$1.92 Million Damage Award for Filesharing

Musical Notes$1,920,000 for filesharing. As reported by the L.A. Times, Ars Technica, and Ben Sheffner, that’s what a jury in Minnesota just awarded several record labels for the willful infringement of their recordings by Jammie Thomas (now Jammie Thomas-Rasset), the Minnesota woman who allegedly downloaded and uploaded copyrighted songs over KaZaA. $1.92 million is an astounding figure, seemingly out of all proportion to any harm Jammie Thomas-Rasset could have caused, or to any reasonable deterrent. Even the record labels appear to be backing away from the award; nearly the first words out of spokesperson Carla Duckworth’s mouth were that they remain “willing to settle.” Ben Sheffner, of the Copyright & Campaigns blog, correctly notes that the verdict might in fact be “too huge” for the recording industry’s own good.

This is hardly a new issue. Record companies and movie studios often sue filesharers for far fewer works than the defendant actually copied, and settle for relatively small amounts given the range of statutory damages. It’s a problem if the law that media companies use to protect their works is so draconian that they are afraid to deploy it to their full advantage. You don’t see this in other areas of the law; no one routinely files breach of contract actions for one-tenth of their expectation damages just to avoid the appearance of a windfall.

So what’s the source of the problem? I think the explanation is the massive inertia of the copyright system in dealing with the fundamental alteration of the information universe: namely, that everyone is now a publisher. And, while it’s easy to scoff at the existing situation, it’s harder than most people think to figure out how to fix it. Which is why we are where we are.

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Why Intellectual Property is Often (Literally) the “Icing on the Cake”

barbie-cakeI often tell my students that Intellectual Property is like the “icing on the cake”—the “cake” being the structure created by a product or service to which Intellectual Property law (IP) applies.  As I will elaborate in a future post, this is one of the reasons why I like IP so much.  In other words, while the technical application of IP is undoubtedly complicated and challenging, IP is often just the last step of a production or creation process.  It is like the icing on a cake — that final layer that ties everything together.  Yet this layer is absolutely necessary to complete the work and often represents the sine qua non of why the public will buy the cake.  It determines whether a product will be successful or not.  This post, however, is not about IP theory . . . it is really about cakes, icing, and IP.

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2009 Nathan Burkan Memorial Competition Winners

musical_notessvgEvery year, the American Society of Composers, Authors and Publishers (ASCAP) sponsors the Nathan Burkan Memorial Competition, named after the lawyer who founded ASCAP in 1914. The competition awards prizes at accredited law schools across the country for the best one or two papers in any area of copyright law at that law school. I am very pleased to announce this year’s winners of the competition at Marquette:

  • First Prize: William K. Pridemore II, Foul Ball! Why the Digital Millennium Copyright Act Strikes Out on Fair Use
  • Second Prize: Kevin P. Rizzuto, Just Say No (to Injunctions Enjoining Future Sale or Lease of Copyrighted Residential Homes)

First prize carries with it an award of $600, and second prize is awarded $250. Congratulations to Will and Kevin!

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