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(Slashdot)   Using federal courts to extort huge copyright violation payments might be just a little bit unconstitutional   (yro.slashdot.org) divider line 164
    More: Obvious, federal courts, Infraction, Federal Circuit, statutory damages, overly broad, trial courts, payments  
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4274 clicks; posted to Geek » on 13 Dec 2012 at 12:29 PM (2 years ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2012-12-14 08:35:12 AM  

Bisu: Teiritzamna: grimlock1972: personally i think for this kind of piracy / copyright infringement damages should be capped at the retail value of the item or items in question +10% and legal costs are the responsibility of the parties themselves unless there is ironclad proof the items were being sold for profit.

The trick - as has been discussed, is that the retail value of what she "took" was actually rather high - the cost of a music distribution license.

Why do you guys continue to compare this to things such as a license for digital distribution, or (even worse) the Beatles' publishing rights? To compare to a distribution license the penalty would appropriately be about $0.50 for each copy she distributed, plus her own. For the equivalent with torrenting, the penalty should be $0.50 x (share ratio + 1), because that's how much the owners would get if she were a legitimate digital distributor. This would be the amount of money the rights holders would have gotten if every single download was one lost sale, if they applied this fine to every uploader. Since she didn't have exclusivity rights, you can't honestly include those costs.


You're assuming that she's a reputable online seller with an established reputation and track record such that Capitol Records would offer her a royalty agreement like that.
Without any such track record, any distribution agreement wouldn't be strict "$.xx per copy sold", but "$.xx per copy sold for the first n copies, $.yy per copy sold for the next m copies, with a $zzz,zzz minimum royalty payment per year regardless of number of copies sold below that amount." Almost all licenses based on royalties have a minimum payment clause, particularly so in cases of disreputable or questionable sellers - it's a way for the licensor to avoid the licensee doing questionable accounting, giving the product away for free, or closing up shop and not selling any while still claiming the license contract is valid.

To compare to Michael Jackson's rights to the Beatles, you would be saying she bought the publishing rights. This means she would be privy to about 50% of the royalties the songs made through all their sales through any medium. Somehow I doubt they're giving her their royalties. To suggest this case is equivalent to that is completely asinine.

You're comparing this to an exclusive license with a sublicense back to Capitol Records, such that Capitol would be paying her. We're comparing it to a non-exclusive distribution license, the same as if she was a music retailer.
 
2012-12-14 09:11:50 AM  

EbolaNYC: Looks at profile... Patent attorney.

Yeah well that pretty much explains it. This is his meal ticket, so of course he thinks it's a good idea to extort massive damages from these folks.


Ah and now the accusations of shill-ery.

Listen chief, if you jumped into a thread where people were making angry statements about a problem in a unix system, only for a unix admin to roll on in and explain to them why the biatchery of the thread was wrong and what the actual problem was, would you a) assume he is just saying this because hey, unix systems are where he gets his money so he is obviously lying to protect his business; or b) he happens to know what the fark he is talking about - unlike most everyone he is correcting.

None of the lawyers in this thread (or the law students ^ ^) are arguing that these damages are good - we are just saying they arent unconstitutional. You can have a bad law that is 100% constitutional - in fact i would bet you that most federal and state statutes are disliked by someone, yet the vast majority of them are totally valid under the foundational document of the country.

Finally, and i I know it may be hard for you to wrap your head around, but there are many different kinds of lawyers. Theae, for example, doesn't litigate, and definitely doesn't litigate in copyright - so it matters exactly zippo to him what the outcome of this case is - from a professional standpoint. I do litigate in IP, but the vast majority of my clients are - wait for it - defendants. That means they are the ones accused of infringement. I know! There are lawyers on both sides? Crazyness! So, Sunshine, it would likely be in my professional interest if this woman actually won.
 
2012-12-14 09:20:06 AM  

Theaetetus: EbolaNYC: Sorry, I know you guys like to go on and on about minute details and all but let me cut all that BS out. You're a lawyer and you don't particularly care if something is right and fair as long as you can argue the point to death and win (profit).

Actually, no, you've got it backwards - you don't care whether something is right or wrong, and instead say that if a lawyer says it, they're biased shills so it must be wrong.

The astute reader would note that all of us lawyers have actually been arguing against the massive damage awards, just not with "wharrrgarbl unconstitutional excessive fines due process!" rants.
The less astute reader sees everything in a dichotomy in which if you're not wharrgarbling one way, you must be wharrgarbling the other way just as hard, so the fact that we're not saying this is unconstitutional means we must be receiving fat RIAA checks.

Guess which group you fall into?


I don't actually care, but you're entitled to an opinion.

It's been my experience that instead of simplifying things, lawyers get involved to invent all manner of convoluted language and procedures to ensure that to do absolutely anything, you need a lawyer to involved.

Just look at Congress, full of lawyers.

So forgive my poor impression of lawyers, I am sure some of you are peaches, but not very many.
 
2012-12-14 09:31:06 AM  

Princess Ryans Knickers: And it's a misuse of the term. Again, what's the definition of compensatory?


Wow.

I mean . . . fark. Wow.

ok - i know i shouldnt attempt to educate a person who thinks the Supreme Court misuses the name for certain types of damages - but i am a sucker for enlightening folk, so here goes.

You are suffering under the very misteken impression that "punitive damages" mean daamages imposed by the state like a fine. They do not. They are a measure of civil damages. There are three separate concepts at issue here and you are wrongfully conflating them:

Compensatory damages - these are civil damages imposed by the finder of fact (usually a jury) in order to compensate the plaintiff. They are exist to make the plaintiff whole. Say that you have a car that is worth $10,000. I crash into it, totalling it. You sue me for negligence, and win. the jury awards you $10,000 - the value of what you lost. This puts you back into the position you were in before the accident - thus these damages are called compensatory.

Punitive damages - these are also civil damages imposed by the finder of fact. However they are not meant to compensate the plaintiff, but to punish the plaintiff and deter future bad conduct. Going back to our accident, perhaps i did not hit your car by accident, but because i willfully wanted to destroy your property and hurt you. You might be able to argue that the egregiousness of my actions were such that i need extra punishment. Punitive damages are authorized via statute, and are generally narrow in where they can be imposed. The money goes from the defendant to the plaintiff.

Fines - fines are not civil damages. They are a criminal sanction imposed by the state. The money assessed against the defendant goes to state coffers. If, after the accident, it becomes apparent that i was driving without a license, a police officer could issue a citation which indicates that i must pay a $150 fine for this infraction.

So here's how it works: the 8th amendment "curel and unusual punishment/excessive fines" provision applies only to fines, not the first two. The due process restraint upon the size of punitive damages only applies to the second one. This case involves compensatory damages (set by statute) only. As such, neither the due process concerns regarding punitive damages, nor the 8th amendment concerns with excessive fines applies. ok?
 
2012-12-14 09:37:04 AM  

EbolaNYC: It's been my experience that instead of simplifying things, lawyers get involved to invent all manner of convoluted language and procedures to ensure that to do absolutely anything, you need a lawyer to involved.


Its been my experience that instead of simplifying things, electrical engineers/doctors/physicists get involved to invent all manner of convoluted language and procedures to ensure that to do absolutely anything, you need an electrical engineer/doctor/physicist to be involved. Or! The world is complicated and convoluted, and professions end up reflecting that. It would be nice if we could all do our own medicine and avoid the high costs of healthcare. Turns out medicine is hard and complicated, and thus it is a tangle of jargon, obscure facts and contradictory seeming rules. Turns out law is pretty much the same.
 
2012-12-14 09:45:13 AM  

Theaetetus: Almost all licenses based on royalties have a minimum payment clause, particularly so in cases of disreputable or questionable sellers


Source?

Theaetetus: You're comparing this to an exclusive license with a sublicense back to Capitol Records, such that Capitol would be paying her. We're comparing it to a non-exclusive distribution license, the same as if she was a music retailer.


Weren't YOU the one bringing up Michael Jackson's partial ownership of Beatles' rights? That's what I'm addressing. This issue is NOTHING like that, yet you brought up the dollar amounts from that deal.
 
2012-12-14 10:27:52 AM  

Bisu: Theaetetus: Almost all licenses based on royalties have a minimum payment clause, particularly so in cases of disreputable or questionable sellers

Source?


Minimum payments are a standard drafting clause. I'm not sure how I'd begin to prove that to you, since we don't have access to the actual license agreements. I could show you boilerplate contracts, but you'd probably say that we don't know whether Capitol uses them.

Theaetetus: You're comparing this to an exclusive license with a sublicense back to Capitol Records, such that Capitol would be paying her. We're comparing it to a non-exclusive distribution license, the same as if she was a music retailer.

Weren't YOU the one bringing up Michael Jackson's partial ownership of Beatles' rights? That's what I'm addressing. This issue is NOTHING like that, yet you brought up the dollar amounts from that deal.


Oh, sure, and there's a reasonable argument that her nonexclusive distribution right should be at a lower minimum payment level than his exclusive distribution right, but they're certainly in the same realm - it's not a case of "NOTHING like that", and it's certainly a lot closer than "I can buy this song for $1 on iTunes."
 
2012-12-14 10:29:26 AM  

Teiritzamna: EbolaNYC: It's been my experience that instead of simplifying things, lawyers get involved to invent all manner of convoluted language and procedures to ensure that to do absolutely anything, you need a lawyer to involved.

Its been my experience that instead of simplifying things, electrical engineers/doctors/physicists get involved to invent all manner of convoluted language and procedures to ensure that to do absolutely anything, you need an electrical engineer/doctor/physicist to be involved. Or! The world is complicated and convoluted, and professions end up reflecting that. It would be nice if we could all do our own medicine and avoid the high costs of healthcare. Turns out medicine is hard and complicated, and thus it is a tangle of jargon, obscure facts and contradictory seeming rules. Turns out law is pretty much the same.


You're only saying that because you're a lawyer-doctor and are protecting your own business, shill!
 
2012-12-14 10:50:41 AM  

Theaetetus: You're only saying that because you're a lawyer-doctor and are protecting your own business, shill!


Ahem. lawyer-doctor-stripper. I didn't get my Ph.D in Pole Sciences from Yale for biatches like you to leave it out.
 
2012-12-14 11:39:46 AM  

Teiritzamna: EbolaNYC: It's been my experience that instead of simplifying things, lawyers get involved to invent all manner of convoluted language and procedures to ensure that to do absolutely anything, you need a lawyer to involved.

Its been my experience that instead of simplifying things, electrical engineers/doctors/physicists get involved to invent all manner of convoluted language and procedures to ensure that to do absolutely anything, you need an electrical engineer/doctor/physicist to be involved. Or! The world is complicated and convoluted, and professions end up reflecting that. It would be nice if we could all do our own medicine and avoid the high costs of healthcare. Turns out medicine is hard and complicated, and thus it is a tangle of jargon, obscure facts and contradictory seeming rules. Turns out law is pretty much the same.


Yeah you're so right because the laws of physics and chemistry are exactly like judicial law. Complexity has nothing to do with knowing what will cure or kill and operate safely.

/rolls eyes

My work is finished here, thanks for taking the bait. You guys will argue about anything. Pavlov's dog has nothing over an irritated attorney.
 
2012-12-14 11:43:29 AM  

EbolaNYC: My work is finished here, thanks for taking the bait. You guys will argue about anything. Pavlov's dog has nothing over an irritated attorney.


Toodles, precious. Sorry you think you irritated, but if that mistaken impression helps you get through the day, I am glad I was able to help out.
 
2012-12-14 11:50:43 AM  

EbolaNYC: My work is finished here, thanks for taking the bait.


img3i.www.spoki.lv 
/you're a master baiter all right
 
2012-12-14 12:13:28 PM  

Teiritzamna: EbolaNYC: My work is finished here, thanks for taking the bait. You guys will argue about anything. Pavlov's dog has nothing over an irritated attorney.

Toodles, precious. Sorry you think you irritated, but if that mistaken impression helps you get through the day, I am glad I was able to help out.


It DOES!!!
 
2012-12-14 03:22:47 PM  
That's the opinion of a defendant who lost a lawsuit. Nothing in the article is grounds to draw any conclusions about whether or not that opinion has any merit. It doesn't.
 
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