Statutory Damages Strike Again: AFP & Getty Told To Pay $1.2 Million For Using Photo Found Via Twitter

from the that's-a-lot-of-scratch dept

Back in 2010 we first started covering a really bizarre case involving photographer Daniel Morel, the news agency AFP (Agence France-Presse) and Getty Images. There were multiple levels of insanity involved in the case. First, Morel had taken photos of the aftermath of the big earthquake in Haiti. He'd posted some of those photos to the service TwitPic (which isn't Twitter) and then linked to them via Twitter. A different photographer, Lisandro Suero, copied the images to his own account and tweeted to the world that they were available for licensing. AFP started using those photos, uploaded them to Getty (they have a partnership) and credited them to Suero. Morel, reasonably, wasn't happy about this and sent a nastygram to AFP. And then it started to get bizarre: AFP sued Morel. And, no, it wasn't just for declaratory judgment. They sued Morel claiming that Morel's claim against them was "commercial defamation." Seriously.

It was pretty clear from the very beginning that AFP screwed up royally, and then compounded the problems by choosing to sue the guy who actually took the photos. AFP then took it even further, claiming that Twitter's terms of service allows them to use any photo anyone posts to Twitter without getting a license. That's wrong. First, the clause that AFP points to is very clearly about the person uploading the photo granting a license to Twitter, not to anyone else to use beyond Twitter. There is no way anyone can read it honestly the way that the AFP's lawyers claim to have read it. Second, the photo was uploaded to TwitPic, so AFP was looking at the wrong terms of service anyway. They eventually realized this and pointed to a similarly misread clause from TwitPic. The court told the AFP that it had clearly misread the terms of service not once, but twice. And for reasons that I cannot fathom, rather than working out a settlement, AFP stuck to its guns, leading to a trial last week.

That last link has some of the details of the procedural screwups that continued to plague the case, including Morel's problematic responses to discovery efforts. However, in the end, there were still eight awards for copyright infringement, which would qualify for statutory damages, and then another potential 16 awards for DMCA violations. Incredibly, the jury awarded the maximum of $1.2 million in statutory damages ($150,000 per infringement), finding that the infringement was willful. On the DMCA violations, the jury also awarded additional damages for the DMCA violations. His lawyers are apparently claiming that maximum $400,000 there, but other press reports say it's just $20,000, though that would be below the $2,500 minimum per 16 violations, so I'm not sure that's right. The lawyer also seems to indicate that attorneys' fees were awarded as well, though the linked article above is very unclear on the details, appearing to mixup the various awards.

Either way, it's pretty clear that AFP and Getty have to pay up big time. As I stated early on, AFP (who is known for its own copyright maximalist tendencies -- including suing Google for linking to its stories) clearly acted egregiously both in its initial effort and then in the lawsuit itself. Nearly every choice AFP appears to have made here was bad. It shouldn't have used the photos the way it did. It shouldn't have responded the way it did. It shouldn't have argued the ridiculous legal argument it tried. And it never should have let the case continue, rather than figuring out a way to settle. It is, of course, entirely possible that Morel wouldn't settle at a reasonable rate (his actions in the case were... hardly stellar). But, everything about AFP's actions were ridiculous.

That said, $1.2 million? Even though this was commercial use... And even if the infringement was willful... And even if AFP's conduct was and remained egregious throughout this whole ordeal, it seems insane to argue that $1.2 million is a reasonable award for sharing 8 newsworthy photos. The statutory damages provisions of US copyright law are way out of whack with reality, and this case is just the latest in a long line of examples.


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  1. This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Nov 22nd, 2013 @ 6:07pm

    See? Copyright works for the people! Forbid it to corporations!

    Wasn't insane until AFP tried to stonewall without a lick of justification. Its "conduct was and remained egregious throughout this whole ordeal", and its conduct is also what made it an "ordeal". So sounds about right to me, for a huge corporation that wouldn't notice ten times this amount. -- BUT Mike flinches, even after listing all the reasons why it's justified. He just appears to be so rabidly pro-corporate that is compelled despite the clear facts here to sympathize with corporation over the photographer.

    One of Mike's favorite terms is "copyright maximalist", and yet his own goal, along with all corporations, is Money Maximalization: to reduce quality and get more profits.

    14:06:32[p-37-5]

     

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    Zem, Nov 22nd, 2013 @ 6:10pm

    Whenever the law has to deal in absolutes, statutory damages, minimum sentences, three strikes, there will always be injustice.

     

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    Anonymous Coward, Nov 22nd, 2013 @ 6:13pm

    Re: See? Copyright works for the people! Forbid it to corporations!

    Bot-Blue again: ignore.

     

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    Spaceman Spiff (profile), Nov 22nd, 2013 @ 6:17pm

    Agreeing to disagree

    I disagree that $1.2M is too much. In my opinion, the purpose of such awards is to make well-funded organizations like AFP and Getty think twice about acting like the bandits that they are... Personally, I think they should pay another 2 or 3x in penalties.

     

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    ChurchHatesTucker (profile), Nov 22nd, 2013 @ 6:19pm

    Re: Agreeing to disagree

    Exactly. When applied to Joe Blow, it's a travesty of justice. When applied to AFP, it's maybe enough to make then take notice.

     

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    Christenson, Nov 22nd, 2013 @ 6:38pm

    Punitive Damages for willful abuse

    Spiff
    While I (and apparently the jury) agree that this is an appropriate amount of money for a large organization to pay for a total fraud, and wasting the court's time, it is also true that it is extremely unlikely that that handful of photographs could possibly fetch that much money. It therefore amounts to a windfall for the photographer, and I would be much happier if something more than willful infringement were required to be proven for this amount of money damages. Particularly when a large entity has been aggreived by an individual in a minor way, the amounts of money are all out of proportion.

    The only way I can see to get proportionality in these cases is to require more speech...what if AFP were required to carry an accurate story about its misdeeds and have its paying customers give it equal prominence as the original pictures, and paying huge contempt fines if it did not?

     

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    JEDIDIAH, Nov 22nd, 2013 @ 6:40pm

    The law draws a distinction (or at least it used to)

    The law originally drew sharp distinctions between swappers and profiteers. This distinction even made it into cracker culture. It used to be pretty much a universally BAD thing to SELL cracked wares. It was a line not to cross.

    It's not a bad distinction really. For commercial conduct and large corporate entities, significant fines are not a bad thing. The problem is when these get applied to individuals that aren't out for commercial gain.

    The problem with 1.5 million levied against a citizen is that it's a number that no one will understand and can can never possibly be paid. It's an absurdity that can do nothing but create some kind of scofflaw. It's too unreal to discourage anyone else.

    1.5 million levied against a media corporation is just enough to make them take notice.

    The jury could easily have labeled it "punitive" damages rather than "statutory".

     

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    Anonymous Coward, Nov 22nd, 2013 @ 6:50pm

    Re: See? Copyright works for the people! Forbid it to corporations!

    "See? Copyright works for the people! Forbid it to corporations!"

    If corporations were forbidden to have copyright then there would be NO case against Megaupload by the corporations as they wouldn't have any copyright infringed. And if a person did bring a case against Megaupload for copyright infringement instead of a corporation then its doubtful that the company would have been shutdown and Dotcoms assets seized and frozen and for Dotcom facing extradition instead. Still insist of corporations being forbidden to have copyright now or will now jump the fence and insist that corporations should have copyright so that they can have a case against Megaupload.

     

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    Anonymous Coward, Nov 22nd, 2013 @ 6:53pm

    Re: Re: See? Copyright works for the people! Forbid it to corporations!

    Should have read - Do you still insist of corporations being forbidden to have copyright now or will you now jump the fence and insist that corporations should have copyright so that they can have a case against Megaupload.

     

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    Dreddsnik, Nov 22nd, 2013 @ 6:56pm

    "And even if AFP's conduct was and remained egregious throughout this whole ordeal, it seems insane to argue that $1.2 million is a reasonable award for sharing 8 newsworthy photos. The statutory damages provisions of US copyright law are way out of whack with reality, and this case is just the latest in a long line of examples."

    While I agree completely in this .. the laws won't change unless they impact the wealthy people who were behind crafting them in the first place. Some 'unintended consequences' may be incentive for them to say 'ooops, we never meant for that to happen to US !' A few more of these little 'oopsies' and perhaps they will think their cunning plan through a little bit more thoroughly.

     

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    That One Guy (profile), Nov 22nd, 2013 @ 7:03pm

    Going to have to disagree here

    This is one of the rare instances when extremely high penalties make sense, for a couple of reasons.

    1) The works being fraudulently claimed/used were being used for large-scale commercial gain, which is supposedly the whole purpose behind setting such insanely high statutory rates.

    If nothing else a fine like this might make other companies take notice and hesitate before doing similar, whereas they would have ignored any smaller rulings.

    Heck, if enough companies get hit by fines like this, you might have enough incentive for them to re-visit the statutory rates, which could be very good indeed.

    2) A lower fine would hardly act as a deterrent. A fine of a couple thousand, to a large company, is inconsequential, whereas the costs to go to court can get quite expensive. So if you had a minor fine, companies would feel free to pull stuff like this, as creators would know that they'd at mostly likely break even should they win, making them less likely to want to fight.

    3) It's abundantly clear that AFP was acting in bad faith here, where they screwed up ownership of the copyright, were told they got it wrong, and rather than do the reasonable thing of backing down, filed a lawsuit against the rightful copyright owner in an attempt to shut them up and force them to drop it.

    Now you could probably make a good argument that such would be better handled via punitive damages, rather than copyright infringement fines, and I'd probably agree there, but in so many of these cases it's all but impossible to prove bad faith('we made a mistake', 'it was the computer's fault'), so having a case where the penalties of copyright are applied to a company for once will hopefully set a nice precedent that the law is indeed to be applied evenly.

     

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    Anonymous Coward, Nov 22nd, 2013 @ 7:22pm

    The jury doesn't award attorney's fees, the judge has the optional discretion to award fees and other costs to the prevailing party. While it's discretionary, parties that are found to be willfully violating are almost always hit with fees too, especially when they should know better, as here.

    Given the nature of the case and the verdict, it would not surprise me if the judge asked for briefs on the fees and costs. If not, Morel's people will be filing for a motion for fees immediately.

     

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    Stephan Kinsella, Nov 22nd, 2013 @ 7:24pm

    Nothing reasonable about it

    "Morel, reasonably, wasn't happy about this" -- I don't see what's reasonable about this at all. If you make information public, you have no right to complain if others use it.

     

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    Anonymous Coward, Nov 22nd, 2013 @ 7:42pm

    Re: Nothing reasonable about it

    They didn't simply "use it."

     

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    btrussell (profile), Nov 22nd, 2013 @ 7:53pm

    Re: Agreeing to disagree

    Yes and use cash flow, not income, as a base to see what they will feel.

     

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    Anonymous Coward, Nov 22nd, 2013 @ 8:14pm

    Agence France-Presse is not a small business with allegedly 2.6 thousand employees, with around 1.3 thousand journalists.

    https://www.google.com/finance?cid=3976118
    http://www.hoovers.com/company-information/cs/ company-profile.Agence_France-Presse.9a4443118f2a0615.html

    I think they got off light on the statutory damages which are meant to create the sense of pain, but are not useful because they are not based on a percentage of the income, they are fixed thus being horrible for anybody below a certain threshold and laughable beyond that, those statutory damages don't and never will be equal or just they are designed to be crushing for low income and a laugh for high incomes.

    If the intent is to punish and nothing else the value doesn't matter only the amount of pain that can be inflicted and that is best served as a percentage of income or market value, than it wouldn't matter what size the bank account is the pain would be equal for everyone.

     

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    Anonymous Coward, Nov 22nd, 2013 @ 8:22pm

    Re: Re: Agreeing to disagree

    [devils advocate]
    That would be unfair to higher income brackets, since it would discourage the filling of processes against low income targets that wouldn't even recoup the value of the fillings.
    [\devils advocate]

     

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  18.  
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    Anonymous Coward, Nov 22nd, 2013 @ 8:24pm

    So what happened to this Lisandro Suero dude who claimed they were his pics?

     

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    Anonymous Coward, Nov 22nd, 2013 @ 9:07pm

    Damn it

    I wish they used mine.

    :(

     

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    kenichi tanaka (profile), Nov 22nd, 2013 @ 9:48pm

    I agree with the court in the damages that were awarded. Personally, I think Mike has it wrong in that he finds the awarded $1.2 million to be out of whack. The court has definitely sent a message to commercial entities that stealing images that were obviously created by the original photographer, and then turning around and suing that photographer after they credited a different person for that image, is exactly the response that the courts should have sent.

    When we're constantly seeing entertainment companies suing filesharing for downloading a long and ending up with such disastrous judgments ($220,000, $1.2 million and so on) ... this definitely sends a message to these commercial companies that they are also liable for stealing the intellectual property rights of individual citizens.

    The jury got it right and they sent AFP and Getty a message.

     

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    That One Guy (profile), Nov 22nd, 2013 @ 10:24pm

    Re: Re: Nothing reasonable about it

    Come now, 'use', 'claim ownership over, commercially exploit, and sue the actual photographer over', same thing right? /s

     

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    Anonymous Coward, Nov 22nd, 2013 @ 11:12pm

    Re: Going to have to disagree here

    "Hoist on their own petard," says I, and I'd 'a' been fine with a higher hoisting.

     

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    KJ (profile), Nov 23rd, 2013 @ 2:31am

    Re: Re: Re: Agreeing to disagree

    ... and the problem with that is?

     

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    Karl (profile), Nov 23rd, 2013 @ 2:32am

    Re: Nothing reasonable about it

    If you make information public, you have no right to complain if others use it.

    As the AC said, they did more than just "use" it. They expropriated it. They were claiming that they held the exclusive license to the photographs, and sued the photographer when he dared complain. (Do you have any doubt that AFP/Getty would have sued for infringement if someone else had used the images without their permission?)

    In other words, it was more than just copyright infringement, it was copyfraud.

    If the large judgement was based on this, then I would have no problem with it. Unfortunately, in cases like these, the law makes no distinction between "copyfraud" and "infringement." And when it does in other cases - for instance, by claiming copyright over public domain works - copyfraud is punished lightly, if at all.

    The downside here is that people who infringe on copyrights without committing copyfraud are going to get punished just as harshly. And that is what is out of whack.

     

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  25.  
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    Anonymous Coward, Nov 23rd, 2013 @ 3:05am

    Re: Punitive Damages for willful abuse

    Use fines as the primary inspunishment instead of damages. That is the only way not to screw up goliath vs samson.

    With the current damages, if samson wins, he will get very rich regardless of the offence as long as the goliath is large enough. It is definitionally what encourage trolling in the first place. Goldrush in the courtrooms?

     

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    McGreed (profile), Nov 23rd, 2013 @ 3:06am

    Re: Re: Agreeing to disagree

    The problem is that with this you also agree with MPAA that if a person share a pirated CD, he should pay 100.000 $ in damage, and that is still insane, just to "teach everyone else". It's bullshit and doesn't work.

     

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    Not an Electronic Rodent (profile), Nov 23rd, 2013 @ 3:54am

    Re: Agreeing to disagree

    In my opinion, the purpose of such awards is to make well-funded organizations like AFP and Getty think twice about acting like the bandits that they are
    I'm in 3 minds about this one.
    On the one hand, Mike is right. $1.2M is a totally stupid amount to pay for infringement of 8 photos. There's no way they're worth even a tiny fraction of that and it seems stupid that the punishment far outweighs the value of the crime.
    On the other hand, as you say it's nice to see a corporate copyright bully hoist by their own petard and it ought to happen more.

    However, my third thought is that once again it highlights not so much the ridiculousness of statutory damages, but the bias of copyright law in favour of major corporations. Stupid though the award is, it's barely a slap on the wrist against how much Agence France is worth. There might be a stern note from the board, a couple of firings (probably with golden parachute) and they'll move on with little incentive not to screw the (asshole or not) little guy next time. On the other hand a similar judgement against a small firm, startup or (increasingly common) private individual and that's one or more entire lives ruined for little cause. "Justice" it seems doesn't come with means testing...

     

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    Coyne Tibbets (profile), Nov 23rd, 2013 @ 6:54am

    What a surprise

    Law applies to all, not just peons. News at 11.

     

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    Anonymous Coward, Nov 23rd, 2013 @ 7:51am

    Funny thing is ... it's entirely possible that Daniel Morel would have been ok with properly attributed use of his photos.

     

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    Anonymous Coward, Nov 23rd, 2013 @ 8:42am

    Well at least the lawyers made money.

     

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    Nick (profile), Nov 23rd, 2013 @ 9:11am

    Re: Re: Agreeing to disagree

    Yeah, great points. The court amount is an absurd amount, but anything less (and even this amount) would be mere pocket change for big corporations that stomp on little guys all the time. It's only through luck and through such blatant wrong-doing by AFP that the little guy won in this case. If even a few things changed, I wouldn't be surprised to see the fine reversed, in which case it's not a slap on the wrist, it's one ruined life.

    Why don't we make fines be based on a percent of an entity's worth? That way, the fine scales evenly no matter your means. This way you can't out-rich the rule of law if breaking a law still takes away half your possessions.

     

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    Anonymous Coward, Nov 23rd, 2013 @ 9:30am

    Re:

    Lisandro Suero continues to live in the Dominican Republic, which some folk think is punishment enough.

     

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    Eric Moore, Nov 23rd, 2013 @ 9:34am

    Getty did try and settle....

    Getty's attorneys tried settle with Morel. They argued to use a $275 DAY RATE as a baseline!!! So basically they wanted to pay him $275 or less!!!! As a professional photographer that's just insulting. My day rate is $2000 and I work mostly with local clients. Morel is a professional news freelancer and I can tell you that they earn much much more than $275 per day.

    Also AFP tried to claim it was a non-profit that was in the business of "helping" photographers (to their credit they do have a foundation) to try and mitigate the damages awarded. Ridiculous. AFP is either stupid or inept and Getty is just plain evil. I also hope that the original infringer Suero is sued and made to pay as well.

    AFP and Getty should have done their due diligence. They were very sloppy in regards to confirming original copyright. They didn't require the original image with the proper exif data. This should be a wake up call for stock agencies to make sure the proper copyright license is secured before they distribute images.

     

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    Anonymous Coward, Nov 23rd, 2013 @ 10:07am

    Re: See? Copyright works for the people! Forbid it to corporations!

    Typical little boy blue, ignore the gist of the article in a crass attempt to turn it into the same class war type screed he revels in. The question of if 1.2 million is a reasonable damage award for the willful infringement of 8 newsworthy photos has nothing at all to do with corporations. Nothing. At. All. But you don't want to discuss that question so you attempt to derail.

     

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    Anonymous Coward, Nov 23rd, 2013 @ 10:07am

    Re:

    Zero tolerance. _____ free zones. Ect ect ect.

     

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  36.  
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    Anonymous Coward, Nov 23rd, 2013 @ 10:09am

    Re: Agreeing to disagree

    You're mixing compensatory damages up with punitive damages. Damages in a copyright case are supposed to be compensatory.

     

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    Anonymous Coward, Nov 23rd, 2013 @ 10:12am

    Re: Re: Re: Agreeing to disagree

    While I don't personally think damages in a copyright case should be punitive, they should be based on harm done, I cannot say I agree with your assessment here. If the damages were punitive and the judge in the cases is just they would not set the same damages for an individual that copied a CD as they would for the AFP in this case. The fact that their means are different dictates the punitive damage should be different in a just system.

     

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    Anonymous Coward, Nov 23rd, 2013 @ 10:15am

    Re: Re: Re: Agreeing to disagree

    As long as we're talking punitive awards it seems like it would be much less fair for them to be equal for every income because higher incomes will be punished far less by the same nominal award.

    What you're really touching on here is a core problem with punitive awards going to defendants in the first place. They shouldn't. Defendants should only ever be compensated for their own losses, never awarded windfalls because the plaintiff needed to be taught a lesson. It's arbitrary and unjust no matter how the punitive awards are assessed.

     

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    Anonymous Coward, Nov 23rd, 2013 @ 10:18am

    Re: Re: Re: Re: Agreeing to disagree

    I mixed up plaintiff and defendant didn't I? Try to look past that inept swap dear reader...

     

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    Anonymous Coward, Nov 23rd, 2013 @ 10:19am

    Re:

    I think you're overestimating the frequency with which the reversal is pulled of successfully and the size of the award relative to the bankroll of the loser.

     

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    Richard (profile), Nov 23rd, 2013 @ 11:35am

    Re: Re: Re: Re: Agreeing to disagree

    Punitive damages are fine - if they are related to ability to pay. Getty/AFP can probably pay $1.2 million more easily than an ordinary person can pay $1000.

     

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  42.  
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    Anonymous Coward, Nov 23rd, 2013 @ 2:01pm

    Re: Re: Re: Agreeing to disagree

    iirc, AFP sued Morel.
    Sort of makes it not apples to oranges

     

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    Anonymous Coward, Nov 23rd, 2013 @ 2:07pm

    Internet etiquete

    Give credit were credit is due, if a creater creates something give the creator credit for creating it........NOT USE YOUR BOIS TO GO RACKET 1.2M FROM THEM

     

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    Anonymous Coward, Nov 23rd, 2013 @ 2:54pm

    Re: Re: Re: Re: Agreeing to disagree

    Another view is that it could be seen as a natural limit to the system a self balancing mechanism since only after a certain threshold there would be any real interest in going after someone, which means ambulance chasers wouldn't go after the more vulnerable parcel of the population only those who could afford the law.

     

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    CorporateHeadquarters (profile), Nov 23rd, 2013 @ 3:12pm

    Corporate Copyright

    Nov 23. The US Constitution seeks to provide Copyright to an Author. An Author is a person. It is clear that Corporations are people too - As President A. Lincoln said: "A Government of the People, by the People and for the People."

    Starting in 2014 not only should only actual Corporate People be qualified to register an original work an an Author and Copyright owner, no Corporation ought to be allowed to be sued at all, ever in American. A lawsuit is so disrespectful to American Corporations. After all Corporations, especially Big Corporations are in charge here in America, so it just not fair. Sure Corporations are allowed now to finance government elections.

    Finances as we all know are speech, clear and simple. To really be fair, and take back the America we love as envisioned by our founding fathers, Corporations ought to be allowed to seek political office, run for elections and get their Corporate names printed on our ballots. It is amazing that in this day and age some African American has been elected US President twice - but still, NO Corporation has been elected President. That is unfair and outrageous.

    If a Corporation got elected to be US President, along with a bunch of Corporations getting elected to the US Senate and House of Representatives, then smart stuff like replacing the US Post Office with UPS and FedEx would happen a lot faster.

    If Corporations got elected that would solve campaign finance reform too, cuz Corporations got the money already and do not need fund raising events with fat cat campaign money guys.

    This is such a good idea we will start up a grass roots, people's initiative to get Corporations elected to city councils and state governments along with national office. The truth of the matter is, if the American people just elect Corporations, America will get Big Government out of the way. See, way lower taxes, and way lower spending. That's the ticket. Stay tuned.

     

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    Anonymous Coward, Nov 23rd, 2013 @ 3:31pm

    Re: Corporate Copyright

    Already happened ... it's called the tea party

     

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  47.  
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    loaderboy (profile), Nov 23rd, 2013 @ 5:01pm

    Re: Re:

    They deserve Electro Convulsive Therapy?
    Perhaps you meant Et cetera.

     

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  48.  
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    Anonymous Coward, Nov 23rd, 2013 @ 5:07pm

    Re: Agreeing to disagree

    A copyright analog of punitive damages in tort cases.

     

    reply to this | link to this | view in thread ]

  49.  
    icon
    That One Guy (profile), Nov 23rd, 2013 @ 5:24pm

    Re: Corporate Copyright

    I'm pretty sure they do almost all of that already, they're just not quite so blatant about it most of the time.

     

    reply to this | link to this | view in thread ]

  50.  
    identicon
    Anonymous Coward, Nov 24th, 2013 @ 8:41am

    Re: The law draws a distinction (or at least it used to)

    "It's too unreal to discourage anyone else."

    This is what the MAFIAA and associated trolls always fail to realise.

     

    reply to this | link to this | view in thread ]

  51.  
    identicon
    Anonymous Coward, Nov 25th, 2013 @ 4:47am

    Re: What a surprise

    The numbers do not agree with you.
    This is one case - out of how many?

     

    reply to this | link to this | view in thread ]

  52.  
    icon
    lars626 (profile), Nov 25th, 2013 @ 6:56am

    Silver lining

    There is a silver lining to this cloud. If juries start awarding the maximum against corporate violators instead of high school students and housewives we may be able to get the maximum reduced to something more reasonable for first time offenders. I hope.

     

    reply to this | link to this | view in thread ]


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