Company Caught Downloading Competitor's Software Just Has To Pay The Fee To Buy One License
from the seems-more-reasonable dept
Here’s an interesting case highlighted by Eric Goldman, involving two competing software companies. One of the companies, Real View, downloaded an infringing copy of the other company’s (20-20 Technologies) software via a file sharing network. It seems this part is not contested. Real View then used the software to learn about what 20-20 was offering, and modified its own software to include some similar features, and then used a different business model which undercut 20-20’s business model quite a bit. 20-20 sued for infringement both over the download and over the software. The jury, quite reasonably, said that the new software didn’t violate anyone’s copyright, as reverse engineering similar features to a competitor is not infringement.
However, since the initial download was infringing, the jury did have to rule on the damages there. I’ll let Eric summarize this part:
20-20 argued that Real View should pay $38M, which is the amount 20-20 spent to buy a competitor company. Failing that, 20-20 argued that Real View should pay $2M due to “price erosion.” Real View said it should pay 20-20’s standard license fee of $4,200–although apparently 20-20 wouldn’t have licensed the software at all to Real View, making the license fee calculation somewhat hypothetical. Real View also admitted to about making three-quarter million dollars in profits from its own licenses.
The jury came back with an award of $1.37M. In this ruling, the judge issued a remittitur down to $4,200, holding that Real View only was liable for the license fee for the unauthorized download–everything else wasn’t proved or was irrelevant. For example, the court rejects all of 20-20’s arguments about Real View’s “saved development” costs as speculative. Perhaps more importantly, 20-20’s claims of price erosion were irrelevant; any price erosion occurred due to Real View’s non-infringing competitive software, not the infringing software download itself, and 20-20 didn’t prove the causal link between the two well enough. Similarly, the court says 20-20 can’t get any of Real View’s profits from the non-infringing competitive software simply because it was facilitated by the illegal download.
This seems perfectly reasonable, and it’s too bad that the jury seemed to have completely ignored the basics and seems to want to punish Real View for competing legally. Thankfully, the judge saw through that and reduced the jury’s award. Of course, as we’ve seen with the remitittur process in the Jammie Thomas case, that allows 20-20 to “reject” the remitittur and get a new trial — which appears to be exactly what 20-20 is doing. Again to Eric:
This case is interesting because it highlight how copyright owners can easily overclaim damages. Even if one step in the defendants’ process involving infringing activity, that doesn’t mean that the copyright owner gets to disgorge the defendant of all of its profits. For example, if a defendant impermissibly scrapes a plaintiff’s website–making unauthorized copies into RAM while doing so–but the defendant’s resulting publication doesn’t infringe the plaintiff’s copyright, arguably this case would take the defendant’s profits off the table, leaving only the potentially meager and overly speculative damages from the illegal download.
I agree, but I also think it’s interesting because it’s rare that we see copyright cases where they argue over actual damages, rather than statutory damages. Copyright holders love to jump straight to statutory damages, because they tend to be so high (and totally out of proportion with actual damages). That’s why something like this ruling is interesting, as it suggests (again) that perhaps the payment for downloading music should be the cost of licensing it for personal use — or around $1. But as with the Jammie Thomas and Joel Tenenbaum trials, juries seem to massively inflate what they’d like to award for damages, even if there’s no evidence that the downloads directly caused any real or significant damage.
Filed Under: actual damages, competition, copyright, license, statutory damages
Companies: 20-20 technologies, real view
Comments on “Company Caught Downloading Competitor's Software Just Has To Pay The Fee To Buy One License”
Somebody needs to explain this to a few more courts.
Re: Re:
So let me get this straight…
If I write a book named Harry Blotter and the Deadly Hallows, about a wizard who lives a Hogblorts School of Witchcraft and Wizardry, who is looking for a bunch of things within which a soul was hidden and destroys them to kill an evil wizard named Voldegort…I can’t be sued because I reverse engineered the story and came up with better, cooler names?
Really? So you can copy anyone by looking at what they did, then adding their best work into yours and claiming it is your own…and that DOESN’T infringe on copyright? Ok, so why should anyone bother to do their best work then, if it will only be stolen by the next jackass who has no brain, but a good ability to copy? How do the real intellectuals who are creative and groundbreaking ever protect their work?
I don’t mean frivolous lawsuits, but this seems quite legit. One company develops something, but then another, whose product sucks, copies everything, claims it is their own, then make money because they market bigger.
If that is capitalism, then why bother trying to save it?
Re: Re: Re:
Your HP example is a strawman. In it you avoid addressing the real concept, which is that ideas are not protected by copyright. Your example is a strawman because the implementation you give is a ripoff of another protected implementation.
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Actually, no one is going to sue you because you won’t make a dime! You are last-to-market, and have no authenticity. Everyone will know who the real author is, because she is popular. You could always try copying unpopular books…
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If I write a book named Harry Blotter and the Deadly Hallows, about a wizard who lives a Hogblorts School of Witchcraft and Wizardry, who is looking for a bunch of things within which a soul was hidden and destroys them to kill an evil wizard named Voldegort…I can’t be sued because I reverse engineered the story and came up with better, cooler names?
I don’t think you understand what reverse engineering means.
Here’s a good place to educate yourself: http://digital-law-online.info/lpdi1.0/treatise25.html
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You’re describing plagiarism, which is a totally different concept to the one being discussed. Do try to at least address the actual point being raised.
Re: Re: Re:
If I write a book named Harry Blotter and the Deadly Hallows, about a wizard who lives a Hogblorts School of Witchcraft and Wizardry, who is looking for a bunch of things within which a soul was hidden and destroys them to kill an evil wizard named Voldegort…I can’t be sued because
parody is protected by fair use.
FTFY
and , incidentally if the law had been as you like to believe it is in the 16th century nwe would now not have half of Shakespeare’s plays.
IF the law really is as you believe then it needs to be repealed, urgently!
Re: Re: Re:
Books are just like software after all.
For your analogy to work you’d have to be able to reverse engineer the way Harry Potter books make their readers feel without actually reading the books and then write your own book that make readers feel that way. Like having a boy hero of uncertain past come of age by overcoming a great world crisis (where haven’t I heard that before).
You see they didn’t have the code, the actually copyrighted part of the software, to work from. The things the software does are not copyrighted because copyrights do not protect ideas the protect specific expressions. So without copying a specific expression there is no copyright infringement.
Re: Re: Harry Blotter...
Not a copyright violation. This has been done for years as satire. Also, copying a book is not reverse-engineering. Reverse engineering requires turning binary code into a form that is human readable, usually to discover how the code actually works.
“For example, the court rejects all of 20-20’s arguments about Real View’s “saved development” costs as speculative.”
Does this mean that 20/20 stood up in court and claimed that it was cheaper to deploy the pirated version than the legal version, even above and beyond the cost of the licenses? That’s a crazy argument to put voice to as a representative of a software company. No wonder they are getting killed in the market and suing…
Re: Re:
UGH, i read that wrong… development, not deployment. too many deployment documentation this month…
the payment for downloading music should be the cost of licensing it for personal use — or around $1.
Which is precisely why the copyright groups are going for statutory fines. To do otherwise means they have to actually lay claim to how much damage was done through downloading. Meaning nearly nothing. Going to statutory fines is just excessively gouging as no one in file sharing is turning a profit.
The reality is the cost would be a dollar and not worth going to court over. Those musicians that feel different need to take it up with their label who obviously shafted them and convinced them it was a good deal.
Re: Re:
I’d honestly be interested in, say, the RIAA being forced to come up with an acceptable calculation by accepted auditing and accounting practices for how much they DO lose on a a few songs being downloaded. I say accepted because like so many others in the “copyright industry” (read entertainment and publishing).
I say accepted because the “copyright industry” has been doing fantasy accounting for so many years that I’m not sure they’d know the real thing if it bit their leg off.
Still, I’m sure it would be far, far less than $1,
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Funny isn’t it, statutory fines 150,000 times the value of the item being downloaded. That would mean if you could “download a car” the statutory fines for the least expensive new Rolls Royce a 2011 Ghost – MSRP $246,500 would be $36,975,000,000 USD.
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The RIAA’s method of calculation for damages includes counting the same thing over and over again, in the same way that they count lost sales over and over again as if people burn money they otherwise might have spent on media.
If the RIAA were to assert actual damages, they would say that a person who participates in a download/upload swarm is liable for every other single participant’s activity as well as their own. This is what many industry apologists said about Jammie Thomas – that she should pay for everyone who might have downloaded the same songs from her, times whatever the most obscenely punitive multiplier might be. But if the RIAA got more than one person into court, they’d be claiming multiple people responsible for singular acts by individuals over and over again.
…Which is why taking their calculation methods to their logical ends means concluding that the big recording companies would be making more than the GDP of every nation in the world combined.
Re: It seem kind of insane, after you think "I really would download a car"
Funny isn’t it, statutory fines 150,000 times the value of the item being downloaded. That would mean if you could “download a car” the statutory fines for the least expensive 2011 Rolls Royce Ghost – MSRP $246,500 would be $36,975,000,000 USD.
Re: Re: It seem kind of insane, after you think "I really would download a car"
Responded in the wrong place
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I don’t think that’s quite fair though. You should have pay at least something more than the original price of the product; otherwise there would be almost no point for it to be illegal to pirate things.
It’s all amusing, but sort of not so relevant in the Thoams case, because she wasn’t found guilty of the download, but rather of the upload / sharing of the files, which is just no the case here.
I would say that you and Mr Goldman are taking the “wishful thinking” train to the wrong station (again).
Re: Re:
How is this for you. What is the market value of the recipe for Coke-a-Cola? Lets call it an even Billion dollars. Now multiply that by 150,000. I believe that ends up number larger than the value of every corporation on earth.
How is that even remotely fair as a fine?
Re: Re: Re:
Well, first off, it isn’t a fine. Fines are punishments for crimes “against the state”.
Second, if someone did get the true recipe for Coke syrup, and did distribute it online, the repercussions for the drinks giant could be huge – literally to the point of putting them out of business in many markets. Considering they have 35 billion (yes, with a B) in sales in 2010, and that the company has been around for a very, very long time, and should normally be around for a very, very long time in the future, the potential harm is, well, insane.
Now, as for the 150,000 times figure… no, that would be appropriate. That’s why the copyright law has a low and high number, not something arbitrary.
Let’s play a game. How much do you think the rights to a million selling album is worth in the US alone? Let’s say it generates 10 million dollars in sales in it’s first year, and 10 million dollars more in the next 30 years. Now, what would a company pay to license those rights to be able to sell it? A million? 2 million?
What would they pay if they had to share the licence with another company? Half a million?
What would happen if the other company was giving the product away for free, effectively diluting the market? What would they pay for the licence then? $20?
See, what Thomas and others do in proving the content and distribution mechanism for piracy is to lower the value of the license to sell the product, which in turn lowers what the artist can reasonable market that global license for.
So in the case of Thomas, assigning a value of $1 is looking at the wrong thing: What was lost wasn’t a single copy of the song, rather what is lost is the value of the distribution rights… and that is certainly more than $1.
Think about it. Don’t answer fast, actually take a moment and think. I know, Mike doesn’t teach you to think for yourself, but you should try it. Where are the true losses in the music industry? The movie industry? If they cannot license the product because the market is flooded (this is particularly true for secondary / foreign markets), then income is lost.
Think.
Re: Re: Re: Re:
AC, if the market is so flooded, shouldn’t the movie and music industry (and any industry that has pirated material online) be tanking right now? But…they aren’t.
Re: Re: Re:2 Re:
Umm, this year was the lowest year for movie ticket sales (in numbers) in 16 years.
Music industry is down (in dollars) 58% in 10 years.
Yes, tanking.
Re: Re: Re:3 Re:
“Umm, this year was the lowest year for movie ticket sales (in numbers) in 16 years.”
Yet grosses are up. This is a bad thing?
Oh, and where did you get your figures from? Are they worldwide or just the US box office? Do they take into account independent cinemas or just the major chains? What about secondary markets and new services that didn’t exist 16 years ago? (etc., etc.)
“Music industry is down (in dollars) 58% in 10 years.”
No, as is regularly explained to you – the recording industry and the music industry are totally different things.
“Yes, tanking.”
In the alternate reality in which you seem to reside, yes. Here in our reality, no.
Re: Re: Re:3 Re:
[citation needed]
Re: Re: Re: Re:
Are you stupid or just dishonest?
Quote:
If anybody got the real Coke syrup recipe and posted online, first you need to see if it was acquired in an illegal manner, someone could have guessed it through reverse engineering and come up with the true one is that illegal? nope.
Breaking into some office to get that recipe that would be illegal.
There is also the history of how Pepsi started, is rumored that they got their hands on the original recipe, did Coca Cola died?
Quote:
Statutory damages are generally used for deterrence and punitive measures, if justice was to be served they would be a percentage of what one earns not some fixed value that punish the poor more than the rich, it should be painful regardless of who you are and how much you make so no a fixed value that doesn’t take into account how one would be affected by it has little value as a deterrent to people who would just abuse the law, first the people who can’t pay it don’t give a damn and second the people who can afford it doesn’t feel the pain enough, which leaves a small middle class of people who would be deterred by it.
But most importantly, those things are decided by society, not by congress, you can try and say copyright infringement is a crime however if the majority of people don’t see it, you have no support and little to no chances of changing social behavior through enforcement of unpopular laws, and trying to enforce can only generate anger and it grows everyday a little bit more, I once thought copyright was ok, ten years later I believe it should end and more and more people are starting to feel the same, it could take another 20 years but if you keep that up, copyright will end once the children becomes the legislators of the future.
Quote:
Re: Re: Re:2 Re:
“Breaking into some office to get that recipe that would be illegal.”
Doesn’t matter – see the whole Wolverine case. The only way the guy got a copy of the unfinished movies was that someone had to steal it, plain and simple. He gets 1 year in jail, and Mike writes sob stories about how it’s unfair.
More importantly, face the fact: Just like piracy of anything else, it’s the result that matters, not the method used to get there. Once the information is “out there”, there is no way to drag it all back in.
” someone could have guessed it through reverse engineering and come up with the true one is that illegal? nope.”
People have tried for 100 years or so, and they keep failing. There is a whole lot more to Coke than most realize.
“It is a win for society and it is a win for everybody who needs to use that resources to make money, it expand the market and it creates markets, “
It’s fine, but when it’s based on taking someone else’s work and giving it away for nothing, it’s a basic failure.
Re: Re: Re:3 Re:
“The only way the guy got a copy of the unfinished movies was that someone had to steal it, plain and simple.”
Except it wasn’t. I won’t waste my time explaining definitions of words to you again, nor berating you for your lack of facts or imagination – I’m tired of it.
“Mike writes sob stories about how it’s unfair.”
No, he didn’t. He wrote stories about how the studio could have handled it better, how there was unlikely to be real damage from such an unfinished print of the film, and how the movie ended up being far *more* successful than expected following the leak. He wrote stories about how the studio could use the leak to increase their profits, not exactly a “sob story”. Unless you count him writing about how jailing the guy won’t achieve a damn thing a “sob story”.
Could you link to the fictional version of Techdirt you seem to be reading? It has to be another site, since you regularly attack people for claims they didn’t make, and often the exact opposite of what they truly claimed. It would be interesting to compare these stories with the ones that exist on this site.
“Once the information is “out there”, there is no way to drag it all back in.”
Yet Wolverine was a box office hit, even though it had been “pirated” so many times. In fact, every film that’s been a box office success in the last 30 years has also been heavily pirated in some way. It’s almost as if there’s other factors involved than the ones you want to scapegoat when a product fails…
Re: Re: Re:4 Re:
“Except it wasn’t. I won’t waste my time explaining definitions of words to you again, nor berating you for your lack of facts or imagination – I’m tired of it.”
Paul, this isn’t your typical “rip a DVD” thing. Break and enter, obtaining a “copy” by theft. You can play all the word games you want, this was theft, plain and simple.
“he didn’t. He wrote stories about how the studio could have handled it better, how there was unlikely to be real damage from such an unfinished print of the film, and how the movie ended up being far *more* successful than expected following the leak.”
Yup, basically, he said it was unfair for the guy to go to jail, because he did such a good thing in promoting the movie. Glad we agree.
“Yet Wolverine was a box office hit, even though it had been “pirated” so many times. In fact, every film that’s been a box office success in the last 30 years has also been heavily pirated in some way.”
Oddly, I provided a story to Mike this week (which he seems to have ignored… or perhaps he is on holiday time auto pilot) that shows there is no correlation between box office and number of times pirated. In fact, in the top 10 pirated movies for 2011, one of them had a very small box office and was pirated more than many of the top grossing movies.
” It’s almost as if there’s other factors involved than the ones you want to scapegoat when a product fails”
Nobody is scapegoating piracy and ignoring other factors. It’s just ONE factor of many. But it is a factor. You need to give it up and accept it as the truth. It doesn’t take away from many other factors… but one thing is clear: Movie ticket sales are at a 16 year low, continuing a trend that started when the economy was booming – at the same time that piracy is booming. It isn’t hard to see the potential relationship between the two.
Re: Re: Re:5 Re:
Yup, basically, he said it was unfair for the guy to go to jail, because he did such a good thing in promoting the movie. Glad we agree.
You are very entertaining! Thanks for posting here, keep it up.
Re: Re: Re: Re:
“should normally be around for a very, very long time in the future”
“Let’s say it generates”
“what would a company pay”
“What would they pay”
“What would happen”
“What would they pay”
————————
This line write here, I call it the hypothetical divide. It’s where you transition smoothly from posing hypothetical questions with no factual answers other than the ones you made up on the spot to pretending the numbers you made up on the spot are the facts. You then go on to state your assumptions as if they were certainties you’ve already proved:
“is to lower the value of the license to sell the product”
“and that is certainly more than $1.”
So yes, we should all take a moment to think and observe that you’ve actually demonstrated nothing. You made large number of assumptions, posted absolutely no evidence that any of them are true, and simply proceeded with your conclusion as if they were true. I know the industries you’re white-knighting don’t teach you to back up your assumptions with valid evidence but you should try it. What are the true losses in the music or movie industry? Not your made up example ‘losses’ that aren’t real or their made up example losses that aren’t real. You have to show that actual income is lost or at least provide evidence demonstrating that there’s a high probability that income was lost before declaring that ‘income is lost.’ Before you try to claim otherwise, no, the existence of infringement proves no such thing a priori.
Think.
P.S.
“That’s why the copyright law has a low and high number, not something arbitrary.”
Copyright law’s low and high numbers are arbitrary unless you can produce some formula by which they were determined the only other option is that they were arbitrarily established at the whim of the authors of the law.
Re: Re: Re: Re:
Your hypothetical Coke story falls flat rather quickly because you cannot copyright a recipe, thus the theft would not fall under copyright law, but rather trade secrets.
Re: Re: Re:2 Re:
Your hypothetical Coke story falls flat rather quickly because you cannot copyright a recipe, thus the theft would not fall under copyright law, but rather trade secrets.
Flat – GET IT?? har har!
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“How much do you think the rights to a million selling album is worth in the US alone? …. blah blah imaginary numbers”
The rights are worth nothing, it is an imaginary construct created with the statute of Anne. Lets call copyright what it is, it is an anti-right, an attempt to control free speech. The content industry’s entire business model is built on the heels of that. The fear governments have of the free flow of information has been around for a very long time. The invention of the printing press allowed for the dissemination of massive quantities of knowledge, and had to be controlled.
Looking at it from that perspective I now understand why so many in the government want SOPA.
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Also the recipe for Coke-a-Cola is already out there. It hasn’t done any damage to Coke. Coke does a lot more than sell just “coke”. They have dozens if not hundreds of brands they have purchased over the years. Coke is accounting for less of their revenue every year.
Another thing whats your address? I want to send you a “Troll Harder” tee shirt.
I’m sorry, but simply paying the cost of the license is insufficient. The first company was unwilling to license to the second company at all, probably for the exact reason that they would reverse engineer it. So the second company can get around this by using shady means and then just pay the normal costs later? And how much would you like to bet that the normal license contains a provision expressly forbidding reverse engineering? As the court document notes, an unrestricted licnese would probably go for a much higher price… and an infringing copy, not being subject to a license, is pretty much the same as an unrestricted license.
I think treble damages would be about right. $12,600. At least that would make the infringing company pay SOME penalty for their actions.
Re: Re:
The first company was unwilling to license to the second company at all,
Which is an anti-competitive practice – for which the first company shouold be prosecuted.
Re: Treble Damages by AC
What they did does NOT sound like reverse engineering. They just looked at the feature set and put those features in their own version of the product. They still had to develop the features, and test them, and document them.
Reverse engineering means figuring out HOW something is done, not what it is. From the Coke example, it would mean something like using mass spectrometry to figure out the recipe from a bottle of Coke. All they did was taste some, see that it has a certain flavor, then duplicated the flavor (or in this case flavors=features).
Re: Re:
Even if 20-20 was unwilling to sell Real View a copy of the software directly, I’m sure that someone at Real View could have purchased the license, perfectly legally, as an individual.
Since the court determined that reverse engineering wasn’t illegal in this case, it really doesn’t matter how Real View got it’s copy.
But since Real View did get their copy of the software illegally, that issue has to be resolved. It seems to be all other factors about what they did with the software afterwards are irrelevant to that specific case. Those other issues may still warrant cases of their own, but it wouldn’t matter if the software was obtained legally or not.
So the fine should simply be put on the illegal download, IMO.
Is there only 1 case of infringement here?
So file sharing software was used? P2P? Wouldn’t one argue that each and every connection made during the transfer is in part or in whole a separate case of infringement? This argument at least increases the damages past $4200.
So if the Judge can just change what the jury decides, why have a jury in the first place. I’m not arguing on just this case, but there have been several ones similar to this where the jury awards one group X million, and the judge changes it to a different amount. Does this mean that the jury isn’t being educated enough before debating?
“For example, if a defendant impermissibly scrapes a plaintiff’s website–making unauthorized copies into RAM while doing so”
I really hate reading stuff like this. Might as well say “If a defendant impermissibly views a plaintiff’s website–making unauthorized copies on their retinas while doing so”.
The idea that RAM constitutes infringement shows such a complete lack of understanding of what infringement is and how technology works that it leaves me baffled.
Re: Re:
I have used about 20 or 25 different browsers over the years. Every one of them had, or has a print page functions, as well as a show the source code function. This is an Internet standard. So I go to some website that does not have a print button coded into it. Does this prevent me from printing the page? Should the website owner be upset that someone ‘circumvented’ their intent by printing it anyway? Should the website owner be upset that I looked at their coding, and maybe used the same or similar coding on another site? NO. Because as the parent said it “shows such a complete lack of understanding of what infringement is and how technology works”
Re: Re: Re:
Actually what the technology does is to reveal that copyright law has no clothes!
Actual damages for download
The actual damages in the RIAA mp3 scenarios are actually far less than a license fee, for several reasons: (1) the record companies don’t sell mp3’s directly but through resellers, so the wholesale rather than the retail price controls, and (2) there are heavy royalties payable on the sale of each mp3. The wholesale fee is 70 cents not 99 cents, and the royalties average in the neighborhood of 35 cents, so — if each unauthorized download represented a lost sale — the actual damage would be in the neighborhood of 70 cents minus 35 cents, or 35 cents.
But each unauthorized download does not represent a lost sale. Statisticians have claimed that, on average, for each of seven unauthorized downloads there would have been a single purchased download. So arguably the actual damages for download of a typical mp3 would be 5 cents, not 99 cents.
Re: Actual damages for download
The thing is, I think if people had to pay those fees it wouldn’t be fun but most would shrug it off. It’d be like getting a speeding ticket. You know you were speeding, you got caught. The Hwy Patrol wins that round.
Of course the issue is that police aren’t involved (and that’s not a bad thing) and the cost of bringing these ‘pirates’ to court are certainly more than the actual damages.
So there would be little to no incentive for the rights holders to take casual downloaders to court if they couldn’t swing those huge fines around. How else is it going to be worth their while?
Of course what they should really be doing is listening to their customers and what they want, but that’s probably wishful thinking.
If the judge can just change the results to whatever they feel like, why have a jury decide damages then? I’d be pissed if I wasted hours/days/weeks of my life listening, deliberating only to have our collective effort overruled at the end.
Re: Re:
A dozen people too stupid to get out of jury duty: Would you take their advice on anything? Geez.
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A dozen people too stupid to get out of jury duty: Would you take their advice on anything? Geez.
[soapbox]
I get annoyed with people saying this kind of thing.
I have been summoned for jury duty twice, once I wasn’t chosen and the other I served on a malpractice lawsuit. I am most certainly smart enough to have gotten out it if I wanted too, but I didn’t, because I feel like it’s my civic responsibility. It’s like voting, if you don’t vote, then I really don’t give a shit about your opinions concerning our elected officials.
[/soapbox]
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I’ve pretty much decided ?I think? more-or-less, probably, that the next time I get summoned for jury duty, I’m going to refuse to submit to the administrative search at the courthouse door.
Maybe you think it’s your civic responsibility to play charades. I don’t.
When you read the opinions on administrative searches, the judges all say, ?Oh, you consented. You didn’t have to get on that airplane. You didn’t have to get on that train. You didn’t have to go into that stadium. You didn’t have to go into that building. You consented to that search.?
Well, I don’t feel like consenting to search at the courthouse door anymore. Not if the judge is ordering me to enter that building. Then it’s no different than if the judge is ordering me to ?consent? to an ?administrative? search.
It’s not like the judges pay attention to the jury’s advice these days, anyhow.
Re: Re: Re:2 Re:
Well, I don’t feel like consenting to search at the courthouse door anymore. Not if the judge is ordering me to enter that building. Then it’s no different than if the judge is ordering me to ?consent? to an ?administrative? search.
That does provide an interesting situation, doesn’t it.
It’s been awhile (2007, I think) since I had jury duty. I wasn’t searched at all on entry – just a simple pass through a metal detector to make sure I wasn’t carrying weapons.
That’s why something like this ruling is interesting, as it suggests (again) that perhaps the payment for downloading music should be the cost of licensing it for personal use — or around $1. But as with the Jammie Thomas and Joel Tenenbaum trials, juries seem to massively inflate what they’d like to award for damages, even if there’s no evidence that the downloads directly caused any real or significant damage.
You fail to consider that the amount the jury awards is for more than simply what a download would have cost. There are several factors that go into determining the award. For example, if the infringement was willful, part of the award is meant to punish the defendant’s intentional wrongdoing. If you want to say something intelligent about jury awards, you should do some basic research on what factors are considered in coming up with those numbers. Simply saying that it should be about $1, the cost of a download, shows you haven’t done any research on the issue.
Re: Response to: average_joe on Dec 30th, 2011 @ 7:36am
Well, considering that it was THE JUDGE who modified the award, that’s an interesting tack to take. Not, I assure you, that you are definitively wrong, but I think that the point is that the jury usually vastly overestimates the level of harm done in copyright infringement cases.
Re: Re: Response to: average_joe on Dec 30th, 2011 @ 7:36am
And the judge cut it down to $2,250 per track, well above $1 per track like Mike is saying, because there’s more to it than the $1 per track number. I agree that the juries in both Tenenbaum’s and Thomas-Rasset’s cases went overboard. But considering that their infringement was willful and that they lied under oath (if I’m remembering that correctly), then they certainly deserved an award that punished them. That said, my point was merely that there’s more to an award of damages than $1 per track, and it’s silly for Mike to pretend it’s that simple.
Re: Re:
>If you want to say something intelligent about jury awards, you should do some basic research on what factors are considered in coming up with those numbers. Simply saying that it should be about $1, the cost of a download, shows you haven’t done any research on the issue.
So… that means you have, right? Would you kindly show us your research on the issue, then?