
Getting Copyright Right for the 21st Century - prajjwal
https://www.eff.org/deeplinks/2014/01/getting-copyright-right-21st-century
======
tzs
I took a look at the link they provide on that page to their article on
excessive copyright penalties. They provide some examples there to illustrate
their points.

The first one is a case where they say "A website owner who copied two
copyrighted poems, earning no profit and causing no more than minuscule
economic harm, was ordered to pay $300,000".

What they don't mention is that it was a commercial poetry website, and that
its loss was a default judgement because they did not show up to contest the
case. The way they describe it will give most readers the impression that it
was some little guy being pushed around by Big Poetry.

The third one they describe thusly: "Without guidelines, the penalties awarded
change radically from case to case. One music industry company that sued three
different defendants in separate suits for the same type of infringement won
$10,000 per song in one case, $30,000 in another, and $50,000 in a third".

Note that they identify the plaintiff as a "music industry company", but just
call the people being sued "defendants". Is this because they want to suggest
that the defendants are just ordinary music lovers, being unfairly harassed by
the music industry?

In fact, the defendants were also "music industry companies". They were record
companies who were producing and selling on a large scale commercial
recordings of plaintiff's compositions. The defendants were either underpaying
royalties on compositions that they had licensed, or had failed to obtain
licenses. The specifics of the cases differed as to number of works involved,
and how many copies were sold of each.

Note that statutory damages are per work infringed, not per copy. So, if Alice
and Bob separately infringe your copyrighted song, with Alice selling 1000000
copies and Bob selling 1000 copies, then it would be quite reasonable, all
else being equal, for statutory damages in your case against Alice to be much
much higher per song than statutory damages in your case against Bob--because
in both cases there is only song.

Also note that courts consider deterrence value when deciding the statutory
damages amount. The case against the defendant who got the $50k damages was
actually a class action involving several hundred plaintiffs whose songs were
being used without compensation by the defendant record company [1]. The case
against the defendant who got the $10k was much smaller, with only a handful
of songs involved [2].

Furthermore, there ARE guidelines for statutory damages. The judges in the
above cited cases discuss them and how they arrived at the amounts they did.

[1]
[http://www.leagle.com/decision/19902241909F2d1332_12019.xml/...](http://www.leagle.com/decision/19902241909F2d1332_12019.xml/PEER%20INTERN.%20CORP.%20v.%20PAUSA%20RECORDS,%20INC).

[2]
[http://www.leagle.com/decision/19951447887FSupp560_11346](http://www.leagle.com/decision/19951447887FSupp560_11346)

~~~
AnthonyMouse
Is your objection that an organization adverse to the policies advocated by
the music industry is not painting the music industry in the most favorable
light possible? Why would you expect them to?

Put the rhetoric to one side. What objections do you have to their policy
goals?

> Also note that courts consider deterrence value when deciding the statutory
> damages amount.

This is obviously a problem with the law. Deterrence is traditionally the
domain of criminal law, not civil damage awards, and punitive damages in civil
cases are a mistake in the absence of gross misconduct (and even then it is
wise to require a higher standard of proof). Allowing disproportionately large
damage awards under the civil standard of proof promotes litigiousness on the
part of plaintiffs and increases the power of plaintiffs with illegitimate
claims to coerce defendants into settlements against the risk of a jury not
understanding the nuance of a complicated case. This is exactly the same
problem with allowing prosecutors to make charges with overly harsh penalties,
but worse because the party choosing whether to proceed is given a direct
financial interest in the outcome.

> Note that statutory damages are per work infringed, not per copy. So, if
> Alice and Bob separately infringe your copyrighted song, with Alice selling
> 1000000 copies and Bob selling 1000 copies, then it would be quite
> reasonable, all else being equal, for statutory damages in your case against
> Alice to be much much higher per song than statutory damages in your case
> against Bob--because in both cases there is only song

It seems like you've already identified the problem -- that statutory damages
per song rather than per copy make no sense. Compare this to the typical P2P
file sharing case where a defendant might be sharing a thousand songs but
won't have made more than a low single digit number of copies of the vast
majority if not the entirety of the individual songs. In that case even the
minimum statutory damages would exceed actual damages by two orders of
magnitude.

The problem is fundamentally that making 500,000 copies of one song is
significantly worse (by a factor of 500) than making one copy each of a
thousand songs. Claiming that this is hard to measure and using statutory
damages to make up for it gets you nowhere, because proportionality requires
you estimate the amount of actual damages in any event in order to set an
appropriate level of statutory damages.

~~~
acdha
For years (decades, really) proponents of copyright reform have complained
about inflammatory rhetoric ("don't copy that floppy" and other timeless hits)
hyping grossly inflated “losses”. Stooping to that level is wrong, no matter
who does it, and it also poses a significant risk of backfiring: that “both
sides do it” belief is easy to establish and hard to remove.

It's also completely unnecessary: the current situation is already deplorable
without needing to further embellish it

~~~
AnthonyMouse
Twelve nines of scientifically verifiable accuracy. Rhetorically effective.
Fits within the budget of a small nonprofit organization. Pick two.

> that “both sides do it” belief is easy to establish and hard to remove.

That's the problem with pedantically picking apart everything they post. What
the EFF does _is not_ "stooping to that level" \-- what the industry does is
on a whole different scale. But posting a disproof of infallibility every time
the EFF has anything to say about anything creates the false impression that
what the EFF does could be equivalent to what the industry does.

It's kind of like this: A principal should avoid criticizing a teacher in
front of the students.

~~~
acdha
> Twelve nines of scientifically verifiable accuracy. Rhetorically effective.
> Fits within the budget of a small nonprofit organization. Pick two.

Do you really believe that there's nothing about copyright law which is both
honest and rhetorically effective? We can't talk about the way terms have been
extended absurdly, the way the DMCA has been used with DRM to significantly
prevent fair-use, the massive problems with orphan works which are being lost
because the rights-holders either can't be located or aren't willing to
license reproductions, etc?

That's just internalizing this as a propaganda war rather than an actual
injustice.

> That's the problem with pedantically picking apart everything they post.
> What the EFF does is not "stooping to that level" \-- what the industry does
> is on a whole different scale.

“Why am I getting in trouble for stealing a candy bar when the guy down the
street stole an iPhone?”

