Confused Law Professor Cites Fraudulent Prenda Win As 'Proof' That There's No Problem With Statutory Damages

from the uh-what dept

The good folks over at EFF have a good review of the House Judiciary Committee's recent hearing on the scope of fair use, which we discussed earlier. It's a good read, but there's one note towards the end which is really incredible. One of the panelists, June Besek, of Columbia University, has been defending ridiculous statutory damages by arguing not only are they reasonable, but also that courts can handle circumstances where the damages awards should be lower based on circumstances.

However, as EFF points out, Besek's argument here is suspect, given that she just a few weeks ago sent a letter on this issue in response to the Commerce Department's green paper on copyright, in which she defends current statutory damages practices... by pointing to a ruling in a Prenda case making a defendant pay $6,000. Specifically, her letter notes the following:
There is no satisfactory rationale at this time for singling out individual file-sharers with regard to statutory damages. The majority of reported cases against individual file-sharers have been resolved on summary judgment or on default, with the statutory damage awards under $10,000.
And after the $10,000 is a footnote, where she points to three cases where courts granted awards of ~$6,000, including AF Holdings v. Bossard. You might recognize the name AF Holdings, better known as the shell company set up by Prenda Law which has been accused by multiple courts of being engaged in forgery and fraud in shaking down people into paying up. This seems like an odd choice for Besek to choose to support her position that statutory damages are not a problem, given that Prenda/AF Holdings has been using the threat of statutory damages on its bogus copyright claims to shake down millions of dollars from people without ever going to court.

In fact, the AF Holdings/Prenda fiasco is a perfect example of why statutory damages are so dangerous. They allow a new category of copyright trolls to go around sending out threat letters threatening the possibility of $150,000 awards, which lead many, many people to just pay up rather than go to court. For Professor Besek to use Prenda/AF Holdings as an example of how the system is working, at the very same time that the folks behind it are facing sanctions from multiple courts, have been referred to law enforcement and multiple local bars for discipline for their fraudulent actions, which were almost entirely predicated on using the threat of crazy statutory damages to make people cough up thousands of dollars is laughable.

And, it's not like Professor Besek used this example back when there was still some uncertainty about Prenda. She used in just a couple weeks ago, months after multiple courts had outlined the fraud AF Holdings was involved in. The fact that she would use that as an example of statutory damages working as intended suggests she is either ridiculously uninformed or dangerously confused about how statutory damages are used in practice.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    John Cressman, Jan 31st, 2014 @ 5:52am

    Those who can...

    The old saying seems to be true... The who can... do. Those who can't... teach.

    Of course, I'm a teacher. But I also practice my trade as well. It's the only way to stay sharp.

     

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

  2.  
    icon
    That Anonymous Coward (profile), Jan 31st, 2014 @ 5:55am

    Those who can't... Teach.

    I guess reading the coverage of all of these cases was much to difficult a task to manage, but had the effort been made she would not look like an out of touch idiot.

    Unless you goal is to show how fing broken the copyright system is, Pretenda is NOT A GOOD EXAMPLE.

    This was her best shot at finding good poster children, talk about phoning it in.

     

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

  3.  
    icon
    That Anonymous Coward (profile), Jan 31st, 2014 @ 5:55am

    Re: Those who can...

    jinx you owe me a coke.

     

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

  4.  
    icon
    That Anonymous Coward (profile), Jan 31st, 2014 @ 5:59am

    Re:

    Well she can;t be that out of touch, she's on the Twitters...
    with 1 tweet.

     

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

  5.  
    icon
    scotts13 (profile), Jan 31st, 2014 @ 6:04am

    I'll go with ridiculously uninformed!

    Probably along the lines of an order to a staffer: "Find me a case where..." You can't expect important people like that to do (or understand, or vett) their own research.

     

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

  6.  
    icon
    That Anonymous Coward (profile), Jan 31st, 2014 @ 6:07am

    Re: I'll go with ridiculously uninformed!

    and forgot the most important part...
    "and make sure it doesn't make me look foolish."

     

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

  7.  
    icon
    That One Guy (profile), Jan 31st, 2014 @ 6:08am

    Re: Those who can...

    I thought it was 'Those who can do, those who can't troll', or is that just the internet version of that saying?

     

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

  8. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Jan 31st, 2014 @ 6:34am

    Holy crap, Mike! You lurched into an actual GOOD RELEVANT PIECE involving Prenda!

    Of course the problem with Prenda is not copyright as such but fraud by lawyers.

    For the record, I've always wanted the Prenda lawyers hanged, but wasn't specific to their actions, just on the near certainty that all lawyers should be hanged for past crimes (which are usually unknown because their gang hides and okays the crimes). However, for Prenda's specific known crimes, they're not getting punished near enough for besmirching the good of copyright with their fraud.

    In honor of Mike actually making this Prenda item good and relevant -- which I though impossible, let alone for him -- I forego my Prenda tagline, but admit it's also to raise doubt as to wherther I'm THE out_of_the_blue...

     

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

  9.  
    icon
    Rikuo (profile), Jan 31st, 2014 @ 6:46am

    Re: Holy crap, Mike! You lurched into an actual GOOD RELEVANT PIECE involving Prenda!

    I'm sure Mike feels sooooo thrilled you did without a tagline. Absolutely ecstatic.

     

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

  10.  
    icon
    That Anonymous Coward (profile), Jan 31st, 2014 @ 6:50am

    Re: Holy crap, Mike! You lurched into an actual GOOD RELEVANT PIECE involving Prenda!

    Oh pookie, never change.
    If not for the opportunities allowed by copyright law, the fraud would have never happened.

    Copyright as it stands allows someone to register something, not have to market it at all, have it get shared, and they stand to collect $150K. (or settlements well in excess of that number with no one the wiser).

    It is turning movies so bad Netflix pays you to watch them into financial blockbusters.

    Copyright has a place in the world, but not in its current form. It requires updating and adjustment to reality, rather than being the thing of dreams of being rich.

     

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

  11.  
    identicon
    Anonymous Coward, Jan 31st, 2014 @ 6:51am

    Maybe Professor June Besek is hoping to start a lucrative career on the side -- an academic who spews such nonsense becomes an obvious candidate for court "EXPERT WITNESS" jobs, whose hourly pay would make any lawyer green with envy.

     

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

  12.  
    identicon
    Anonymous Coward, Jan 31st, 2014 @ 6:53am

    I nominate this guy for the asshole of the week.

     

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

  13.  
    icon
    That Anonymous Coward (profile), Jan 31st, 2014 @ 6:54am

    Re:

    because opposing and pissing off the copyright aware online has such a great history of working out well for those who do it.

     

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

  14.  
    identicon
    mcinsand, Jan 31st, 2014 @ 7:11am

    Re: Those who can...

    I can't help but wonder how the converse works, since I had a family member that could do anything that he set his mind to... except teach.

     

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

  15.  
    identicon
    Rich, Jan 31st, 2014 @ 7:54am

    Re: Holy crap, Mike! You lurched into an actual GOOD RELEVANT PIECE involving Prenda!

    My TO-DO List:

    1. Go to Techdirt website.
    2. Click refresh until a new article appears.
    3. Post nonsensical rant.
    4. Go to #2.

     

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

  16.  
    identicon
    Anonymous Coward, Jan 31st, 2014 @ 8:47am

    if a law professor gets confused (damn fool hasn't got much of a clue, by the sounds of it. would be better to keep quiet and her head down!), what hope is there for us mere mortals?

     

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

  17.  
    identicon
    Another AC, Jan 31st, 2014 @ 9:51am

    Re: Those who can...

    I believe it's "Those who can, do. Those who can't, teach. Those who can't teach, teach Gym class."

    You aren't a Phys. Ed. Teacher per chance, are you? :)

     

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

  18.  
    icon
    Ninja (profile), Jan 31st, 2014 @ 9:54am

    Aaand she graduated on Prenda University, right?

     

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

  19.  
    identicon
    Anonymous Coward, Jan 31st, 2014 @ 11:27am

    This needs to be thoroghly mocked...

    Someone should write a really satirical piece defending her position with lots of bad references to as many notoriously bad cases as they can possibly find drawing all the wrong conclusions from those cases.

     

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

  20.  
    identicon
    Lurker Keith, Jan 31st, 2014 @ 12:15pm

    Re: This needs to be thoroghly mocked...

    That runs the danger of the **AAs running w/ it as real.

    Poe's Law: they won't be able to tell it's satire.

     

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

  21.  
    identicon
    Michael Rosenstein, Feb 9th, 2014 @ 3:03am

    Great article

    This is a great article thanks!!

     

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


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