU may have left a paper trail and done some stupid things which others are likely not to repeat.
As a non-American, I find the entire notion of punitive damages violative of due process. Punishment should only be dealt out in a criminal trial and not be meeted out under a plaintiff friendly preponderance of evidence civil standard.
For that reason the German constitutional court has held that enforcing American punitive damages awards violates the Basic Law's guarantee of criminal defendant's rights because the evidence does not meet criminal proof.
Punitive damages are unjust.
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I assume nothing, except that up until recently he was taking in millions a year, and now he is not - after having spent a month or so in prison just to get bail.
I would say it's not working out very well for him. He's about to spend then next few years of his life arguing his case in courts in more than one country.
Win or lose, he loses.
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"This is not a fight over who is guilty and who is not"
http://www.techdirt.com/articles/20120413/02405818481/us-govt-says-megaupload-shouldnt-be-al lowed-to-use-top-law-firm-it-hired-its-defense.shtml#c600
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damages needs to be reasonably related to the amount of actual damages. When you get a high multiplier like the one here, even the minimum of the range
gets ridiculous. A kid with one iPod full of tunes could be looking at tens of millions of dollars in liability. It's clearly problematic. I think a simple
fix would be to make the statutory range suggestive, with a judge having latitude to a variance either up or down depending on the circumstances."
No a fix would to be abolishing copyright for non-commercial use and scale back if not completely destroy all anticircumvention provisions of the DMCA
Non-commercial copying should never give rise to any damages.
The only good part of the DMCA is the safe harbor.
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the problem online is that the line between non-commercial and commercial copying is difficult to see.
If you post something on Youtube, is it commercial or non-commercial? Your personal use and intention may be non-commercial, but YouTube will slam ads all around it and over it, making it commercial. You cannot put a video on youtube without it being a commercial use.
You post up something on a video locker, and someone else embeds it into a commercial music blog. Is the use commercial or non-commercial?
"A kid with one iPod full of tunes could be looking at tens of millions of dollars in liability. It's clearly problematic."
Yes, it is problematic. If he didn't pirate the music, he would have no liability. It's so easy to fix things, stop trying to turn the copyright holders into the criminals, they are the victims here.
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It's difficult to prove a lot of things in a court and that's not an excuse to just hand-wave around it and increase the punishments for things you can't prove.
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That's true, but you do understand why that's not an adequate answer, right? If it were, then we should just set the minimum fine for any misdemeanor at $1,000,000 and the minimum prison term for any felony at 20 years and be rid of all of these confusing differences in sentencing and the work required to figure out how to apply them.
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I personally object to the idea of getting a $300 ticket for going 20 MPH over the limit on an interstate, while a guy who punches another guy in the face in a bar might get a $50 fine. For me, it seems stupid that actual bodily harm (and a lack of respect for others) comes in with a lower price than speeding. Yet, I can understand the deterrent factor in the high fines.
A good example (and Marcus will appreciate this) is the great dictatorship of Ontario. There, they passed a speeding law that allows the police to immediately seize the car of people doing more than a certain amount over the limit as "racing" on a public road. The effects have been quite pronounced, as the risk for speeding is now high enough that even the stupidest of drivers generally only do 30/Kmh over the limit, because it's only monetary. At 40 or 50 over, (50 is about 30 MPH) over, your car is immediately seized.
While your examples are exaggerated, the truth is somewhere in the middle. $200 for an infringement isn't really a bad thing, no worse than $35 for parking ticket. You can still run up a big pile of money if you do it the wrong way.
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Actually, I don't think this is true with regards to statutory minimums, although that's certainly the theory behind some kinds of (but not all) penalties. The purpose of statutory minimums is to limit the ability of a judge to actually exercise judgement in the cases they're presiding over. It's a way to weaken one of the checks & balances we have.
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So, perhaps instead of trying to sue inadvertent infringers out of existence, you should be working on clearing this up first? You're never going to eradicate piracy if it's so difficult to tell if you're committing infringement in the first place, are you? How do you stop people committing a crime if they can't tell whether they're committing it to begin with?
"If he didn't pirate the music, he would have no liability."
You'll note that he didn't say "iPod full of pirated tunes". Perhaps he didn't pirate them. Despite your objections and assumptions, it's perfectly possible to have a full iPod without breaking any law.
"stop trying to turn the copyright holders into the criminals, they are the victims here."
Citation needed on actual quantifiable damages. I can see actual damage being done to inadvertent and innocent parties. I'm yet to see any damage done to copyright holders that's not purely based on assumptions and cherry-picked data (e.g. discounting any of the hundreds of other factors than piracy when looking at the downswing in recorded music sales).
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So even if he is innocent, or his "crime" only amounts to little damage, he loses - not on actual evidence but on atrition
I thought you mention of Kim come had some relation to actual evidence of a person being responsible for clear cut infringement, but you are now moving the goalposts to anyone accused apart from found guilty of infringement.
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A couple of replies
First, everyone seems to be thinking that Kim Dotcom will be tried in the USA, what you seem to miss is that the NZ court has to OK the extradition, no OK, no extradition...and the criteria for extradition is very high.
Second, can we please make it legal to shoot anyone who uses the phrase "Intellectual Property" seriously! There are patents, copyrights and trade secrets, and none of them are actual properties. If you want copyright you don't get patents or trade secrets, choose one.
One last thought, it should be mandatory that if you sue over a patent any court proceeding must be stayed pending PTO review, and the PTO review is automatic. For each patent found invalid and rejected the plaintiff must pay the costs of the review.
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IP is a fiction and circumvention is a moral duty.
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TEAR DOWN THE WALL
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Very cool! Now sue all record and movie companies
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Re: Very cool! Now sue all record and movie companies
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Is this what we've been waiting for?
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Guns in Europe
Everyone knows that - I mean, look at violent crime statistics in major US cities like Dallas, New Orleans, Chicago and compare then to London, Berlin, or Paris.
I mean - obviously, the European cities will have far higher per-capita deaths due to violence.
Unless they don't.
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Re: Guns in Europe
And do you mean the same London that's in the UK, which now has a higher overall crime rate than the United States, and which in fact rose by 40% in the two years following the infamously strict 1997 Firearms Act?
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Regarding DMCA
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Idiocy.
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Re: Idiocy.
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