Media Piracy in Emerging Economies

In The Global Regime for the Enforcement of Intellectual Property Rights, Xavier Seuba offers a comprehensive description of the international norms and bodies dealing with the enforcement of intellectual property rights. The book analyzes multilateral, plurilateral, and bilateral treaties, and their national implementation, along with civil, border, and criminal enforcement. The book also explores the interface between the enforcement of intellectual property rights and the norms regulating international trade, competition, and human rights, as well as the conceptual and systemic aspects of enforcement, while illustrating the importance of these rights with examples in litigation. The book should be read by anyone interested in how intellectual property rights are being enforced around the world, and how these efforts relate to other legal regimes.

The Global Regime for the Enforcement of Intellectual Property Rights

Intellectual property (IP) laws were drafted for tangible objects, but 3D printing technology, which digitizes objects and offers manufacturing capacity to anyone, is disrupting these laws and their underlying policies. In this timely work, Lucas S. Osborn focuses on the novel issues raised for IP law by 3D printing for the major IP systems around the world. He specifically addresses how patent and design law must wrestle with protecting digital versions of inventions and policing individualized manufacturing, how trademark law must confront the dissociation of design from manufacturing, and how patent and copyright law must be reconciled when digital versions of primarily utilitarian objects are concerned. With an even hand and keen insight, Osborn offers an innovation-centered analysis of and balanced response to the disruption caused by 3D printing that should be read by nonexperts and experts alike.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2811859_code1294324.pdf?abstractid=2533673&mirid=1&type=2

3D Printing and Intellectual Property

Since the birth of Napster in 1999, corporate copyright owners have attempted to "govern" file sharing aggressively at three discrete points of intervention: the content level, the network level, and the user level. Their efforts have met with resistance at each of these points, however, because they have failed to appreciate the insight articulated by Michel Foucault that governing people, in the broad sense, is not only a matter of making them behave; it's also a matter of making them want to behave. This article surveys a decade's worth of anti-piracy regulation and examines the ways in which the entertainment industry's recourse to coercion at every point of intervention has functioned to undermine rather than advance the anti-piracy cause.

Why Pirates (Still) Won't Behave: Regulating P2P in the Decade After Napster

The article uses conceptual metaphor theory to analyse how the concept of “copy” in copyright law is expanding in a digital society to cover more phenomena than originally intended. For this purpose, the legally accepted model for valuing media files in the case against The Pirate Bay (TPB) is used in the analysis. When four men behind TPB were convicted in the District Court of Stockholm, Sweden, on 17 April 2009, to many, it marked a victory over online piracy for the American and Swedish media corporations. The convicted men were jointly liable for the damages of roughly EUR 3.5 million. But how do you calculate damages of file sharing? For example, what is the value of a copy? The article uses a model for valuating files in monetary numbers, suggested by the American plaintiffs and sanctioned by the District Court in the case against the BitTorrent site TPB, in order to calculate the total value of an entire, and in this anonymous other, BitTorrent site. These calculated hypothetical figures are huge—EUR 53 billion—and grow click by click which, on its face, questions some of the key assumptions in the copy-by-copy valuation that are sprung from analogue conceptions of reality, and transferred into a digital context. This signals a (legal) conceptual expansion of the meaning of “copy” in copyright that does not seem to fit with how the phenomenon is conceptualised by the younger generation of media consumers.

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Copy Me Happy: The Metaphoric Expansion of Copyright in a Digital Society

U.S. copyright law gives successful plaintiffs who promptly registered their works the ability to elect to receive an award of statutory damages, which can be granted in any amount between $750 and $150,000 per infringed work. This provision gives scant guidance about where in that range awards should be made, other than to say that the award should be in amount the court “considers just,” and that the upper end of the spectrum, from $30,000 to $150,000 per infringed work, is reserved for awards against “willful” infringers. Courts have largely failed to develop a jurisprudence to guide decision-making about compensatory statutory damage awards in ordinary infringement cases or about strong deterrent or punitive damage awards in willful infringement cases. As a result, awards of statutory damages are frequently arbitrary, inconsistent, unprincipled, and sometimes grossly excessive. This Article argues that such awards are not only inconsistent with Congressional intent in establishing the statutory damage regime, but also with principles of due process articulated in the Supreme Court’s jurisprudence on punitive damage awards. Drawing upon some cases in which statutory damage awards have been consistent with Congressional intent and with the due process jurisprudence, this Article articulates principles upon which a sound jurisprudence for copyright statutory damage awards could be built. Nevertheless, legislative reform of the U.S. statutory damage rules may be desirable.

Statutory Damages in Copyright Law: A Remedy in Need of Reform

TABLE OF CONTENTS INTRODUCTION I. THE EVOLUTION OF STATUTORY DAMAGES IN U.S. COPYRIGHT LAW A. Statutory Damages Under the 1909 Act B. Statutory Damages Under the 1976 Act 1. Respects in Which Congress Limited Statutory Damages 2. Respects in Which Congress Broadened Statutory Damages II. STATUTORY DAMAGES AWARDS IN COPYRIGHT CASES SHOULD BE CONSISTENT WITH DUE PROCESS PRINCIPLES A. The Supreme Court's Due Process Jurisprudence Limits Punitive Damage Awards B. Some Copyright Statutory Damage Awards Are Consistent with Congress's Intent and Due Process Principles C. Some Copyright Statutory Damage Awards Are Inconsistent with Congressional Intent and Due Process Principles D. Punitive Statutory Damage Awards Are Subject to Due Process Limits III. PROPOSALS FOR REFORM A. Considering Statutory Damages in the Context of Other Copyright Remedies B. Reform Within the Current Statutory Framework 1. What Courts Should Do 2. What Courts Should Not Do C. Is There a Need for Legislative Reform? CONCLUSION INTRODUCTION The United States is an outlier in the global copyright community in giving plaintiffs in copyright cases the ability to elect, at any time before final judgment, to receive an award of statutory damages, which can be granted in any amount between $750 and $150,000 per infringed work. (1) U.S. copyright law provides scant guidance about where in that range awards should be made, other than to say that the award should be in an amount the court "considers just," (2) and that the upper end of the spectrum--from $30,000 to $150,000 per infringed work--is reserved for "willful" infringers. (3) Although Congress intended this designation to apply only in "exceptional cases," (4) courts have interpreted willfulness so broadly that those who merely should have known their conduct was infringing are often treated as willful infringers. (5) One might have expected courts to develop a jurisprudence to guide them in accomplishing the largely compensatory goal that has historically underlain the U.S. statutory damage remedy (6) or to formulate meaningful criteria for awarding enhanced damages in willful infringement cases. Unfortunately, this has not yet happened. Awards of statutory damages are frequently arbitrary, inconsistent, unprincipled, and sometimes grossly excessive. (7) Consider a few examples. In UMG Recordings, Inc. v. MP3.com, Inc., a trial court held that the defendant had willfully infringed copyrights by developing a database of music "ripped" from CDs the firm had purchased, after which the judge announced his intent to award statutory damages of $25,000 per infringed CD. (8) Approximately 4,700 CDs were at issue in the case, for a potential total award of over $118 million--despite the absence of any evidence of actual harm to the plaintiffs or profits to the defendant. (9) In another case, Elvin Feltner was initially held liable as a willful infringer for his station's unauthorized broadcast of television programs for which a court awarded the copyright owner statutory damages of $20,000 per work, for a total award of $8.8 million. (10) On appeal, Feltner argued that he had a right to a jury trial on the issue of statutory damages, and the Supreme Court agreed with him. (11) On remand, Feltner got his jury trial, but the jury handed down an even larger statutory damage award of $72,000 per work for exactly the same acts of infringement, resulting in a total award of over $31 million. (12) In a recent peer-to-peer (p2p) filesharing case, Capitol Records v. Thomas-Rasset, a jury awarded $80,000 per infringed song against an individual file-sharer, for a total award of over $1.92 million, (13) despite the trial judge's recognition that actual damages were approximately $50. …

/pdf/statutory-damages-in-copyright-law-a-remedy-in-need-of-58vjj05qov.pdf

American copyright professionals may be so accustomed to the current domestic regime of statutory damages that it may come as a surprise to learn that very few countries in the world have anything comparable. Our survey of 177 World Intellectual Property Organization member states reveals that the United States is one of only 24 nations that has a statutory damage regime. Of these 24 countries, the vast majority have developing or emerging economies and are not known for having strong copyright industries.The United States was the first country to adopt range-based statutory damage rules for copyright infringement, and it was the only country in the world that had them for many years. Several countries that have adopted statutory damage regimes in recent years have done so under the pressure or influence of the United States. The United States both encourages and mandates the adoption of statutory damage rules through bilateral and regional trade agreements and through the Special 301 review process. Even after countries adopt statutory damage rules, they sometimes face continued criticism from the United States and domestic interests for placing sensible limitations on statutory damages not present in U.S. law.This Article demonstrates the rarity of statutory damages and contrasts the U.S. statutory damages rules with those of other countries, where they exist. It argues that the current method of proliferating statutory damages is troubling because it inhibits the freedom of other countries to decide for themselves whether and how to impose statutory damages in a way that meshes with their respective civil legal regimes. Such limitations also deprive countries, including the United States, of the benefit of statutory experimentations that eventually may lead to a more precise calibration of the balance between effective and just outcomes. Part I explains the methodology and findings of our global survey of statutory damages provisions. Part II examines various U.S. efforts to spread statutory damages around the world through bilateral and regional trade agreements. It also explains how increasingly specific requirements in those trade agreements restrict the ways that other countries can tailor the remedy to suit their interests. Part III highlights the ways in which some countries have succeeded in providing some constraints in their statutory damage provisions that are not present in the United States. Part IV examines the emergence of statutory damages requirements in recent multilateral trade agreements.

Statutory Damages: A Rarity in Copyright Laws Internationally, But for How Long?

U.S. copyright law gives successful plaintiffs who promptly registered their works the ability to elect to receive an award of statutory damages, which can be granted in any amount between $750 and $150,000 per infringed work. This provision gives scant guidance about where in that range awards should be made, other than to say that the award should be in amount the court "considers just," and that the upper end of the spectrum, from $30,000 to $150,000 per infringed work, is reserved for awards against "willful" infringers. Courts have largely failed to develop a jurisprudence to guide decision-making about compensatory statutory damage awards in ordinary infringement cases or about strong deterrent or punitive damage awards in willful infringement cases. As a result, awards of statutory damages are frequently arbitrary, inconsistent, unprincipled, and sometimes grossly excessive.This Article argues that such awards are not only inconsistent with Congressional intent in establishing the statutory damage regime, but also with principles of due process articulated in the Supreme Court's jurisprudence on punitive damage awards. Drawing upon some cases in which statutory damage awards have been consistent with Congressional intent and with the due process jurisprudence, this Article articulates principles upon which a sound jurisprudence for copyright statutory damage awards could be built. Nevertheless, legislative reform of the U.S. statutory damage rules may be desirable.

Tara Wheatland

Papers

Statutory Damages in Copyright Law: A Remedy in Need of Reform

Statutory Damages in Copyright Law: A Remedy in Need of Reform

Statutory Damages: A Rarity in Copyright Laws Internationally, But for How Long?

Statutory Damages in Copyright Law: A Remedy in Need of Reform