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are the courts starting to question some copyright claims

July 13, 2010

I have written often about illegal file sharing and what I believe is a disproportionate and heavy-handed approach to what amounts to minor infringement however I must admit that when this infringement is aggregated together the volume is no doubt on a major scale. The almost universal disregard to respect the rights of the owners of intellectual property has created a dilemma for the custodians of those rights that also brought out the fight mentality amongst them.  The victories against this rampage that is illegal file sharing has been huge and the success must no doubt embolden others to commence the fight back and to eradicate the scourge that they believe it has caused to their respective industries so much harm. There are always two sides to every situation and that is why our society has rules, regulations and laws that set the guidelines to acceptable and lawful behaviour and we have courts and judges to interpret and punish infringers.

Our laws are meant to represent us and are enacted to protect us, to stop misappropriation of resources and to create a balanced and fair society for all to coexist and hopefully flourish. We live in complex societies where the rules are constantly changing in a game of cat and mouse with the never-ending racqueting up of technological break through and the advances that these bring. The laws that we live by and choose to obey can be a barometer of society’s views and beliefs and the fact that certain acts can be banned in one jurisdiction but be perfectly legal elsewhere is testament to this.

I want to address these very things, the rules that are used against file sharers and the societal norms that would allow so many law-abiding citizens to commit this blatant disregard for others property rights.

We have seen two high profile cases of copyright infringement levelled against ordinary members of the public fought out in the US courts resulting in huge damages being awarded for the plaintiffs, yes not the state or the crown no these are civil cases. Why is this case civil if it is illegal to download a music file with out the authorization of the owner? Good question and I think probably it’s not illegal or either it’s not worth prosecuting because no physical goods have been stolen. So if the state is not prosecuting what law are organisations using to apply this to a civil court? Well although it is illegal to download the non authorised track however the act of doing so is considered a deprivation, as you might also consider the act of counterfeiting. Actually that is what they equate file sharing too and this is where the remedies come from, a counterfeiting outfit aims to profit from others intellectual property and remedies were enacted to act as both a deterrent and to provide punishment guidelines on action taken against them there are both civil and criminal sanctions available.

The RIAA has pursued thousands of file sharers offering settlements to avoid the costly battles that a civil court trial involves, these settlements of approximately $3,000 US have been quite lucrative and over 20,000 American residents have availed themselves of this inexpensive route out of the state sanctioned extortion racquet. However the test was always going to come if some one resisted and took the fight to court. It was always going to be hard to for the defendant to win as in the majority of cases the person was indeed guilty of downloading a few songs for nix and the RIAA always stated that they were going for broke and after all the (cash) legal remedies available to them and two people did indeed brave the courts and were awarded for their respective bravery penalties of $1.92 million and $675,000, These seemed to out of touch with reality that it seemed some thing had to give and well it appears that separately in both of the successful cases it has. However now these two landmark cases have hit a hurdle and the judges in both these cases are hitting back, and I am I for one am not surprised at all.

Arstechica is reporting that the two separate judges in the Joel Tenenbaum and the Jammie Thomas-Rasset cases won by the RIAA have had their jury awarded settlements reduced by the respective judges. Judge Michael Davis in the Thomas-Rasset case used his power of remittitur to slash the damage award by 97.2 percent, from $1.92 million down to $54,000. The judge further suggested that even this lower amount was too high.

He wrote of his reasons

He noted the difference between what Thomas-Rasset did and the commercial infringement the statutory damage laws were written to stop. “In the case of individuals who infringe by using peer‐to‐peer networks, the potential gain from infringement is access to free music, not the possibility of hundreds of thousands—or even millions—of dollars in profits,” he wrote. “The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music.”

In the Joel Tenenbaum case Judge Nancy Gertne set aside the juries award that she said trampled the Constitution’s “Due Process” clause and slashed the $675,000 award by a factor of 10, to $67,500.

Noting her reasons

“Weighing all of these considerations, I conclude that the jury’s award of $675,000 in statutory damages for Tenenbaum’s infringement of thirty copyrighted works is unconstitutionally excessive,” she wrote. “This award is far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement. In fact, it bears no meaningful relationship to these objectives. To borrow Chief Judge Michael J. Davis’ characterization of a smaller statutory damages award in an analogous file-sharing case, the award here is simply ‘unprecedented and oppressive.’

There has also been two other landmark cases one here in Australia and the other in the US that also have not had the intended outcome that copyright holders would have liked and I refer to AFACT vs iiNet and Viacom vs Google.

In the iiNet case Justice Cowdroy found that the evidence presented in the case showed that iiNet had done no more than to provide an internet service to its users and that while iiNet may have had knowledge of possible infringements occurring on their network and did not act to stop them, not doing so did not necessitate authorisation of said illegal act.

And in the Google case

The United States District Court for the Southern District of New York rejected Viacom’s claim that Google’s You Tube video site was guilty of massive copyright infringement. The court granted Google’s motion for summary judgment and asserted that YouTube fully qualifies for “safe harbor” protections under the Digital Millennium Copyright Act.

So what is happening four high-profile cases and in each one the message is the same the courts are not buying the outrageous claims levelled by the content industries, they can see the end run round archaic laws and are answering back. But what off all the ordinary people who are file sharing and the threats of 3 strikes and internet cut off, well at the moment we will have to wait and see. I think the content industries have pushed and pushed and their arguments were convincing at first, however after all the doom and gloom of the global financial crisis finally people are starting to realize that ordinary people are not the copyright criminals that these laws were enacted to stop. I think that these organisations have been handed a very powerful and lucrative right and that although copyright was easier to control in the analogue world there are limits to the these rights and that the same legislation that granted companies this artificial right can also be repealed if the legislators or the interpretation of these laws can be questioned. I think that all the denial from the industries that the market had shifted and the need to push further limitations on things that technology had removed from the shackles of the analogue world are coming back to bite the very industry. If all this time rather than fight the change they had embraced it these set backs in court would mean nothing as they had addressed their issues and were now competing in the digital world. I still think that the odds are stacked against the user and that copyright is being abused at the detriment of consumers, I however think that at last the legislators and the courts are starting to see the tactics for what they really are and that change may be coming.

What do you think? Has It has taken a lot longer for the reaction to get to this point? Are you dismayed at the state of play in the enforcement of intellectual property? Do you think archaic laws being abused to the detriment of society? You know what I think why not leave me a comment and let me know your opinion.

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