Are Statutory Copyright Damages Unconstitutional?

It was only a matter of time before someone raised the constitutionality of copyright damages as a defense in the context of RIAA file sharing lawsuits. As I had suggested in my comments regarding the Jammie Thomas case, the awards of thousands or hundreds of thousands of dollars in statutory damages for offenses that create actual damages of perhaps $3.50 is fertile ground for accused infringers interested in fighting the RIAA.

Denise Barker, a defendant in an RIAA file sharing case, settled with the group yesterday for $6,050. This, after raising the constitutionality of the Copyright Act's damages provisions, though admitting to sharing major label, copyrighted files over KaZaA. Clearly the RIAA wanted no part of this fight or its sure-to-be-exorbitant legal costs.

I expect this constitutionality question and criminal copyright penalties to be the next battlegrounds for the RIAA and its defendants.

Busy Week for P2P Law - Damages Awarded in Atlantic v. Howell

There's a term we lawyers use: "spoliation." In normal terms that means destroying (or allowing to be destroyed) evidence that is relevant to pending or foreseeable litigation. In even more blunt terms, it means: the stupidest thing you can do if you're being sued by the RIAA and you're moving in a winning direction.

As I discussed several months ago, a federal court in Arizona had handed a significant setback to the RIAA in their case against Jeffrey Howell for sharing copyrighted music with KaZaA. So how did Howell follow up his small victory? He destroyed evidence that he was expressly instructed to preserve by deleting KaZaA from his computer, removing all shared files, reformatting the drive and using software to wipe the drive. That will quickly turn your fortunes around. Howell was just ordered to pay nearly $41,000 to the RIAA - a damage award that may never have been had he simply followed the court's directive.

More details at Ars Technica.

Blogger Who Posted Unreleased Guns N' Roses Tunes May Soon Be a Singing Jailbird

The story of Kevin Cogill, the blogger who posted unreleased tracks from Axl Roses' unreleased Chinese Democracy has seen a lot of coverage over the last week. My thoughts on the matter can be found in the following story at eCommerceTimes.com.

Doug Panzer Comments in Blogger Faces Hard Time for Posting Guns N' Roses Music.

YouTube Happy with Veoh's Win, But Not Off the Hook in Viacom Litigation

A recent district court decision in which a San Jose judge ruled that YouTube competitor Veoh was not liable for copyright infringement based on infringing material posted by users is being batted about in the blogosphere and the news media in hopes of gleaning some insight into any affect it may have on the outcome of the pending Viacom v. YouTube litigation.

The ruling is clearly a win for Veoh and a good sign for YouTube, but not dispositive of the YouTube/Viacom litigation in any way. While the San Jose court's decision may be persuasive to the judge in the YouTube case, it is not binding precedent.

The Digital Millennium Copyright Act (DMCA) provides a safe harbor for service providers as long as they act as a "conduit," meaning they do not select or modify the content that is transferred. They also have to respond to take-down notices from copyright owners. While the Veoh court has clearly said that Veoh falls within the safe harbor, there are still other cases out there (such as the Aimster case) that say turning a blind eye to wrongdoing does not excuse you from liability. And more importantly, Viacom can still rely on the Supreme Court's holding in Grokster, which hinges on "intentionally inducing or encouraging direct infringement." If Viacom can convince a judge that YouTube's business model is based on encouraging users to upload infringing content in order to attract more users to the site, the fact that YouTube later responds appropriately to take-down notices may not absolve them of liability.

Bottom line, YouTube is very happy with the Veoh decision, but it doesn't necessarily affect the outcome of the Viacom/YouTube suit.

For articles regarding the Veoh decision, see:

• Washington Post
  
• AllHeadlineNews