Derek Bambauer is critical of Judge Nancy Gertner's decision in Sony BMG v Tenenbaum.
Info/Law » Tenenbaum and Statutory Damages
My admiring post on Judge Gertner's decision in Tenenbaum here.
The Electronic Frontier Foundation's Corynne McSherry writes on the Deeplinks blog
But the most interesting aspect of the ruling may be the court's conclusion that Congress never intended copyright's extraordinary statutory damages provisions — which permit an award of up to $150,000 per work if the defendant has willfully infringed — to apply to noncommercial users of peer-to-peer networks, even if they are found liable for willful infringement. After a lengthy review of the legislative history, Judge Gertner found that there was "substantial evidence indicating that Congress did not contemplate that the Copyright Act’s broad statutory damages provision would be applied to college students like Tenenbaum who file-shared without any pecuniary gain."
Full Deeplinks post here
Expect the opposite from Ben Sheffner, who is thinking about it here.
Purchase Copyright Litigation Handbook from West here
Sunday, July 11, 2010
Copyright Law: Tenenbaum and Statutory Damages - Comments from the Blogosphere
Partner in law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2019-2020). The New York Law Journal called it "an indispensable guide". Board of Directors of the Fordham Law Alumni Association, former General Counsel & Director Federal Bar Association, FBA Chair of the Circuit VPs, ViP for Second Circuit. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014).
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2 comments:
Ray, I agree that Judge Gertner’s opinion is clear and well written, but I believe the court got it wrong.
Although the court relied heavily on the Gore guidelines they don’t apply for several reasons. Here are three:
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.
B. 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.
C. 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, identical to the applicable civil penalty.
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.” In other words, file sharers are now in a judicially created safe harbor.
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, post hoc comments made by Senators Hatch and Leahy at hearings held after Congress passed that statue.
In fact, the legislative history demonstrates the opposite—that the aptly-named Digital Theft Deterrence Act sought to address the growing online theft of intellectual property by all infringers.
The text of the 1999 amendment does not distinguish between classes of infringers nor immunize file sharers from statutory damages.
What is especially troubling about Tenenbaum is the negative impact it will have on copyright enforcement if affirmed.
The requirement in Tenenbaum that a plaintiff obtain statutory damages only by first demonstrating actual damage from the infringement means that many copyright cases will never be brought.
That’s because a copyright owner may be unable to prove actual damages for a few 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.
I have posted a critique of the decision at http://www.ipinbrief.com/are/ along with the post-trial briefs of the plaintiffs and the government. I hope your readers find this material useful.
Andy
Ray, I agree that Judge Gertner’s opinion is well written, but I believe the court got it wrong.
Although the court relied heavily on the Gore guidelines they don’t apply for several reasons. Here are two:
A. 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.
B. 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, identical to the applicable civil penalty.
What is especially troubling about Tenenbaum is the negative impact it will have on copyright enforcement if affirmed.
The requirement in Tenenbaum that a plaintiff obtain statutory damages only by first demonstrating actual damage from the infringement means that many copyright cases will never be brought.
That’s because a copyright owner may be unable to prove actual damages for a few 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.
I have posted a critique of the decision at http://www.ipinbrief.com/are/ along with the post-trial briefs of the plaintiffs and the government. I hope your readers find this material useful.
Andy
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