Statutory Damages and the Tenenbaum Litigation: Doug Lichtman out at UCLA sends this along:
Joel Tenenbaum looks a lot like every other defendant who has been accused by the music industry of illegally sharing copyrighted work online, but with one key difference: his defense attorney is Harvard Law School Professor Charlie Nesson, and Nesson is out to turn his case into a public referendum not only on the music industry’s efforts to enforce copyright through these direct-infringer suits, but also on the copyright rules that make the industry litigation possible. In this program, we engage Nesson’s key arguments, focusing especially on Nesson’s claim that copyright law’s statutory damages regime runs afoul of constitutional protections against excessive and/or arbitrary civil damages awards.
He’s got a cast of stars knocking heads on this one, does Doug. Actually Nesson does, too. And as for Nesson’s “public referendum,” unlike some people I’m not sure what difference a “referendum” is going to make as long as Congress gives the copyright lobby 95% of everything it asks for.
Yeah. And all they do before they submit their wish list, after all, is mark it up anyway so they can humbly acknowledge things like, “Hey, look, we wanted a presumptive penalty of preliminary defenestration for right-clicking without a license — we didn’t get that, now, did we?”
But then I’ve never been much of a populist. As for the elitist who writes this blog and counsels these clients, I’ll agree that the “soft IP statutory damages and fees regime,” if you will (i.e., statutory damages under the Copyright Act and the Lanham Act) is a mess. It virtually never penalizes those who bring meritless claims, its incentives are largely irrelevant in benefiting the putative beneficiaries of (actual creators and innovators) and it skews outcomes preposterously because virtually no defendant can afford the risk of losing, regardless of the merits of his defenses.
Now, that’s not counting. statutory damages for trademark counterfeiting, which I think work great. Unless you think collecting damages is important.
See, with all those opinions in the head of just one blogger’s rapidly balding noodle, who needs referenda? Anyway, click the link for more of them, and maybe even better-baked ones, too. I will! I at least want to see what “every . . . defendant who has been accused by the music industry of illegally sharing copyrighted work online” looks like. Don’t I?