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.