Wednesday, March 26, 2008

RIAA vice president and Ray Beckerman to share dais on Friday, March 28th, at Fordham University Law School, to discuss statutory damages

On Friday, March 28, 2008, at the 16th Annual "Intellectual Property Law & Policy" conference, a 2-day conference hosted by Fordham University School of Law in New York City, Kenneth Doroshow, the RIAA's Senior Vice President of Litigation and Legal Affairs, will speak on the subject of copyright statutory damages. Ray Beckerman, the author of this blog, will be a member of the panel for that discussion.

Other members of that panel will be Prof. Peter Black, Queensland University of Technology, Brisbane, Prof. Pamela Samuelson, University of California, Berkeley, and Ted Shapiro, Deputy Managing Director, VP & General Counsel – Europe, MPA, European Office, Brussels.

In addition, Beckerman will be participating in panels discussing the "making available" concept and the role privacy rights should play in proceedings to obtain disclosure of subscriber identities from ISP's for p2p cases.

CLE credit is available for the conference.

A full description of the March 28th panels in which Beckerman will be participating is as follows:

5:05 – 6:30
The Role, Effectiveness and Issues in Infringement Actions against Individual P2P Downloaders; Recent Legislative Initiatives Aimed at Downloaders

Moderator:
Prof. Hugh C. Hansen, Fordham University School of Law

1. What is the effect in the U.S. of the “making available” right? Comparative approaches in Asia, interpreting the making available right, and also the intersection with secondary liability.

Speaker:
Michael Scheslinger, Greenberg Traurig LLP, Wash. D.C.

Panelists:
Ray Beckerman, Vandenberg & Feliu LLP
Prof. Brian Fitzgerald, Queensland University of Technology Law School, Brisbane
Prof. Jane Ginsburg, Columbia Law School
Prof. Mary Wong, Franklin Pierce Law Center

2. Should new limits be placed upon statutory damages? Did the supporters of P2P software and the individual defendants miscalculate the reaction of juries? A review of case law, e. g., Capitol Records v. Thomas, (D. Minn. 2007).

Speaker:
Kenneth Doroshow, Senior Vice President of Litigation and Legal Affairs, Recording Industry of America, Wash. D.C.


Panelists:
Ray Beckerman, Vandenberg & Feliu LLP
Prof. Peter Black, Queensland University of Technology, Brisbane
Prof. Pamela Samuelson, University of California, Berkeley
Ted Shapiro, Deputy Managing Director, VP & General Counsel – Europe, MPA, European Office, Brussels


3. What role should privacy play in learning the identities of downloaders? A look at recent case law in the U.S. and EU (e.g. Promusicae in ECJ)

Speaker:
Dr. Volker Kitz, Max Planck Institute for Intellectual Property, Munich / HOECKER attorneys, Cologne
Private Peers – What Role Should Privacy Law Play in Learning the Identities of P2P Users? The European Case

The “Data Retention Directive” obliges access providers throughout Europe to store dynamic IP addresses. The ECJ, however, decided that privacy law might prevent right holders from obtaining this data. Where is the right balance between IP enforcement and privacy?

Panelists:
Ray Beckerman, Vandenberg & Feliu LLP
Fabienne Brison, Howrey LLP, Free University of Brussels
Eddan Katz, International Affairs Director, Electronic Frontier Foundation, San Francisco
Barbara Norcross-Amilhat, Principal Administrator, Copyright and Knowledge-
Based Economy, DG Internal Market and Services, European Commission, Brussels
Richard Pfohl, General Counsel, Canadian Recording Industry Ass’n, Toronto
Ted Shapiro, Deputy Managing Director, VP & General Counsel – Europe, MPA, European Office, Brussels
A full description of the entire 2-day program is available online in both HTML format and PDF format.

Commentary & discussion:

p2pnet.net




Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property






12 comments:

Anonymous said...

Ray,

I'm surprised that he'd dare appear at any presentation that included you. I'd have expected him to demand your ouster as a condition of his own attendance and speaking.

XK-E

Anonymous said...

There's a typo in the URL link to the conference--should have an 'e' on the end of 'conference'

Alter_Fritz said...

Hey Ray, please take this tiny "e" for your link ;-)

e

http://www.fordhamipconference.com/

Ray Beckerman said...

Thanks for bringing the bad link to my attention. I've corrected it.

katwillie said...

any way to get a recording of this program?

Shane said...

I know we're to practice appropriate decorum, but my first thought is **OMFG!!!** This is just too good :-) My second is I **really** hope there will be a video or audio recording posted of this.

Will there be SWAG? Hopefully, attendance of this event will not come with a free RIAA ex parte subpoena.

The statutory damage issue is a vital one. It is the one that gives the RIAA a financially ruinous multi-million dollar hammer to coerce even innocent defendents into non-negotiable "settlements" that subject the defendants to **additional** liability by forcing them to admit to copyright infringement of works which RIAA members are just one of many copyright owners. A settlement without indemnification means that defendants can be sued again for the same infringement by other parties with copyright interests in the works and be subject to summary judgement.

But, the current enormous statutory hammer isn't big enough for the RIAA's liking. No, they want more power to pummel their perceived enemies into submission. When the RIAA recently tried to have the statutory limits increased in the "Pro IP" bill they were asked to provide any examples where the current statutory limits were insufficient. They could not, but they didn't let the facts get in the way of claiming they needed the limit increased, since being able to sue someone for $1,500,000 for downloading one CD's worth of songs isn't considered enough (iTunes retail value $9.99) leverage for some reason.

We can see the power of excessive statutory damages in all the RIAA cases, including the Tanya Anderson case, where the RIAA ruthlessly and recklessly pursued Ms. Anderson on false claims of infringement. Because of the enormous power of the RIAA's virtually unlimited litigation fund and their huge statutory award claims, the innocent Ms. Anderson was told by a law firm that she should let the RIAA take a judgement against her and declare bankruptcy. The statutory awards are so great that the RIAA's steamroller litigation factory is virtually unstoppable by defendants without millions of dollars in resources. The statutory awards are so great that innocents are crushed under the mere accusation of infrigement. Guilt or innocence is irrelevant to this self-appointed specter, to which only victory matters.

And all this turmoil and reckless persecution by the RIAA is enabled and fueled by statutory damages that were meant to punish massive commercial infringers of whole works--say Penguin Books pirated Harry Potter book 7 and printed and distributed their own version to bookstores. Instead, we see the RIAA using those commercial statutory damages as a weapon against individuals for minute allegations of infringement for small works only a few minutes long and that sell for 99 cents. So, of course, the RIAA is going to defend these ridiculous and unconscionable damage awards. Their campaign of indiscriminate harassment and intimidation is completely dependent on the statutory damages completely disproportionate nature. Without disproportionate awards the RIAA can't fund their disproportionate lawsuit factory--which seems to be all the RIAA does these days.

Shane said...

**Not to dupe post, but here is the more decorous version with one letter removed**

I know we're to practice appropriate decorum, but my first thought is **OMG!!!** This is just too good :-) My second is I **really** hope there will be a video or audio recording posted of this.

Will there be SWAG? Hopefully, attendance of this event will not come with a free RIAA ex parte subpoena.

The statutory damage issue is a vital one. It is the one that gives the RIAA a financially ruinous multi-million dollar hammer to coerce even innocent defendents into non-negotiable "settlements" that subject the defendants to **additional** liability by forcing them to admit to copyright infringement of works which RIAA members are just one of many copyright owners. A settlement without indemnification means that defendants can be sued again for the same infringement by other parties with copyright interests in the works and be subject to summary judgement.

But, the current enormous statutory hammer isn't big enough for the RIAA's liking. No, they want more power to pummel their perceived enemies into submission. When the RIAA recently tried to have the statutory limits increased in the "Pro IP" bill they were asked to provide any examples where the current statutory limits were insufficient. They could not, but they didn't let the facts get in the way of claiming they needed the limit increased, since being able to sue someone for $1,500,000 for downloading one CD's worth of songs isn't considered enough (iTunes retail value $9.99) leverage for some reason.

We can see the power of excessive statutory damages in all the RIAA cases, including the Tanya Anderson case, where the RIAA ruthlessly and recklessly pursued Ms. Anderson on false claims of infringement. Because of the enormous power of the RIAA's virtually unlimited litigation fund and their huge statutory award claims, the innocent Ms. Anderson was told by a law firm that she should let the RIAA take a judgement against her and declare bankruptcy. The statutory awards are so great that the RIAA's steamroller litigation factory is virtually unstoppable by defendants without millions of dollars in resources. The statutory awards are so great that innocents are crushed under the mere accusation of infrigement. Guilt or innocence is irrelevant to this self-appointed specter, to which only victory matters.

And all this turmoil and reckless persecution by the RIAA is enabled and fueled by statutory damages that were meant to punish massive commercial infringers of whole works--say Penguin Books pirated Harry Potter book 7 and printed and distributed their own version to bookstores. Instead, we see the RIAA using those commercial statutory damages as a weapon against individuals for minute allegations of infringement for small works only a few minutes long and that sell for 99 cents. So, of course, the RIAA is going to defend these ridiculous and unconscionable damage awards. Their campaign of indiscriminate harassment and intimidation is completely dependent on the statutory damages completely disproportionate nature. Without disproportionate awards the RIAA can't fund their disproportionate lawsuit factory--which seems to be all the RIAA does these days.

Anonymous said...

As asked above, any chance of a recording. Any audio/video (or even a transcript) would be great.

Shane said...

...and one further problem with the "Statutory Damages" in RIAA copyright cases. Statutory damages are supposed to compensate a plaintiff for loss. The Statutory copyright were set high to account for the kinds of loss in commercial piracy cases. However, the statutory damages are so high as to be completely divorced from any real loss, if any, the RIAA members are suffering from the individuals it sues. Thus the damages are punitive in nature--and punitive awards are, IIRC, not allowed in copyright cases.

The US is essentially the only country that even allows punitive damages in civil cases. Punitive damages are usually reserved for governments to met out through a criminal justice system that has due process protections and disinterested prosecutors. Because of the enormous resources it wields and because of the disproportionate and enormous statutory awards it demands, the RIAA is acting as a virtual rogue criminal prosecutor--one not beholden to any presumption of innocence or due process.

Because the extremely high statutory damages in copyright are functionally very much like punitive damages. a new NYT article on US punitive damages and foreign courts is, perhaps, germane.

Anonymous said...

Ray, you may want to be on the lookout for 'crowd shaping' on the RIAA's part. There was a bit of a fiasco during Comcast's FCC hearing at Harvard into their internet policy. This is the kind of behavior we expect from our 'respectable' opponents, and this announcement reminded me of the article. It's pretty childish, IMHO, but keep your eyes peeled anyways.

ZH

DTS said...

I'm not sure if it's relevant, but since the issue of "making available" is being brought up I thought I'd share something with regards to the subject I figured out some weeks ago. We all know the focus around "making available" is that the RIAA is trying to outlaw it by justifying sales lost, right? Rather, sales that could have been lost?

Just imagine what'd happen if farmers tried to do something similar -- they could claim that every egg they sell prevents them from hatching the egg into chickens, which lay more eggs for chickens and so on and so for. They could spin a yarn saying that the immediate demand for eggs prevents them from going for a more lucrative business plan by hatching and raising chickens, so it's the customers fault and therefore, they should have to foot the price for the potentially infinite sales the farmers would have lost.

But they can't do that. Because it's all potential with no proof that it happened, or could happen. Likewise, the RIAA should be banned from playing this "potential loss" card, since the potential itself has such an iffy existence.

Justin Olbrantz (Quantam) said...

Since it seems you're back, Ray, who owns the rights to the presentation you and the others gave? Is there any chance you could post transcripts or recordings online?