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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.

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