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US Copyright Law, King Lear, and Jammie Thomas-Rasset
Sunday, June 21 2009 @ 02:08 PM EDT

I was goofing off, looking up some information on Wikipedia on King Lear, and here's what struck me. If the current US Copyright Law had been in effect over Shakespeare, I think he could have been sued by many authors for copyright infringement for writing that masterpiece.

Count how many lawsuits there could have been just for King Lear alone:
Shakespeare's play is based on various accounts of the semi-legendary Celtic mythological figure Lear/Lir. Shakespeare's most important source is thought to be the second edition of The Chronicles of England, Scotlande, and Irelande by Raphael Holinshed, published in 1587. Holinshed himself found the story in the earlier Historia Regum Britanniae by Geoffrey of Monmouth, which was written in the 12th century. Edmund Spenser's The Faerie Queene, published 1590, also contains a character named Cordelia, who also dies from hanging, as in King Lear.

Other possible sources are A Mirror for Magistrates (1574), by John Higgins; The Malcontent (1604), by John Marston; The London Prodigal (1605); Arcadia (1580-1590), by Sir Philip Sidney, from which Shakespeare took the main outline of the Gloucester subplot; Montaigne's Essays, which were translated into English by John Florio in 1603; An Historical Description of Iland of Britaine, by William Harrison; Remaines Concerning Britaine, by William Camden (1606); Albion's England, by William Warner, (1589); and A Declaration of egregious Popish Impostures, by Samuel Harsnett (1603), which provided some of the language used by Edgar while he feigns madness. King Lear is also a literary variant of a common fairy tale, in which a father rejects his youngest daughter for a statement of her love that does not please him.[5]

The source of the subplot involving Gloucester, Edgar, and Edmund is a tale in Philip Sidney's Countess of Pembroke's Arcadia, with a blind Paphlagonian king and his two sons, Leonatus and Plexitrus.[6]

How many lawsuits do you see? At least a half dozen? I even see some methods and concepts claims, if we view it with modern copyright owner eyes. Remember J.K. Rowling's litigation over methods and concepts that Darl McBride and Chris Sontag cited? I suppose he could have raised a transformational fair use claim. But what if he accessed the prior works in digital format? Does fair use exist there? Or maybe they'd have been DRM'd. He'd maybe then never have read them.

Of course, what really would have happened is there never would have been a King Lear written. It would have been too legally risky. You can go to jail for copyright infringement, after all, even if you are noncommercial, if you distribute a DVD, and if we are imagining, let's imagine Shakespeare did that. Shakespeare wasn't even noncommercial. And there are criminal sanctions under regular Copyright Law, too.

If Shakespeare had plenty of money, he could have contacted all the copyright owners and paid them whatever they asked, but if he didn't have enough money, the result would have been he would have been unable to afford to write King Lear. Do we want a world where Shakespeare can only write King Lear if he has money? If you think I exaggerate, remember what happened to internet radio? And if one song is worth $80,000, is the sky not the limit, if you are a copyright owner and hold all the legal cards and can get Congress to keep upping the ante to suit you?

Incidentally, has anyone done a study to see how many songs in the history of the world earned $80,000 for their authors?

If King Lear had been written anyway, despite the odds, Shakespeare could have been sued for copyright infringement, one case after another, and his reputation would have been ruined, probably being branded a willful copyright infringer instead of an artistic genius, which he was, willfulness being assumed under the law, a rebuttable presumption, and he'd have likely faced damages equivalent to a lifetime of indentured servitude.

That's what Jammie Thomas-Rasset is now, as I see it, locked into indentured servitude for the rest of her natural life. I guess you could call it slavery, actually, as she has no hope of paying off that debt. She is the RIAA's slave for life. If she writes a book, they'll get the money. If she gets a job, they can garnish her wages. No matter what she tries to earn, how can she pay off a debt of this magnitude? And yet, it's perfectly legal under the law. The jury followed the law as written. Ironically, unless Hollywood makes a hit movie about her, and you can just imagine how they'd spin it which mitigates against it being a hit, I see no way she can pay what she "owes". Ever. And that is slavery.

What is wrong with this picture? Now how crazy do you think Charles Nesson is to raise constitutional issues about the amount of damages the RIAA can get from noncommercial users in RIAA vs. Tenenbaum?

Even the judge in the original Thomas case was disturbed [PDF] by the disproportionate size of the damages, then $222,000 for the 24 songs:

While the Court does not discount Plaintiffs' claim that, cumulatively, illegal downloading has far-reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs -- the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 -- more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent.

Thomas not only gained no profits from her alleged illegal activities, she sought no profits. Part of the justification for large statutory damages awards in copyright cases is to deter actors by ensuring that the possible penalty for infringing substantially outweighs the potential gain from infringing. In the case of commercial actors, the potential gain in revenues is enormous and enticing to potential infringers. In the case of individuals who infringe by using peer-to-peer networks, the potential gain from infringement is access to free music, not the possibility of hundreds of thousands -- or even millions -- of dollars in profits. This fact means that statutory damages awards of hundreds of thousands of dollars is certainly far greater than necessary to accomplish Congress's goal of deterrence.

Unfortunately, by using Kazaa, Thomas acted like countless other Internet users. Her alleged acts were illegal, but common. Her status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive.

Now those same songs have been upped to $80,000 per song as damages, to $1.92 million. The judge asked Congress in his earlier ruling to please look at the law, and to make a distinction between commercial and noncommercial infringers:
The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer-to-peer network cases such as the one currently before this Court.... The defendant is an individual, a consumer. She is not a business....

The Court does not condone Thomas's actions, but it would be a farce to say that a single mother's acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market.

Farce, indeed. But no one is laughing now. We are all thinking about this woman and what happens now to her life. It rivals Les Miserables. If only the RIAA could understand that they could benefit from P2P, if they only would try, instead of fighting it, which can never succeed. Technology always wins. I'm not even convinced that she is guilty, by the way. You know why? Because for many years I did "tech support" for my family and for an office I worked in. And I saw how easy it was for weird things to happen to a Windows computer that the owner didn't even know about. There are, they say, millions of computers owned by bots for malicious purposes, after all. She says she didn't do it. What if she really didn't? How would she prove it? How would *you*, if it were you? Maybe if the Franklin Pierce law students came to your aid, as they did the woman sued for filesharing who didn't even own a computer.

How many of you have sent your friends or family a funny cartoon or an entire article you found interesting in an email? Did you know you broke the law, if we are going into Les Mis territory?

And what happened after the judge made that plea will help you to understand why Fred von Lohmann of EFF suggests that Ms. Thomas-Rasset's lawyers will likely be thinking about an appeal on constitutional grounds:

Given the size of the statutory damages award, Ms. Thomas-Rasset's legal team will likely be seriously considering a constitutional challenge to the verdict. A large and disproportionate damage award like this raises at least two potential constitutional concerns.

First, the Supreme Court has made it clear that “grossly excessive” punitive damage awards (e.g., $2 million award against BMW for selling a repainted BMW as "new") violate the Due Process clause of the U.S. Constitution. In evaluating whether an award "grossly excessive," courts evaluate three criteria: 1) the degree of reprehensibility of the defendant’s actions, 2) the disparity between the harm to the plaintiff and the punitive award, and 3) the similarity or difference between the punitive award and civil penalties authorized or imposed in comparable situations. Does a $1.92 million award for sharing 24 songs cross the line into "grossly excessive"? And do these Due Process limitations apply differently to statutory damages than to punitive damages? These are questions that the court will have to decide if the issue is raised by Ms. Thomas-Rasset's attorneys.

Second, recent Supreme Court rulings suggest that a jury may not award statutory damages for the express or implicit purpose of deterring other infringers who are not parties in the case before the court. In other words, the award should be aimed at deterring this defendant, not giving the plaintiff a windfall in order to send a message to others who might be tempted to infringe. It's hard to know without having been in the courtroom, but if the record industry lawyers urged the jury to "send a message" to the millions of other American file-sharers out there, they may have crossed the constitutional line.

Slavery was made unconstitutional a long time ago, after all.


US Copyright Law, King Lear, and Jammie Thomas-Rasset | 247 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: PolR on Sunday, June 21 2009 @ 02:32 PM EDT
If any is needed.

[ Reply to This | # ]

OT here
Authored by: PolR on Sunday, June 21 2009 @ 02:34 PM EDT
For everything that catches your fancy but isn't directly related to the main

[ Reply to This | # ]

News picks threads here
Authored by: PolR on Sunday, June 21 2009 @ 02:35 PM EDT
For discussion on news picks articles. Please mention the news title in the
comment title so we know which one you want to discuss.

[ Reply to This | # ]

Jammie Thomas-Rasset --cruel and unusual punishment? (n/t)
Authored by: Anonymous on Sunday, June 21 2009 @ 02:41 PM EDT

[ Reply to This | # ]

$80,000 for a single song
Authored by: stegu on Sunday, June 21 2009 @ 02:49 PM EDT
> Incidentally, has anyone done a study to see how many songs
> in the history of the world earned $80,000 for their authors?

For any individual author, I would guess close to zero. For the recording
company that signed the author, probably some. However, $80,000 sounds to me
rather more than the expected total net earnings ever for most songs except
monster hits.

[ Reply to This | # ]

IP law mess
Authored by: Anonymous on Sunday, June 21 2009 @ 03:13 PM EDT
Calling IP law a "mess" is certainly warranted. Not only does law
extensively favor holders of IP, but such holders are aggressively pushing for
even stronger laws. I have heard half-joking comments about pushing for capital
punishment for copyright infringement.

The Taliban would be proud of the RIAA, and are probably studying their legal

[ Reply to This | # ]

  • IP law mess - Authored by: Anonymous on Sunday, June 21 2009 @ 03:52 PM EDT
    • IP law mess - Authored by: Anonymous on Monday, June 22 2009 @ 03:00 PM EDT
    • IP law mess - Authored by: Anonymous on Monday, June 22 2009 @ 06:48 PM EDT
Contrast Thomas-Rasset's fine to those in Enron, Worldcom, and Microsoft cases.
Authored by: Anonymous on Sunday, June 21 2009 @ 03:18 PM EDT

In the last 10-12 years we have seen a growing number of prosecutions of high profile, White Collar crime prosecuted under both criminal and civil law, both federal and state. However, the sentences for these non-violent, though terribly destructive offenses is often fairly light. Steal $100,000,000 and you might be forced to pay back 10- 20% of that and serve 1-5 years in jail. Or maybe just probation.

What if they had to pay 4000 times the total damages and lost monies. The punishements are so inequitable between copyright violation and theft of real property, I can't believe it!

Consider this short list and add your own:

Jack Abramoff was not a trader or financier. Instead, he was primarily a political operative who managed to turn access and influence in Washington D.C. into a very profitable business. Actually, "criminal enterprise" is probably a better term, as Abramoff is currently serving a five-year prison sentence at a prison camp in Maryland for activities include bribing public officials, stealing from Native American tribes, tax evasion, wire and mail fraud, interfering with the court system in Guam, and defrauding the owners of a Florida cruise line. However, deals he brokered have lead to millions or perhaps a billion in losses over the last 15 years.

Nicholas Leeson, the man who single-handedly brought down Barings Bank back in 1995, lost $1.4 billion in unauthorized trading and rendered Britain's oldest bank insolvent.

Ivan Boesky had become an arbitrageur who had amassed a fortune of over US$200 million by betting on corporate takeovers. He was investigated by the U.S. Securities and Exchange Commission for making investments based on tips received from corporate insiders. As a result of a plea bargain Boesky received a prison sentence of 3.5 years and was fined US$100 million.

Michael Robert Milken, who has accumulated a net worth of $2.1 billion, an unknown amount received from illegal transactions. Milken was indicted on 98 counts of racketeering and securities fraud in 1989 as the result of an insider trading investigation. After a plea bargain, Milken pled guilty to six securities and reporting violations; he was never convicted of racketeering or insider trading. He was sentenced to ten years in prison, but was released after less than two years.

Jeffrey Skilling was the Enron CEO during a financial meltdown due to fraud in the range of hundreds of millions of dollars. Now, Skilling -- whose sentence was double that of other Enron convicts -- was serving a 24-year sentence in Waseca Federal Correctional Institution in Minnesota.

Andrea and Lea Fastow, Enron profited millions of dollars. Fastow was not suave like his boss Jeffrey Skilling, he was a humorless number cruncher. His importance to Enron can not be overemphasized. Fastow worked hard to enrich himself and others who could be of use to him. Fastow and Kopper each turned a $25,000 investment into $4.5 million in a venture called Southampton Place. Lea Fastow, a former Enron assistant treasurer, pleaded guilty to submitting a fraudulent income tax return that did not include profits her family had received from her husband's off-the-books partnerships. She served one year in a federal prison in Houston.

Joseph Nacchio a trendsetter. As the chief executive of Qwest Communications International (NYSE: Q), Nacchio was determined to construct the world's biggest, best, and most totally awesome fiber-optic network. However he was not concerned about illegal deals to do so. The hard- charging exec was convicted of 19 counts of insider trading, and acquitted of 23 more. Circuit Court of Appeals overturned his conviction in March 2008 after finding that the exclusion of testimony by expert witness Daniel Fischel unfairly skewed the case. One dissenting judge argued that the omission of Fischel's remarks was the failure of Nacchio's own defense team, and the conviction should stand. In 2002, both Enron and Quest were facing the prospect of ugly earnings reports, and so the enterprising duo agreed to swap fiber optic network capacity for services in a deal valued at $500 million. Nacchio and Enron chief Jeffrey K. Skilling, "ponder[ed] how to account for the deal so that each would gain accounting benefits and improve its quarterly earnings report." Just in Denver, Nacchio's colossal mismanagement of Qwest cost the city "thousands of jobs and millions of dollars in retirement savings."

Charles Keating was once the chairman of the Lincoln Savings and Loan Association, the infamous bank at the center of the S&L scandal of the 1980s. Again losses of hundreds of millions of dollars in pursuit of his personal fortune.

John Rigas used Adelphia, which at one time was the fifth largest broadcasting and cable TV company, as his personal piggy bank, ultimately driving the company into bankruptcy. He founded the company with his son, Timothy Rigas, who was also charged in the scheme. The Rigases stole $100 million from the company so they could buy luxurious personal residences, trips, and other items to enable them to live a life of luxury on the purse strings of the shareholders.

Ken Lay -- Enron founder, the guy that did not know about the thousands of fake transactions used to puff up the fnancials by hundreeds of millions of dollars. Used to generate huge bonuses and salaries for him and felow managers. The Enron collaps cost the economy several billion dollars in shareholder equity.

Mark Whitacre, of Archer Daniels Midland's (NYSE: ADM). In 1992, Whitacre admitted that he and other executives were involved in a multinational price-fixing scheme. While he personally embezzeled $9 Million. Whitacre was convicted in 1998 for wire fraud, tax evasion, and money laundering. Whitacre served eight and half years. His fellow executives got much lighter sentences. The ADM scandal cost the company and shareholders everal hundred million.

[ Reply to This | # ]

IP law a mess
Authored by: Anonymous on Sunday, June 21 2009 @ 03:19 PM EDT
Some such holders are calling for stronger laws. Not all of them.

And much of the world's intellectual property is being created in China

[ Reply to This | # ]

Jammie Thomas, /Rasset
Authored by: Anonymous on Sunday, June 21 2009 @ 03:31 PM EDT
It just became (very) economically advantageous for
Mr. Rasset to get himself divorced.

[ Reply to This | # ]

Less dangerous than speeding ...
Authored by: Anonymous on Sunday, June 21 2009 @ 03:59 PM EDT
... and we call ourselves civilized.

[ Reply to This | # ]

US Copyright Law -- less penalty for burglary
Authored by: grouch on Sunday, June 21 2009 @ 04:39 PM EDT
It would have been better, measured by penalty, to have burglarized a music store.

Offenders who were convicted of burglary were sentenced to an average of sixty months of prison time and because of good time provisions and parole ended up serving forty-two months on average.

-- Encyclopedia of Crime and Punishment - By David Levinson

Forty-two months imprisonment or indentured servitude for the rest of your life. Hard choice. How is sharing music more of a threat to society than burglary?

There's nothing sacred about our laws -- they are just another commodity on the market, to be manipulated to the advantage of those who have the purchase price. This should outrage every citizen and especially every voter.

-- grouch

GNU/Linux obeys you.

[ Reply to This | # ]

Anyone know Minnesota bankruptcy law?
Authored by: Kevin on Sunday, June 21 2009 @ 05:37 PM EDT
As I understand it, willful copyright infringement is an intentional tort, and
in many States, judgments imposed on intentional tortfeasors are not
dischargeable in bankruptcy. Does anyone know whether Ms. Thomas-Rassett can
discharge this judgment in Chapter 7 in Minnesota?

It gets even worse; debts resulting from intentional torts are in some places
not subject to the 25% limit on garnishments or to property exemptions. So it's
possible that the vultures could be going after the roof over her head, the food
on her table and the clothes on her back. Forever (or at least until some
statute of limitations on collectibility - if Minnesota has one - kicks in).

I think the RIAA just added another zero or two to the end of the amounts that
they'll demand to settle other cases like this one.


73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)

[ Reply to This | # ]

US Copyright Law, King Lear, and Jammie Thomas-Rasset
Authored by: Stumbles on Sunday, June 21 2009 @ 05:38 PM EDT
PJ, that is about the best analysis of this whole copyright thing I have ever
read. Great job. Now if this is the kind of work you do "just goofing
off", I'd hate to see what you could do when you put your mind to
it........ oh wait... its Groklaw.

You can tuna piano but you can't tune a fish.

[ Reply to This | # ]

MediaSentry irrelevant
Authored by: Anonymous on Sunday, June 21 2009 @ 05:40 PM EDT
The jury's award has left MediaSentry in the dust. Thomas had
a new attorney on this trial, and by the time MediaSentry's
evidence was ruled admissible he may not have had time to
examine it as thoroughly as it deserved. Prof. Bratus' report
showed their evidence for UMG v. Roy to be defective at least
on ntp and traceroute, but that was never argued in court.
It's a pity MediaSentry have not yet had their just deserts.

[ Reply to This | # ]

Avoiding copyright infringement: Singing your own chorus music
Authored by: Anonymous on Sunday, June 21 2009 @ 05:42 PM EDT
I am singing in a small, non-commercial University chorus in Graz, Austria (AIMS will be our guest this year, yay!).

Most of the time we choose to sing classical music, and paying for the rights of modern music is one reason why we (have to) do that.
Don't get me wrong, we love classical music, but singing some Beatles, ABBA or Queen songs would also be cool. We use the money we get at the concerts we make for the next project, so I would not describe us a commercial, although the law may think different about it.

I can give every music-fan this one piece of advice: Go sing at a chorus, do not believe you cannot sing. Singing is like jogging, skiing or biking: You can LEARN it, everywhere, at every age.

I am now member of this chorus for 5 years, and my music listening habits have changed from pop music to self- produced classical music. You know, Brahm's Requiem is actually FUN to listen to, once you had the opportunity to sing it yourselves. And that's a Requiem. Imagine the feeling of emotional reward when listening to your own christmas music (yeah, it feels similar to releasing a piece of software under the GPL).

Now that I am at it: Tremendous thanks to all the guys who programmed, tested and bugfixed AUDACITY, it is a true gem!

[ Reply to This | # ]

Authored by: Anonymous on Sunday, June 21 2009 @ 05:43 PM EDT
There's a lot of talk about the large award backfiring on the RIAA. Could this
have been the plan of the jury. Perhaps their own variation on jury

"Jury nullification is the process whereby a jury in a criminal case
nullifies a law by acquitting a defendant regardless of the weight of evidence
against him or her."

[ Reply to This | # ]

Disproportionate statutory damages
Authored by: Kevin on Sunday, June 21 2009 @ 06:13 PM EDT
If I recall correctly, one allegedly mitigating factor that Ms. Thomas-Rasset
offered in her defense was that she already owned CDs with some of the songs at
issue in the case, and used KaZaa for those songs merely as a matter of
convenience (so-called "space shifting"). I may be misremembering the
arguments in another RIAA case.

If she did offer such an argument, I can easily see it now being turned to her
detriment, given that the entire case will now hinge on the proportionality of
damages. I can easily imagine the RIAA offering the argument, "but for her
having made the material available, it wouldn't be on the P2P networks.
Therefore, she needs to be held responsible for any unauthorized copy of those
24 songs, anywhere in the world. The fact that she owns the CDs supports the
argument that she is the source of the unauthorized copies everywhere." Far
better for her if she had simply downloaded them!

If a circuit judge believes that argument - and so far, they seem to be disposed
to believe everything an RIAA lawyer says - woe betide us all. The "But
for" argument argues proportionality of the statutory damages. It is
impossible to know how many or how few of the unauthorized copies of those songs
can be ascribed to Ms. Thomas-Rasset's having made them available, and statutory
damages are imposed precisely to compensate the injured party when the actual
damages are too difficult to assess.

Is there any related Eighth Circuit jurisprudence yet?

73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)

[ Reply to This | # ]

Oh heck, I loaned a few of CD to friends, and my son borrowed a couple of DVD from friends
Authored by: Anonymous on Sunday, June 21 2009 @ 06:30 PM EDT
I loaned a few CD to friends, more than once. I reckon they just listened for a
few weeks and returned the CD-s, well most of them returned the CD-s, you know.
It's possible they played the songs on their mp3-s, a week or two maybe, you
know at the gym or out for a jog or walking the dog, and then deleted the files,
I dont know.

My son (5 yrs) borrowed a few DVD from friends. I'm really sure he didnt make
any kinds of copiers the DVD-s. I know, he did watch them on our TV for a few

Does this mean I'm in trouble with RIAA/MPAA, for "making available"?
How about my son's friends (ages 4-7)?

[ Reply to This | # ]

Just my opinion...
Authored by: Anonymous on Sunday, June 21 2009 @ 06:48 PM EDT
In cases of copyright infringement, as in many other cases, someone who is caught should pay for the damage that they caused. How high should the damages paid be? Since this is a civil case, we should use the best possible estimate of the actual damage, plus an adjustment if the defendant did the action secretly to try to cause the damage without getting caught.

In US copyright law, there are "statutory damages" that are supposed to help plaintiffs who find it hard to prove the amount of actual damages. For example, if 10,000 songs were copied off my computer, it is practically impossible for a plaintiff to find actual proof that 10,000 songs were copied. In criminal law, if I stole 10,000 wallets, I will only be punished for the say 20 thefts that the prosecution could prove, but then the punishment is more severe than just the cost of a wallet. In a copyright case, "statutory damages" are supposed to compensate for this.

But statutory damages do not take into account that different situations produce very different actual damages. Let's see: If we look just at music, I own one CD that is 75 minutes long and contains 41 songs. I own another CD that is 60 minutes long and contains _one_ song. It would seem reasonable that the music on the first CD could be considered worth 25 percent more, because there is 25 percent more of it. Statutory damages consider the first CD worth 41 times as much as the second one. This is completely unjustified.

If we look at all kinds of works, different works are sold at very different prices. Music is usually sold at prices between maybe $0.15 and $1.30 per work (one of the cheapest ones I own is a boxset of Vivaldi music, 8 CDs with 137 songs for £9.99). Other works are more expensive, Blu-ray DVDs are maybe $25, books easily reach $100, computer software ranges from $0.99 to far exceeding $1,000 for off-the-shelf software (for software, we would have to remove the portion that is attributed to support). I think these numbers demonstrate clearly that statutory damages that don't take a factor of 10,000 in the value of different items into account just cannot be right.

Next would be the amount of actual copying: If a commercial bootlegger makes one million copies, and a casual file sharer makes five copies, it is ridiculous to claim that they should pay the same damages. Yet statutory damages don't mention the number of copies made.

What should not make a difference, even though it is often claimed, is whether the copying was made out of commercial interest or not. In this current case, people think the damages are set much too high, and the defendant did not make any money, therefore the conclusion is that damages should be lower for non-commercial infringement. That is wrong. If you look at my previous example, I am saying that the bootlegger making a million copies should pay 200,000 times as much damages as the casual file share making five copies. Not because one is commercial and the other is not, but because the commercial one made 200,000 times more copies. Likewise, if a record shop owner made five copies of songs and sold them for hard cash, he or she should be punished much less than a filesharer who actually made one million copies for others.

If you find this wrong, it is most likely because you haven't looked at the first and last item on my list, which is _actual damage_. Usually the music industry sees a copy being made, and concludes that this is one lost sale with damages accordingly. But that isn't true. Let's say I heard a song on the radio, I really love it, and I am willing to pay for it. I might pay $1.29 to download the song from a legal source, but wouldn't pay more for the whole album. An illegal filesharer who finds the song would easily download the whole album instead of the single song, because it is so cheap. The same file sharer might download all twenty albums that the artist ever produced, just because a search for that one song found all of them, and because the cost is zero. A real fan of that musician might have paid $250 for the complete set of albums; that file sharer that I talked about wouldn't. If that file sharer hadn't been able to download this music for free, he or she would have paid the $1.29 for the single song, and _that_ is the damages.

Now how does this affect commercial and non-commercial copying? If someone sells illegal copies of DVDs for $5 a piece, then every single buyer would obviously have been willing to pay the same $5 for a legal copy. So the fact that someone paid $5 of real money for the illegal copy demonstrates clearly that the actual damages are at least $5. If I got the complete 20 CDs mentioned above for $50 from an illegal site, then that fact would prove actual damages of at least $50. In the non-commercial case it is much more like that in the absence of a free illegal copy, no purchase would have been made anyway. That is why _usually_ commercial copying causes higher actual damages than non-commercial.

Sorry that this takes so long... In the case of copying music, the actual damages are the gross profit of all those additional sales that would have been made if illegal copying had been 100 percent impossible. Would be nice of someone could supply the number of actual record sales in the US and their gross profit; and then we could discuss how much more gross profit there would be if illegal copying of music was impossible. Divide by the number of file sharers to get the average actual damage per average file sharer. Adjust for the severity of an individual file sharer.

Thanks for your patience.

[ Reply to This | # ]

Sue the public libraries
Authored by: Anonymous on Sunday, June 21 2009 @ 08:18 PM EDT

RIAA really needs to go after the most blatant book, magazine, music and movie
sharers of all -- the nation's public libraries. Talk about enablers . . .

How many lost sales have there been to authors, music labels and movie studios?

[ Reply to This | # ]

$1,000 would be already devastating
Authored by: Anonymous on Sunday, June 21 2009 @ 08:36 PM EDT
$1,000 instead of "$80,000 per song as damages" would already be
devastating for most people; and as ridiculous.

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Industrialized culture
Authored by: Anonymous on Sunday, June 21 2009 @ 10:04 PM EDT
It has always been the case that people took other's work as a source of
inspiration for their own.
It was seen as a source of pride that someone else held your work in such high
esteem that they made it the foundation of their own.
Music, painting, sculpture, literature. All are taught by looking at and copying
from past masters.
One of the defining characteristics of intelligence is the ability to learn from
past experiences of others.
I fear we are leaving a cultural black hole to our descendants, sacrificing our
intellectual identity on the altar of industrialized culture.


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  • Industrialized culture - Authored by: Anonymous on Sunday, June 21 2009 @ 11:40 PM EDT
  • Flattery - Authored by: Anonymous on Monday, June 22 2009 @ 12:40 PM EDT
Legalized indentured servitude...
Authored by: Anonymous on Monday, June 22 2009 @ 12:52 AM EDT
... is what many credit cards companies have worked very hard to develop and

Especially those that find themselves with balances that will take 20-30 years
to pay off at interest rates that have suddenly been raised from 8-10% to

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  • Call that ? - Authored by: Anonymous on Monday, June 22 2009 @ 09:26 AM EDT
    • Oh, no. - Authored by: Anonymous on Monday, June 22 2009 @ 08:48 PM EDT
Copyright Law, the greater public good, and the American legal system
Authored by: electron on Monday, June 22 2009 @ 03:24 AM EDT
Modern copyright law has moved away from what it was in the beginning - being an
exclusive right for a person to manufacture copies of a creative work that is
protected by the Crown for a limited finite period of time; after which that
finite copyright expires and the creative work enters the public domain
available for everyone to use as they wish.

Now large multi-national corporations are maneuvering into a position where they
claim that they can have absolute ownership over a creative work such that it
will never enter the public domain.

How does modern copyright law (especially American copyright law in the context
of the extreme litigiousness of American society) serve the greater public

I for one don't think it does!


"A life? Sounds great! Do you know where I could download one?"

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Disney too
Authored by: IMANAL_TOO on Monday, June 22 2009 @ 03:37 AM EDT
Many stories of the Disney movies come from older stories, too. Yet, it appears as if Disney wish to have their own cartoons protected.

Snow White 1937 - _White:
"Snow White (in German Schneewittchen) is the title character of a fairy tale known from many countries in Europe, the best known version being the German one collected by the Brothers Grimm."

Note that the Grimms' werent the original authors either.

Pinocchio 1940 - http://en.wikipe
"The Adventures of Pinocchio (pronounced /pɪˈnoʊki.oʊ/, us dict: pĭ·nō′·kē·ō) (Italian: Le avventure di Pinocchio) is a novel for children by Italian author Carlo Collodi. The first half was originally a serial between 1881 and 1883, and then later completed as a book for children in February 1883. It is about the mischievous adventures of Pinocchio (pronounced [piˈnɔkːjo] in Italian), an animated marionette, and his poor father, a woodcarver named Geppetto."

1940 Fantasia ( /Fantasia_(film)) includes several, e.g. The Sorcerer's Apprentice, based on Goethe's balladic poem Der Zauberlehrling (1797).

Dumbo 1941 - ( )
"The fourth film in the Walt Disney Animated Classics series, Dumbo is based upon a child's book of the same name by Helen Aberson and illustrated by Harold Perl."

The list goes on, with works e.g. by Rudyard Kipling, Lewis Carroll, and H.C. Anderssen. It continues. But, I don't know how they handled the copyright issues of those predecessors, or, how they handle copyrights with a straight face.

Yet, for Arne Anka ( Anka ):
"In the beginning of the 1990s, The Walt Disney Company threatened to sue the author, Charlie Christensen, due to Arne Anka's similarity with Donald Duck. As a response, Charlie Christensen drew a comic strip about Arne faking his own death, so that he could have plastic surgery done to his beak in secrecy. Arne then returned with a new, pointed beak, and the pseudonym Alexander Barks was changed to Alexander X. After a while though, Arne went to a novelty store to buy a fake beak, which looked exactly like his old one. This new beak was drawn showing a small rubber band holding it in place until the threat of being sued was withdrawn."

Where are the beaks in the GPL world?



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Authored by: Ray Beckerman on Monday, June 22 2009 @ 08:47 AM EDT

Brilliant article.

But I have one minor correction

"If current US copyright law had been in effect" should read "If
the RIAA's interpretation of current US copyright law had been in effect".

Shakespeare and his colleagues hung around at the Mermaid Tavern and used each
other's ideas all the time, doing riffs off of themes they'd all grown up with,
just as jazz, blues, and rock musicians do.

Ideas are not copyrightable.

But yes if the content cartel of today were around, these guys would have
treading on thin ice. Not because of the law, but because of the cartel's
disregard of law.

Best regards,

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US Copyright Law, King Lear, and Jammie Thomas-Rasset
Authored by: ThrPilgrim on Monday, June 22 2009 @ 09:19 AM EDT
I don't know what you are all worried about. $1.92 million is peanuts. All my
friends in the City and the Music Bizz clear that in a month. The only people
making less are the terminally lazy and Members of Parliament to stupid to fix
their expenses claims properly.

F'at Cat
RIAA Towers
City of London

Beware of him who would deny you access to information for in his heart he
considers himself your master.

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Jury Nullification?
Authored by: Anonymous on Monday, June 22 2009 @ 11:01 AM EDT
Can the jury in this instance invoke a Jury Nullification? I
think that's what I would have done. Just because, by the
line of the law, they may have been right to find her guilty
doesn't mean the line of the law itself is right. Most
states allow the jury to decide if the law itself is wrong,
overly broad, or unjust in some way. Anyone else have any
input on this?

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The Majestic Equality of the Law
Authored by: Anonymous on Monday, June 22 2009 @ 11:49 AM EDT
Do we want a world where Shakespeare can only write King Lear if he has money?

"The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." - Anatole France

This is not a matter for the courts. This is a matter for the public, and thus in the realm of politics. All who are outraged by this should act on it.

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Chapter 7 - US Copyright Law, King Lear, and Jammie Thomas-Rasset
Authored by: Anonymous on Monday, June 22 2009 @ 01:16 PM EDT
"...locked into indentured servitude for the rest of her natural

That is precisely what Chapter 7 Bankruptcy is designed to protect you from.
You sell off your assets, except what might be protected under bankruptcy law,
pay your creditors, ie the RIAA, and start your life over.

I doubt there is any bankruptcy judge in existence in the US that would deny her
this protection.

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US Copyright Law, King Lear, and Jammie Thomas-Rasset
Authored by: Anonymous on Monday, June 22 2009 @ 02:14 PM EDT
So if US Copyright law applied we would not have had to labour through it in
high school English class. So the downside is????

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Point of reference
Authored by: Anonymous on Monday, June 22 2009 @ 03:07 PM EDT
I've made exactly 0$ for all my songs combined.


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Reminiscent of the "Judge's pants Lawsuit'
Authored by: Anonymous on Monday, June 22 2009 @ 04:09 PM EDT

The Judge in that Lawsuit read the Law in such a way as to claim an extraordinarily large amount for a single pair of lost pants.

The RIAA would like to be awarded a minimum of $750 per song per download/upload. It's incredible any reasonable person would agree to such an amount. I can only speculate, at an $80,000.00 per song award, that the Jury was stacked with individuals of a similar mind to the lost-pants Judge.

Only the situation is slightly worse then the lost-pants Judge. Let's suppose she shared a single song with a single individual. The Jury has awarded $80,000.00 to the RIAA against her. Will they also award an equivalent $80,000.00 against the individual that received that single copy from her?

My understanding is that the Law frowns on double-dipping. Yet, that is what will occur in this situation as the RIAA does not appear to have any need to identify even a single individual who should not have received a copy from her but did. Without that kind of information, the RIAA can do something that Patent holders can not:

    They can sue the provider and the recipient receiving damages twice!


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Shakespeare and Copyright Law
Authored by: Anonymous on Monday, June 29 2009 @ 06:25 PM EDT

This subject was talked about briefly on the Lessig Wiki. There Emerson is quoted on the whole process Shakespeare used. The Riverside edition of Shakespeare's works goes into the sources Shakespeare used. Just opening to the introduction to Richard II, I read: "Johnson's flat assertion that the play was 'extracted' from Holinshed's Chronicles 'with very little alteration' has not deterred research, and inevitably the research has complicated what appeared to be a simple problem. Although Shakespeare's debt to the second (1587) edition of Holinshed is clear, not only for the record of the main events of Richard's later reign but sometimes (as in II.iv) for the very language of a scene, several other alleged sources have been put forward." Earlier they state that "Richard II can be dated within the limits of a single year, 1595." So Shakespeare was making derivative works of stuff less than 10 years old. Anyway, The Riverside edition goes into similar details with so much of Shakespeare's work.

For some more detailed examples see Shakspere's Holinshed: The Chronicle and the Historical Plays Compared.

Of course, the whole "standing on the shoulder's of giants" thing or more simply "borrowing" has been vilified to absurdity; calling it "plagiarism"---the word deriving from a similar form meaning to "kidnap someone's child"; This has become much worse over the last 100 years from a paranoid educational system afraid of loosing its power in the world. But here's the thing: Great artist and scientists know that the whole creative process lies outside of them. At some point the work takes on a life of its own. The great borrower of Shakespeare, James Joyce writes "The personality of the artist, at first a cry or a cadence or a mood and then a fluid and lambent narrative, finally refines itself out of existence, impersonalizes itself, so to speak. The aesthetic image in the dramatic form is life purified in and reprojected from the human imagination. The mystery of aesthetic, like that of material creation, is accomplished." No doubt Shakespeare the man could not come to terms with his own work. Beethoven, Mozart, Bach had little choice in what they wrote, they wrote what they had to write. Take two mathematicians and set them to work proving the same theorem and they will likely give you essentially the same proof. Scientist often talk about the "natural way." None of this belongs to a single man, as if I could kidnap it; it belong to all men, both male and female; it's the magic that ties us all together.

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