Originally posted on July 30, 2014.
And so it was that, as previously blogged, on June 25, 2014, I participating in the copyright statutory damages segment of the PTO’ / Department of Commerce / Internet Policy Task Force public roundtable discussion “Green Paper Roundtable” in Cambridge, Massachusetts.
It was great fun. I learned a lot. I made some new friends. No, really.
And now you can read the transcript — click on the pic (or, all right, here).
Because this my blog I think I should excerpt some of the things I said. Or, rather, because this is my blog I shall excerpt some of the things I said. To wit (if you like, you may skip the quotation and scroll down for the Fun Fact):
[BEN] GOLANT [Attorney Advisor, USPTO]: Let’s get started with a question on individual file sharers, and it goes like this. Should individuals who are engaged in file sharing on a personal level with no profit-making motive or commercial element be treated differently than other entities for infringement award purposes? Why or why not? And as we did before, put up your tags, and we’ll call on you in order. So let’s see. Ron, and then David, and then George, and then Jodie. Go right ahead.
MR. COLEMAN: My view is that they should be treated differently. They should be treated in concert with the purpose of statutory damages, which is to provide a disincentive, which may very well be out of proportion to the actual damages suffered. We understand that works that are created by people who frequently don’t have resources to enforce their rights in copyright ought to be protected, and that’s the purpose of statutory damages as well as the attorneys’ fee provision of the Copyright Act.
On the other hand, it’s one thing to say that a college student is being treated in a – by having an award levied on him or her that is disproportionate to the damage to the copyright holder, in the case of a file sharing of music, for example, by imposing a tenfold, a hundredfold factor for file sharing. It’s another thing to say that someone should be put in the position of owing a nondischargeable judgment debt of hundreds of thousands of dollars, perhaps even millions of dollars, for personal file sharing.
If indeed it is the case that we’re talking about a person who is not part of some ring, part of some conspiracy to circumvent the Copyright Act, you can get a lot of bang for your buck and send a very strong message without ruining people’s lives for file sharing.
. . .
MR. GOLANT: [W] hat kind of factors should the courts examine in the context of individual file sharers? And in particular, perhaps, should the courts consider [ability] to pay as a consideration …?
MR. COLEMAN: I do have a couple [of] thoughts. I think it answers your question; it also addresses a point that George brought up, incidentally. You say what factors do courts consider, and the thing about statutory damages cases is, you can find cases that say that they should – because there is a punitive aspect of statutory damages, therefore courts should consider or instruct juries to consider the ability to pay, because what’s punitive for me and what’s punitive for some very wealthy person or some very poor person are three different things.
I think it might be worth taking a step back and asking ourselves, why are juries making these decisions? If anyone has ever tried a jury case involving intellectual property, the damages tend to be very often hard to assess. I’m talking about actual damages. Statutory damages is weird. When you first encounter it, you think, well, it’s punitive; it has all these equitable aspects to it. Why are juries the ones that are making these sort of what we would generally in litigation associate with judicial-type decisions regarding equity, regarding penalties?
Now, of course, juries do make verdicts in terms of punitive damages in other contexts; I recognize that. I think that’s a question that’s worth asking. . . .