Damages Possible, But Limited, For Bogus DMCA Takedowns

from the good-and-bad dept

We had discussed earlier this year just how damages should be figured out (and if they should be available at all) for bogus DMCA takedowns. The law, technically, says that there can be punishment, but it’s rare to see a case ever get that far. In the ongoing Lenz v. Universal Music, however, (about the video takedown of a child dancing to less than 30 seconds of a Prince song), the judge has ruled that damages are available, but at the same time limited how those damages might be calculated. So, there’s some good, in that filing bogus DMCA takedowns can lead to damages, but the amounts are likely to be so small in most cases as to be meaningless. Compare this, of course, with the statutory damages given to those who infringe on copyrights — starting at $750 for sharing a single item and going way up from there. How is that equitable? Basically, the incentive is quite strong for copyright holders to continue to file DMCA’s willy-nilly, knowing that the threat of errors is mostly minimal, even as the impact is to silence one’s free speech — which should be seen as a bigger issue than interfering with someone’s business model.

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Companies: universal music

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Comments on “Damages Possible, But Limited, For Bogus DMCA Takedowns”

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:) says:

Re: Re:

Is already a 2 strikes sort of.

If they send you a DMCA for the first time and you respond to it, they now right there and then that you could be given statutory damages for false claims if a second one is issued on the same material.

So if you get more then one you can haz your statutory damages although it will not be much.

In the case of the dancing baby they got only the attorney fees because the mother didn’t respond or didn’t get a second DMCA, so she couldn’t prove they were in bad faith, but if you get more then one and you have responded it to it, or if they send more then one in rapid succession there is a good chance that malice can be proven.

Anonymous Coward says:

Well, the typical rate to have a song created as a “work for hire” hovers around $500 a minute of completed work, plus or minus a little.

Even a true musician, with instruments, can get time at a professional studio for at most, around $150 an hour.

Hell, I imagine a band could probably record at Abbey Road for the cost of a plane ticket.

If the law allows for $222,000 per P2P offense, as what was prescribed in the Jammie Thomas Case, you are forced to look at it from the perspective of what the value the rights holder sees.

A work-for-hire can be purchased for about 10% of what current case law (Capitol v. Thomas 06cv1497) allows. If Thomas was looking to profit financially or personally from sharing musical recordings her income from such efforts would have exceeded

If you could hire a muso and have them make a song for you on your birthday, I bet that would be the best gift you’ll ever receive, and it would be at most $500 per minute. But they would do it for their fans, and not necessarily for profit.

NOTE: After Michael Jackson’s untimely death, AEG, who is also the financial backer of Prince and NPG Records, was also kind enough to offer “souvenir tickets to fans of the singer who waived refunds of the ticket price.”

If you don’t think the whole industry needs to change with the times, you’re wrong.

iTunes sold their 10,000,000,000 song last week, and it happened to be a Johnny Cash song. But consider listening to the heavily sampled “The Continuance” by Jonathan Elias.

Catherine jennifer fusco (profile) says:

publishers used UNpublished[copyright] cover-design,for,

a same subject book,written by an author whose book is an expose’ “Just Tip Me Mister!”[letters.mobile.salon.com]by Cecilia Sacco Fusco..”Harper Collins” published a foul book,from a 24 yr old novice,male,a most “forgetable book” unlike the 1st book written on the subject..this book depicts idiotic laughter concerning the business of the “servitude”..it was published,by HarperCollins,while they stated over the phone,”oh,well,he didn’t know the author”[ shocking,remark from publisher responsible for such smut!]anyone who knows anything re:copyrights knows you “don’t have to “know” the person you’re stealing from..this was an insult beyond reasoning! To see “your” cover-design,taken for another book that goes against the very importance of the original book’s subject matter..wasn’t it a revamp,as to just how much one can “use an idea?” If it’s ok to “not” be considered “Taking an idea”,but making the idea,untrue,to the subject matter,is another issue..the book is a true account of a woman who at 26yrs,already owned her own new home,a woman who supported her daughter alone,in a time when women held on their husband’s paycheck for fear of going to work! Any story must have a “reason for” a “fight” so to speak,the book depics a waitress,having lifted heavy trays,in a popular L.I. seafood house.This author is not new to the circut as many have tried to steal her work,her idea,was not just an idea,a silly..wake up in the morning,telling oneself “I think I’ll use that idea,for my own,thus imagining themselves a professional author,as many do” “The expression “somebody should write about this business” wasn’t just a flimsy story about jokes between customer&waitress/waiter,rather the interactions,were sometimes funny,one couldn’t make up what things occured there! The male who wrote his “idea” of what behind the scenes were,did not tell a story,rather,alerting the reader to the foul language,the ethnic slurs etc..How would anyone feel if they were the 1st to write ,what has been a “stigma” to the mentality,of many..to see your book continue to be unpublish[not rejected!]Author was on “Donohue”thus many waitresses wrote in wanting to buy it! Still how could they,there were only 500 copies..the printer,who stole her copyright,had gone to L.A…pitched the idea to NBC..thus a sitcome was born “It’s A Living”[you see,the printer did indeed meet w/ the producers,[mid 80’s]we[my mother[author,& I am her daughter] suspected the dialog would follow,BUT author’s att’y told us to watch& listen! The character’s were all composites of her[staffers],the waitresses were clad in their fancy[sexy] little black dresses,holding “bar trays!” not lifting heavy trays..this was a shock to both of us..the jokes were mundane,complete mockery of the book! The att’y alerted that we call the producers,asking them “where did you get this idea?”[this sudden interest in a subject matter,otherwise ignored until now?]She listened while he said “what makes you think we got the idea from your book?” She told him,her printer was going to L.A. to meet w/ producers,that it would be a surprise[?} She told him,”I was just interested to know where & who gave you this idea..because the printer indeed was in L.A.! Well,after that we never knew what he told the printer,he may have been told off…the producers,while not aware of the true author,[how could that have happened,the book had her picture on it,the printer must have told them she gave up her rights,what-ever he said couldn’t have been legit,nor were the NBC producers,because if they didn’t see the book’s author,if they just played dumb..how in the hell didn’t they know..why did they not contact her? The show,a mess,as suddenly as it aired,suddenly was “cancelled!”,why,well,does one need to ask..they must have had the complete dialog,[the att’t suspected the same] we wanted to sue the printer,but att’y said “it will cost too much”[this was in the mid 80’s,BUT today no court would have accepted such a lie!..I think,in those days my mother must have seen that lawsuit as a big thing,but looking back we should have! Att’y told printer,to return all her books,or he would face a lawsuit..Inside the book was “his copyright!” the arrogance to have his printer’s name as coptright by…was quickly stamped w/ her copyright!We had to “white-out” his “graphic’s name”,all,over 700[approx]! So why wasn’t the book just printed by-Harper Collins,TAKEN off the shelves?? How can any publishing house dare to take another cover,then say “he didn’t know the author..Then said “oh,you’re [not,published[instead of using the word UN-Published] which makes no copyright difference..!The 2 covers were sebt to an att’y[the son of the lawyer my mother once had] he had the nerve to say “I can’t do anything”[?} I thought to myself,wonder if he knows Harper Collins,because these publishers,editors do not know where their loyalties are..”what is loyalty”..what kind of cowardly behavior is this? “Excuse me,but since “I” am an Italian..people think we all love each other..NOT TRUE..many are jealous of their own kind,whereas the jewish people’s family ties are really “loyal!” to one another! I’m sorry but had this att’y been a Jewish man..they’re not afraid to persue an injustice,the Italians shouldn’t be in any literary positions..I mean they’re not illiterate,no..I mean,we-are the “Renaissance” remember,we invented the word? So,where does an author go to get attention for her her expose’? Does she continue to watch other’s attain such wealth,recognition,while they make a mockery of a profession too long ignored,where would these hungry people be without the servitude? This book does not go near the political issues,as to what the government pays them,however they are getting screwed,one should admit..this notion that they “make-up” it up w/ TIPS is riduculous..they’re working to make up minimum wage??Really?You see,my mother doesn’t use the computer,nor does she know each time I write about her book,& the continued attention I have fought for[fighting for still]..her intro? I would print it,but after reading about all this stealing,I dare not..the author doesn’t need any critic’s idea of what he/she thinks,afterall did they ever wait tables? No,the book’s author has a way w/ the written word,she was told by a famous publisher,she also had an article in “Cosmopolitan Mag”many other tv shows! We have the tapes..that will be the day when anyone attempts to write about this subject..it has already been said,in a big way..it is a “sleeper”..no need for the “Oprah” debacle,issue where she “took down”[not really] Nan Talese,the James Frey[is back] mess,his lie,the cluttered mind of Win-Free..who had the nerve not to explore the background of the book’s so called rehab..thing,he never went through,at all,an insult to all who really detox,going through pain,etc..”O” should have catorgorized it herself,she devoid of any intellectual deapth,it is obvious she’s no litereary scholar..I left a message for her {XM Radio] just to ask that she read the book…SHE IGNORED MY CALL..then again how could she relate to a woman who supported her daughter alone,having worked for all the finer things,,miss “O” never sat at the back of the bus,instead “Just Tip Me Mister!” is still sitting at the-back-of-the-bus!Spiritually speaking..”O” is a fraud,just read her last page of “O” MAG..she almost illiterate! She said things like “It WON’T take long to read..[re: her take on a book} things like..when you go to Wash,you’ll see the landmarks,that will remind you of the book”WHAT??? I say..IDLE WOMEN who see her,as need her as their IDOL,must be in need..period,to actually wait for “her” book of the month? I could just [not] imagine my mother looking up to the likes of “oprah”..Her guests are big,not her! A real critic will remind readers to re-read the many classics already written,already said,like the locals she suggested we associate the book with! There are achives re: this exact issue,when she dismissed the old 1835 novel about the same thing..but it was too long,something “O” does not do,read long books! Does anyone really think she does all this alone??Where is her auto-bio? Her father wrote a book,she became livid!why??She’s sooo “guarded,but sooo overexposed at the same time?”..I’m sick of her “Oprah’s Favoite Things” “Everything Oprah” where a woman Robin O’Krantz,actually did all the things “O” did,all she bought,re: the 3 sweaters one should always have..can anyone imagine such twisted garbage? Then she say’s “now I’m a professional writer”she got a book deal{??} why? This woman went into a mini-hock” where she had bills all because she wanted to be “like,Oprah?” Her coffee cup even had an “O” on it!!What about speaking out about wildlife slaughter Palin interview,she condesended to that narcisisstic evil “Cruella DeVille”coined by “Defenders of Wildlife”,stop giving away kitchens..rather read a book when asked..She will not be the reason for the book being published but when it is I will tell everyone what she didn’t do..Also did you know “O” is arrogant..? yes she is,she told TMZ..”you could give me a chance to get out of the car”while they complimented[kissing her ass for their bucks] her,getting out of her limo she actually said that! TMZ replayed it over&over,to be sure[why,is it so unbelievable?] She was an arrogant bitch,her smiles each time she was given a compliment,was so phoney,one had to see it,to believe it!
Ok enough on this Lucky,who never thanked anyone for her fame..there WAS a MAN WHO DID..I am angry..see my mother would never write about “O”…I got carried away..When people no longer want to be served,perhaps the Waitress will be acknowledged for her hard work!..They have NEVER have been before read this book..there IS by law a Finder’s FEE for anyone who introduces this book & the author[whose story could become yet another book!}cjenn@ptd.net a copy of the book..call 1-570-828-1725 sorry,but there’s no law where I have to swallow the idoltry of a woman who could have given another a chance,this is a woman’s dream,perhaps “O” got so famous so fast she never learned humility,how can she represent any publishing,anything,she’s not a literate woman,re:what book is important..obviously she never suffered enough..
Please fo to letters.mobile.salon.com..more info re: this bbok..the “stealing”,of her cover..how could that be ignored..for now..

Catherine jennifer Morale/Fusco (profile) says:

"Just Tip Me Mister!" 1st [auto-bio] Expose' ;

This ended up as Tech-“Dirt” because the story was never told..YES!! there could have neen should have been— a BIG LAWSUIT against NBC had my [mother] the author contacted an intellegent knowledgable literay lawyer as the one she called tolf her it would be costly to get into that” but if we’re going to be honest we have to accept the facts that beinbg a Jewish attorney would have come out swinging for justice rather a coward was the last thing we needed wasn’t he aware of this Literary rip off by producers the attention it would have gererated the attention it deserved? The injustice of these smug producers whose defense would have been pathetic to think they didn’t know” They were just habed a book the printer told them..what? didn’t you see the authors photo?Didn’t you read her introduction it is she who is telling her story this is her book!Thier attempts at any defense would have been to no avail..you see the author called the producers at NBC..she was told they were out of the country UNTIL.. she was asked what is this in reference to?” It’s about my book..my where did you get the idea for this show?” he said “what makes you think we had anything to do that?” she explaimed my printer told me he was going to L.A. to show my book to tv producers he added “he had a surprize for me” [he said] {surprise not the word for this evil buch of greedy millionaires {who weren’t intersted in wehose photo & story this book belonged to?} They actually thought of themselves as the great untouchable producers against a mundane nobody author they never heard of but thought enough of her work to sreal it outright you mean they didn’t question this book or the printer & what did he tell them we’ll never know what steps they tookagainst the printer after the author aleted them that the book they were handed was & hiven to them by the said printer in answer to his question whwere did you get the idea the question was “where did “YOU”get thus idea this “sudden” idea.to introduce the waitress but not the comedy,parading around mascarading as anything but the legit-hard working waitresses rather joking,throwing cheap shots they called comedic while clad in their “little black dresses the high heels these lazy ass women hardly depicting the drama & realisism of manual labor..holding bar trays insteasd of the heavy tray service!the-revolving door who was waiting for water while another was waiting for bread while another’s meat was raw while the drink tab differed from the food tab while a good waitress must have an excellent memory all forgotten in the name of comedy the stigma having stated thus the producers /writers would use all the clever expressions,interactions {all true in the book] this author’s phraseology hasn’t been seen or realized in the literary world from any author to date then and now! This Top 10 Best Seller will remain on the List..Millions of waitreses waiters cooks..the servitude has never been written as it is seen through both the main characteras a woman and the waitress it has never been deoicted as the only business being the hardest most grueling not fior the delicarte secretary a waitress makes more money in one night to cover the secretaries week long oay..but the stigma still creeps up making it a poor joke waitresses like my mother saved every dime thus ownes more than many men do! She struggled w/ no help from welfare or amilony owning her own hine at age 26 everything she wanted,she attained but not through laughing & joking as there’s nothing funny about being this “Business” John Q.Public has seen nothing but lies & self- serving writers playing the part of the customer we’re subjected to insiopid actreses who swallows her words we’ve only seen this bisness through “thier” eyes & ears of inexperianced morions making millions like the actress??KAT DENNINGS A FAKE WHO KNOWS NOTHING ABOUT STRUGGLING OR ACTING! SHE INSULTS THE WAITRESS THEY DO NOT WEAR GAUDY NECKLACES NOR DO THEY DICTATE TO THEIR BOSS NO MATTER HOW GREASY THEY MAKE THIS SPOON This time they have gone too far I am asking all WAITRESSES WGO SAW THIS AUTHOR ON PHIL DONOHUE ORDERED BOOKS FROM ALL OVER CODA {500 copies] This has been CRUSHING to see others gain popularity & finacial security still after all thse yrs she will be publishing her own book as many are doing SELF PUBLISHUING LIKE JOHN GRISHAM PICKED UP A POPULAR PUBLISHING HOUSE HER copies remain but she is etiting her storyline not her phrases.. she will gain the long derseved recognition for her sugnature exopressions & unique phseology rarely seen from any author to date being first in a long line of lucky &/already known authors but her wit,her signature phrases” will again remind us of what genuine authors w/ talent used to offer the reader.. She has many copies left perhaps thse old ones will be collectors items as being the 1st copoy but her evisions are {now} are to give th raeder more of her of the character so one can relate to the “woman” The frredom to steal is not as easy their past brazen,literary crime would have needed more than an “I didn’t know defense” I didn’t know the book belonged to an author{?}what DID they do the printer after this happened?/their pathetic attempt at depsicting the watress was ready to aire –in–fact– the dialoge had already been copied!! and scheduled thus this rape- depiction was pushed back as to change the entire story —had we not called them..this book would have been published long ago [having never been rejected] would have NBC suddenly went on hiautus! They were obviuosly changing the stolen works from the author word for word you couldn’y make up this stuff as they say but these produces didn’t attempt to contact the author asking cAN WE WORK SOMETHINBG OUT EVEN AFTER THE PRINTER SHOWD HER BOOK JUST TO LEY YOIUY KNOW THE DEPRAVED LITERARY CRIME! SHE TOLD THEM “I am the author of “Just Tip Me Mister!’ I think we have a big problem {immoral insult to the literary world & laws governinmg such crimes had to invent as much uncreativity as their sitcome W/more “LIES” & UNcreative FROM LACK OF EXPERIENCE HAVING BEEN ON THE WRONG SIDE OF THE TABLE stolen without questioning the books origin? just accepted the word from a printer a grEedy,unscrupulous traitorous dihonorable crook {the mid 80’s} THIS mundane printer went to L.A. having presented her “Book” in it’s printed form cover,photo,etc introduction was the work of the author why would anyone want to hand over their book to their printer & what producer would have accepted “anything” as suspect as a book written by a woman who was obviuosly the author! After my mother realized her 500 copies were stamped w/ his company name!!we were both sick & shocked she was told to monitor the show so I watched it telling my mother “these women are composites of your characters!!” Didn’t your printer tell you he was going to L.A and didn’t he say “he had a surprize for you?” I have a surprize for you” it;s about a sitc..look at the waitreses cklad in little black dreses high heels what a mess! booksto the producers Coleman Graphics Company printed her book then stamped “his” copyrightbook an expose; written in 80 completed in 1979 copyright was takedn to her printer who presented her book in print to NBC producers of the idiotic,insipid sitcome to say they didn’t know the book’s copyright stamp was that of the printers would have made the court laugh anyone with knowledge re; stealing but not suspecting the book was not given to the printer as it was the lifesweork literary fly in today’s their narcisisstic smug ENTER: “It’s A Living” the author of Just Tip Me Mister!” written by Cecilia Sacco Fusco was the 1st & only book on the subject of the Servitude!SOON TO BE PUBLISHED IT JUST NEEDS TO BE PRINTED FROM THE BEGINNING BUT THIS BOOK WILL BE PUBLISHED..IT IS THE 1ST & CAN NVER BE DUPLICATED IT AS ALL TRUE THANK YOU I DO WAISH SHE HAD AN AGENT BUT THE COMANY SHE CJOSE IS ELF OUBLISHERS THE PEOPLE THERE ARE NOY LITERARY SCHOLARS NOR ARE THEY EXPERTS SO PERHAOPS HER BOOK WAS TOLD TO SOMEONE WHO MADE MIO=ONEY BY TELLING THEM HEY THERE’S THIS BOOK ABOUT WAIYTING WHY DON’;T YOIU DO A SIRCOME” IT’S POSSIBLE IT COULDN’T HAVE COME FROM NOWHERE OF COURSE HAD THE BOOK HBEEN AT THE bIGGER HOUSES IT WOULDN’Y HAVE THIS ISSUE AS I DON’T KNOW HERE THEY & WHAT THEY DO THESE BOOKS AFTER HEY READ THEM I WILL ASK HER..SHE MAKES COMMINSIONS UNLIKE THE AGENT WHOSE ADDED PUBLICITY IS THE MOST IMPORTANT BUT WHEN RANDOM HOUSE PICKES IT UP AND IT WILL OUR DAY HAS COME..REMEMEBRR THE BOOK WAS NOT CHABGED SHE JUST ADDED UOPDATED INFO RELATED TO WHO SHE IS..AND WAS NOT JUST AS THE WAITRESS BUT THE WOMAN BEHIND THE WAITRESS..cjenn@ptd.net I AM HER DAUGHTER NOTE: I am sick & Tired of seeing autors mascarading as authors like Thersa Guidice whose hubby & herself borders ion illiteracy both morally spiritually,& phycologically having accepted her hubby’s hatred for for her beautiful brother this narcisisstic spoiled brat emotionally immature having basjed Caroline in her book is that what we know a COOKBOOK TO BE? a series of JABS? only explains she cannot do it any other way what lefit opublsig house would practice such low class nonethical permissions for this mundane boring money making slob who never worked a day in her sorry life! is able to produce such nonsensical tripe!Is this what we remember and know..to be a legit “COOKBOOK? THERESA GUIDICE “COOKED” UP CRUELTY narcisstic jargon cluess brainless jealousy the perfect example of one who is usually called “NUVA-RICHE” from her decore to her spending money as if the word HUMILITY was mispelled LIKENED TO A RAG PUB HOUSE! NO DOUBT this pathetic desperate attempt at having made a “Name for herself” BEING ANOTHER REALITY SLOB– THIS RAG HOUSE CATERD TO HER WHIMS SHOWING PROVING HER AS THE PHONEY SHE WAS FROM THE BEGINNING THIS “COOKBOOK” NONDEPICTION IN ANY LITERY SENSE MAKES NO SENSE BUT MADE BUCKS FOR THE “INQUIRER”{ING} MINDS” FOR THAT ALONE SHE’S MADE MONEY BUT LITERARY??SKILLS? SHE’S NOT AN HONORABLE SICILIAN NOR IS HER THOU DOST TOO MUCH” PREOCCUPATION W/ THE WORD “FAMILY”.. DISHONORABLE NO DOUBT WAS THE DORMANT PERSONA ALl THE TIME!MONEY HUNGRY IDIOT ENABLED BY THESE PUBLISHERS HER MORAL APPTITUDE IS DEVOID OF INTELLECTUAL DEPTH HER DAUGHTER IS BEING EMTIONALLY ABUSED BY GUIDICES SELF SERVING BETRATAL OF HER BRITHER & SISTE-IN-LAW NOW CAROLINE?SHE CANNOT FINISH A SENTENCE BUT WROTE A COOKBOOk WHICH Is DIFFICULT!It HAUNTS ME AS MUCH AS THE “GHOST WRITER” WHO HAD TO TRANSLATED HER DORECTIONS!! Taking stabs at people in a book while they catorgorized it as a “COOKNBOOK?” THIS IS THE INJUSTICE I SPEAK OF!UNKNOWNS OR UNPUBLISHED DOES NOT MEAN A BOOk WAS POORLY WRITTEN..LOOK AT THE UNKNOWN REALITY SLOB WHO IS DEVOID OF TALENT WHILE THE IMPORTANCE OF AN EXPOSE” LIKE “JUST TIP ME MISTER!”HAS WAITED TOO LONG,FOR JOHN Q.PUBLIC..A “”SLEEPER”” AND SOON ON “AMAZON!’ ALl UT NEEDS IS A PUBLISHING HOUSE TO PICK IT UP LIKE JOHN GRISHAM & ALL THE OTHER LESS INTERESTING BOOKS AFTER IT GOES THROUGH THE FIRST INTRODUCTION..IT WILL BE IN ITALIAN,SPANISH.FRENCH,& MANY MORE AFTERALL;DOESN’T THE SERVITUDE EXSISTS ALL OVER THE WORLD! JOGNNY DEPP’s MOM WAS A WAITRESS WOULDN’T HE JUST LOVE TO READ THIS BOOk..?PERHAPS PUBLISH IT HIMSELF!?

E (profile) says:


I have received a number of false DMCA accusations from a major entertainment corporation recently. I have now received my third in two weeks which are completely baseless. I’d never have the guts to take them to court or time but I wish there was a way Google or someone else could see this and take some kind of TOS action. Its now bordering on harassment.

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