Friday, April 10, 2009

Working paper by Prof. Samuelson on Copyright Act statutory damages argues Gore due process test applicable to statutory damages

Thanks to Prof. Michael Scott, of Southwestern Law School, for bringing this paper to our attention, through his always informative Twitter persona, CopyrightLaw:

A working paper authored by noted copyright law scholar Prof. Pamela Samuelson of the University of California Law School, and Research Fellow Tara Wheatland, discusses, in depth, various issues regarding statutory damages under the Copyright Act.

Among other things, the paper concludes that the State Farm/Gore due process test is applicable to statutory damage awards under the Copyright Act, a position which is consistent with the position taken in the amicus curiae brief filed by the Free Software Foundation in SONY BMG Music Entertainment v. Tenenbaum, and inconsistent with the positions taken by the Department of Justice in Tenenbaum and in SONY BMG Music Entertainment v. Cloud

The complete working paper is available for download online, in *pdf format, at the excellent Social Science Research Network, at the following URL:

"Statutory Damages in Copyright Law: A Remedy in Need of Reform, by Pamela Samuelson and Tara Wheatland"

Commentary & discussion:

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Keywords: lawyer 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 portable music player


raybeckerman said...

Note that Prof. Samuelson, unlike the DOJ, did discuss UMG v. Lindor, Parker v. Time Warner, Atlantic v. Brennan, and Napster, as well as the 2 law review articles the DOJ likewise ignored.

Law student said...

I'm a law student currently taking a class on Remedies, and found Prof. Samuelson's argument to be both interesting and persuasive. I'm surprised that discussions about the statutory remedy are just now being litigated, given that so many judges have ducked on other arguments because they claim to not understand the technology. I'd think that this argument would be bread and butter to them.

This is a pretty logical level even for the non-legal eagles. If someone is wronged, they should be put into their rightful position. You don't want to short them or give them a windfall. The government shouldn't be able to help out a big business by passing a law that arbitrarily sets the value of something.

raybeckerman said...

Dear Law Student

1. Rights don't exist in a vacuum. They have to be fought for.

2. Defendants have been relatively undefended.

3. When the RIAA runs up against serious opposition it almost always folds up its tent.

4. The constitutionality of a statutory damages award may have to await a trial, and plaintiffs winning an award of statutory damages. How many times has that happened? Now that the Thomas verdict was thrown out the window...never.

There's nothing wrong with the concept of statutory damages. The RIAA's theory as to how it should be applied to a single download of an MP3 is what's absurd.

raybeckerman said...

Comment rejected because:

1. It ignored the constitutionality issue.

2. It appeared to be written by an RIAA lawyer or other shill.

Randy said...


I realize that this is *your* blog, but you seem to be rejecting more and more comments. I'm betting that your readers can pick out the shills and knock them down ourselves.


raybeckerman said...

Randy, I know many of my readers are smart enough to pick out the shills... but I don't like publishing dishonest garbage. I spend enough time reading stuff like that when I have to go through the RIAA's lying court papers.

Some moron RIAA lawyer put in a post reciting the statute as an argument against its own unconstitutionality. That kind of stupidity doesn't sit well with me.

My blog is for information, not deception.

Anonymous said...

Randy, most of us appreciate Ray's rules for comments, which are designed to keep totally pointless comments off his pages. This means we don't hafta read them. This means we don't have incentive to write them. This is good.

Regarding this blog, do you have the data of percent-of-comments-rejected over time? I speculate that you don't.