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Here is an interesting article written by an attorney that has represented the movie industry (I know, I know), and it raises some interesting issues, as well as provide some more background knowledge in regards to the two recent high profile copyright cases (case 1 and case 2) in which the defendants have been penalised with huge damages.
There are two types of damages being rewarded here, one is actual, the other is statutory. Actual is where the content owners have to prove the actual loss, for example, the number of copies of songs or movies downloaded and shared times the loss of revenue for each copy. The problem is that not every copy equals lost revenue, a point that the judge in the second case agrees with. And sometimes, it is also difficult to judge just how many copies have been distributed as was the situation in case 1 where the original hard-drive that may have contained the copyrighted materials was destroyed prior to legal action.
This is where statutory damages come in. Under US copyright law, statutory damages can range from $300 per offence to $30,000 for regular infringement, and up to $150,000 for willful infringement. It was under statutory damages that the content owners in both cases received the high amount of damages. It is really up to the jury to decide how much should be rewarded, and the team with the better lawyers will be able to convince the jury as to how much damages, if any, should be rewarded. It isn't punitive damages, but the effect is to achieve the same, to act as a deterrent for future infringements.
The problem now for the music and movie industry, and possibly why they have shied away from pursuing any more individuals in court (instead, preferring to go after ISPs, torrent websites), is that huge damages rewarded against poor individuals (case 1 was a single mother, case 2 was a student) to multi-billion dollar industries don't make good headlines, and the sympathy goes towards the defendants, despite them being proven guilty by a jury of their peers. This kind of negative publicity might work against them when cases such as these are challenged in the US Supreme Court, which has in the past ruled against the reward of excessive punitive damages. The US Eighth Amendment even has a prohibition on excessive fines, and the statutory damages may be considered as such. Whatever the situation, it leaves a bad taste in people's mouth, and I wouldn't be surprised if there are more people that have pirated music and movies at least once compared to people who have not. That's a majority, and a majority that does not like the statutory damages being rewarded.
Back to that interesting article I referred to at the beginning. The attorney's arguments are pretty much the same, except he is saying having limits on statutory damages is a bad thing for the content owners (of course it is), as it makes deterrence much harder. This assumes people aren't aware of the possible damages that could result in a case like this, that they have not seen the various copyright notices before and after DVDs, the TV and movie theater commercials, and the other high profile cases that have already appeared in court. Of course people know. They also know that chances are, the probably won't get caught, since out of the millions that pirate every day, only 2 of them have been sent to court. The content owners can sue all they want and they can get millions more in damages, but it won't stop the "torrent" of abuse, until they get to the source of the problem - that many people want to take part in what society considers to be mainstream entertainment, but just can't afford to do so, or in many cases, unable to do so legally (such as here in Australia, where US TV shows are not shown, or shown months and years after their original US showing date). So unless people want to be social outcasts as they shrug their shoulders and say to their friends that they haven't seen the latest episode of Lost, or don't want to take out a second mortgage just so they can buy the season 1 to 6 DVD set of Curb Your Enthusiasm, they have to resort to piracy. And this is something the content owners can solve, by lowering prices, by getting rid of the barriers to allow people access to content as they become available (not when TV stations choose to show it). Do that, and the piracy problem, as well as the PR problem of asking for millions from single mothers and students, will go away.
The original article:
There are two types of damages being rewarded here, one is actual, the other is statutory. Actual is where the content owners have to prove the actual loss, for example, the number of copies of songs or movies downloaded and shared times the loss of revenue for each copy. The problem is that not every copy equals lost revenue, a point that the judge in the second case agrees with. And sometimes, it is also difficult to judge just how many copies have been distributed as was the situation in case 1 where the original hard-drive that may have contained the copyrighted materials was destroyed prior to legal action.
This is where statutory damages come in. Under US copyright law, statutory damages can range from $300 per offence to $30,000 for regular infringement, and up to $150,000 for willful infringement. It was under statutory damages that the content owners in both cases received the high amount of damages. It is really up to the jury to decide how much should be rewarded, and the team with the better lawyers will be able to convince the jury as to how much damages, if any, should be rewarded. It isn't punitive damages, but the effect is to achieve the same, to act as a deterrent for future infringements.
The problem now for the music and movie industry, and possibly why they have shied away from pursuing any more individuals in court (instead, preferring to go after ISPs, torrent websites), is that huge damages rewarded against poor individuals (case 1 was a single mother, case 2 was a student) to multi-billion dollar industries don't make good headlines, and the sympathy goes towards the defendants, despite them being proven guilty by a jury of their peers. This kind of negative publicity might work against them when cases such as these are challenged in the US Supreme Court, which has in the past ruled against the reward of excessive punitive damages. The US Eighth Amendment even has a prohibition on excessive fines, and the statutory damages may be considered as such. Whatever the situation, it leaves a bad taste in people's mouth, and I wouldn't be surprised if there are more people that have pirated music and movies at least once compared to people who have not. That's a majority, and a majority that does not like the statutory damages being rewarded.
Back to that interesting article I referred to at the beginning. The attorney's arguments are pretty much the same, except he is saying having limits on statutory damages is a bad thing for the content owners (of course it is), as it makes deterrence much harder. This assumes people aren't aware of the possible damages that could result in a case like this, that they have not seen the various copyright notices before and after DVDs, the TV and movie theater commercials, and the other high profile cases that have already appeared in court. Of course people know. They also know that chances are, the probably won't get caught, since out of the millions that pirate every day, only 2 of them have been sent to court. The content owners can sue all they want and they can get millions more in damages, but it won't stop the "torrent" of abuse, until they get to the source of the problem - that many people want to take part in what society considers to be mainstream entertainment, but just can't afford to do so, or in many cases, unable to do so legally (such as here in Australia, where US TV shows are not shown, or shown months and years after their original US showing date). So unless people want to be social outcasts as they shrug their shoulders and say to their friends that they haven't seen the latest episode of Lost, or don't want to take out a second mortgage just so they can buy the season 1 to 6 DVD set of Curb Your Enthusiasm, they have to resort to piracy. And this is something the content owners can solve, by lowering prices, by getting rid of the barriers to allow people access to content as they become available (not when TV stations choose to show it). Do that, and the piracy problem, as well as the PR problem of asking for millions from single mothers and students, will go away.
The original article:
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