One thing that has not changed in Washington - or has maybe changed but for the worse - is the Administration's support for excess in copyright policy and enforcement.
The US DOJ today filed a brief in support of the constitutionality of a $1,920,000 jury verdict for downloading and sharing 24 songs in the Jammie Thomas case. That's $80,000 per song - or more than 80,000 times actual damages. HT to Ben Sheffner, who provides the relevant links here.
All because actual damages can be "hard to quantify" and there's a need to deter.
Well, the same can be said about damage caused by drunk drivers, negligent surgeons, bad and/or dishonest lawyers, defamatory publications, etc., etc., etc.
It's time for this myth about "hard to quantify" and "need to deter" to be shattered, or a least cut down to size. Actual damages in copyright cases are no harder to quantify and perhaps easier than in countless other circumstances where there is no statutory minimum damage provision. One can begin with patents and trade-marks. This was a windfall to the US entertainment industry in 1976 and was exacerbated in 1998. Only Canada, amongst major countries, has been misguided enough to have adopted a similar regime.
In fact, the real reason why content owners fought so hard for this is because actual damages in copyright cases are often negligible. Nobody can seriously suggest that every "unauthorized" download or every counterfeit DVD correlates to one - let alone more - lost sales.
A $10 fake Rolex doesn't result the the lost sale of the $5,000 real thing. Yet, trade-mark owners have dealt with their enforement issues without the need for such a contrived and catastrophic remedy as statutory minimum damages that can take away a person's house and their abiltiy to to get an education, feed their family, etc.
We can only hope that the US Supreme Court cuts this draconian and dreadful provision down to size. And that Canada gets rid of its knock-off version of one of the worst aspects of American law at the earliest possible opportunity.
Friday, August 14, 2009
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