Archive for the 'RIAA' Category

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no small victory — order granted extending time


Defendant-appellee/cross-appellant Joel Tenenbaum hereby respectfully moves this Court for an order extending the due-date for his brief for thirty (30) days from the current due date of November 26, 2010, to and including December 27, 2010. This is Defendant-appellee/cross-appellant’s first request for an extension of time. The reasons for the extension are as follows:
1. On October 27, 2010, Plaintiff-appellants/cross-appellees Sony BMG Music Entertainment et al. and, separately, the United States served upon movant their respective principal briefs. Under the provisions of Rule 31 of the Federal Rules of Appellate Procedure and this Court’s prior order, movant’s brief is due to be filed on November 26, 2010.
2. Charles Nesson is pro bono counsel and a full-time professor at Harvard Law School. He is assisted by full-time law students Jason Harrow JD ‘11, Andrew Breidenbach JD ‘11, Nathan Lovejoy JD ‘13, and Phillip Hill JD ‘13. They have been diligently conducting research to prepare a brief, but the opening briefs raise significant issues that merit further consideration than the current timeline will allow. Due to the constraints of their academic schedules, they are unable to devote their complete attention to the brief under the current timeline. All are taking a full-course load and have impending exams.
3. Additionally, the fact that the current due date of November 26, 2010 is the Friday after Thanksgiving presents additional difficulties. The Thanksgiving holiday is a time to spend with family and, as students, a time to catch up with schoolwork.
4. A thirty-day extension would allow sufficient time to prepare a brief for this Court while also permitting students to complete their course work for the semester before the filing deadline.
5. This motion is unopposed by both Plaintiff-appellants/cross-appellees Sony BMG Entertainment, et al., and by the United States.

WHEREFORE, the undersigned respectfully requests that the Court extend the time to file movant’s principal/response brief by thirty (30) days, to December 27, 2010, to permit a thorough consideration of and response to the Plaintiff-appellants/cross-appellees’ opening brief.

Respectfully submitted,

Charles Nesson
with assistance of:
Jason Harrow JD ‘11
Andrew Breidenbach JD ‘11
Nathan Lovejoy JD ‘13
Phil Hill JD ‘13.

AMICUS to Judge Davis

just prior to the thomas-rasset re-retrial
my amicus brief to Judge Davis


Charles Nesson is the William F. Weld Professor of Law at Harvard Law School as well as Founder and Faculty Co-Director of the Berkman Center for Internet & Society. He teaches the Law of Evidence and the American Jury. He is counsel for Joel Tenenbaum, the defendant in Sony BMG Music Ent’mnt v. Tenenbaum, No. 07cv11446-NG, 2010 WL 2705499 (D. Mass., July 09, 2010), which is currently pending appeal. As the only other individual filesharing case to go trial, its eventual outcome may be influenced by the jury instructions to be given by this Court in the re-retrial of Jamie Thomas-Rasset to commence on November 2, 2010.

In the re-retrial of Jamie Thomas-Rasset, the only issue to be tried is the amount of the statutory damage award the copyright holders are receive. The jury in the case should be instructed to return a damage award that is “just.” No mention of the statutory range should be made. To do so would exceed and indeed contravene the mandate of 17 U.S.C. § 504 and would violate the Seventh Amendment.

Given the non-commercial nature of the defendant’s actions in this case, presenting the statutory maximum to the jury sets an anchor to the damage range which is both prejudicially biasing to the jury’s judgment and unconstitutional.

The language of the Copyright Act of 1976 and its predecessor contemplated that the amount of statutory damages assessed for copyright infringement would be decided by judges and not juries. See 17 U.S.C. § 504(c) (2006) (statutory damages set “as the court considers just”); Pub. L. 60-349 § 25 (1909) (damages to be set “as to the court shall appear to be just”); see also 4 Nimmer on Copyright § 14.04(C)(1) (2010) (the “dominant view” before 1998 was that “it is for the judge, in the exercise of his discretion, to award statutory damages”). But in 1998, the Supreme Court, in Feltner v. Columbia Pictures Television, Inc., held that “the Seventh Amendment provides a right to a jury trial on all issues pertinent to an award of statutory damages . . . including the amount itself.” 523 U.S. 340, 355 (1998). Congress has not amended the fundamental structure of the statute in light of this decision — instead, the overall scheme remains the same, except that the amount of damages is sent to a jury unless the jury trial right is waived.

Overlaying a jury trial onto the pre-existing statutory damages regime invites arbitrariness because “[u]nlike juries, judges can draw on their experience of setting awards in other copyright cases, as well as their research regarding the awards imposed by other judges, in settling on an appropriate figure.” 145 Cong. Rec. S7453 (Sen. Hatch). Indeed, there has been a staggering difference between statutory damages assessed by juries and those assessed by judges in filesharing cases, which ultimately speaks to the error in the jury’s instructions.

The statute requires an award which is “just.” Yet, giving the jury a dollar range displaces the jury’s delicate and inchoate common sense notion of what is “just” and substitutes a mandate to choose within an expansive range. The verdict form in Tenenbaum, like the verdict forms in the two trials of Thomas-Rasset, directed the jury to answer:

“If you answered “YES” [to “willful” (defined as “knowing”)], what damages do you award the Plaintiff for this copyrighted work, from $750 to $150,000?”

This sentence is repeated in the verdict form for each separate infringement. Coupled with the instructions given by the judge, the extremes of the statutory range are driven into jury consciousness. The task of setting a “just” award is displaced. The statutory maximum is provided with no context for understanding it. A juror will “start with some anchor, the number [she] know[s], and adjust.” Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness 23 (2008). This is problematic because “adjustments are typically insufficient.” Id. Thus, when charities are seeking donations, the particular suggested amounts influence what people donate — when the suggestions are higher, the donations are as well. Id. The impact of the $150,000 range limit (with no instruction explaining that the higher end of the range is reserved for egregious commercial infringers) will work to encourage jurors to adjust their award upward, well beyond what is constitutionally permissible against a non-commercial defendant who has made no profit and caused minimal if any damage. Anchoring the range at a maximum that has already been held to be unconstitutional as applied to another individual non-commercial filesharer, see Tenenbaum at *26 (determining that $2,500 per infringement is “the maximum amount that is consistent with the dictates of the Due Process Clause”), invites arbitrary and excessive jury awards.

Indeed, the outcomes from the previous verdicts in this case bear this out. The juries, both informed of the statutory range, predictably returned wildly excessive and disparate awards, in the first trial $9,250 per infringement for a total of $221,500 and in the second trial $80,000 per infringement totaling $1,900,000, Capitol Records Inc. v. Thomas-Rasset, 680 F. Supp. 2d 1045, 1048 (D. Minn., 2010). In Tenenbaum, with the jury likewise instructed, the jury set $22,500 per infringement for a total of $675,000. Even when lowered by a factor of ten, Judge Gertner described the amount as “significant and harsh . . . [and] higher than I might have awarded in my own independent judgment.” 2010 WL 2705499, at *27. The awards from these cases demonstrate the folly. An instruction to the jury that it can return an unconstitutional verdict leads to the possibility of endless retrials. Every case has produced jury awards from three to thirty-six times the maximum the constitution is said to allow.

Instructing the jury on the statutory range is not required by the statute. The statute explicitly charges the judge, not the jury, with fitting the “just” award within the statutory range. Let the jury determine the “just” award in the absence of numeric anchors. Let the judge subsequently adjust the award to fit the statutory range. Nothing in the Seventh Amendment requires the jury to perform the task of adjusting the award it determines to be just to fit within the statutory range. If there is any such requirement it must be found within the statute, but of course, no such requirement is there.

Instructing the jury on the maximum range introduces extreme arbitrariness into the process because the jury has no basis for contextualizing the maximum.

The extraordinarily broad statutory range provided in 17 U.S.C. § 504(c) is intended to cover the gamut of infringing activities. Unfortunately, Congress provided no explicit guidance on how to ascribe damages within that range. Since the passage of the 1976 Copyright Act, Superior Form Builders, Inc. v. Dan Chase Taxidermy Supply Co., 74 F.3d 488 (4th Cir. 1996) is the only final decision ascribing a statutory maximum for copyright infringement. Dan Chase Taxidermy Supply Company had become the largest taxidermy supplier in the country by consistently and deliberately copying its competitors’ animal mannequins, consciously disregarding copyright laws, and continuing despite being sued several times for infringement. In fact, at the time of trial, eleven plaintiffs were suing the company for similar infringements. Id. at 497.

The company purchased animal mannequins from copyright holders using pseudonyms, removed their copyright notice, and attached its own. It went on to register its infringing works with the copyright office and advertise itself as the originator of the goods, warning consumers to “Beware of looka-likes” and vilifying other suppliers, including the original copyright holder, as “desperate ‘copy cats’ working overtime in an attempt to deceive the public and violate the rights of others.” Id. at 492. The trial court determined that “Chase had been involved in similar infringement suits for years and that only substantial awards of damages as well as attorney’s fees will deter Mr. Chase from continuing this willful and outrageous conduct.” Id. (quotations omitted). The court also found that Chase was in violation of the ethical rules of the National Taxidermy Association, to which he was a member, against reproducing works of others. Id.

Judges have means to contextualize the statutory range. Juries do not. To force juries to award damages with inadequate and positively misleading direction from the Court does the institution of the jury and the law no service—the jury because its verdicts are disconnected from the common sense on which its respect depends, the law because its process is manipulated to produce and project a draconian message at odds with sense and constitution.

The Court could diminish the arbitrariness of the jury’s task by explaining how to determine a damage award that would be “just.” Your duty in instructing the jury is to fill the void left when Feltner took the task of setting the statutory award away from judges and gave the task to jurors. Bottom line, you should instruct the jurors in a way that provides them with meaningful context, and avoid instruction that invites arbitrariness. Judge Gertner’s constitutional ruling and your previous opinions in this case provide the base on which to build. Your instruction should identify the noncommercial character of the defendant is case as ” an individual who reaped no pecuniary reward from [her] infringement and whose individual infringing acts caused the plaintiffs minimal harm, Sony BMG Music Ent’mnt v. Tenenbaum, No. 07cv11446-NG, 2010 WL 2705499 (D. Mass., July 09, 2010). You should instruct that if the defendant’s actions were knowing but not willful, then the minimum of $750 per infringement would be appropriate; you should instruct that if the defendant’s actions were willful, then, depending on the degree of willfulness, the jury could lawfully set the award as high as treble the $750 minimum. Within that range the jury should set an award it considers to be just.

The Court could also rationalize its instruction on willfulness with § 504(c). The statute creates three distinct categories of infringer: innocent, the lowest category; willful, the highest category, and a now indefinable middle category, neither innocent (defined as “not aware” and with “no reason to know”) nor willful, presently misdefined as satisfied by “knowing.” Since lack of knowledge is the defining characteristic of innocent infringement, a determination of knowledge has the effect of merging the top two gradations of infringement, both “willful”. Moreover, the R.I.A.A. has so far succeeded in removing innocent infringement from consideration. See Maverick Recording Co. v. Harper 598 F.3d 193 (5th Cir. 2010); B.M.G. Music v. Gonzalez 430 F.3d 888 (7th Cir. 2005). This further collapses the tripartite structure of infringement into a single category, flouting the manifest design of the statute.
This need not, and indeed should not be the structure of § 504(c) presented to the jury. Instead infringement should be placed within a structure sensibly aligned and contextualized to express the statute. Innocent infringement would be explained as infringement occurring with no knowledge on the part of the defendant that she was infringing, e.g. Harper. Then a spectrum of non-innocent/non-willful infringement should be described to the jury, starting at the base of the second category of infringement with mere knowledge and extending to end of the spectrum, covering infringements that exhibit willfulness in high degree, e.g. Builders. Such instruction would aid, not displace the jury’s ability to decide on an award that is “just”.

Respectfully submitted,

Charles Nesson,
with assistance of Phil Hill, JD’13

pam samuelson on the problem statutory awards were adopted to solve

consider professor samuelson’s and tara wheatley’s account of the origin and purpose of statutory awards for copyright infringements:

I. The Evolution of Statutory Damages in U.S. Copyright Law

Statutory damages in U.S. copyright law have historically been intended to ensure that copyright owners could obtain at least some measure of compensation when it was difficult to prove how much damage they had suffered as a result of the defendants’ infringements. Although Congress made some effort to cabin statutory damage awards to avoid excessiveness in the Copyright Act of 1976, the presence of the enhanced damage provision available for willful infringements has led to an increasing number of awards that are not only punitive in effect, but punitive in intent. This trend is inconsistent with sound copyright policy and with Congress’s intent in adopting this provision.

A. Statutory Damages Under the 1909 Act

Some historical context is useful to understand the purposes of the statutory damage regime established in the 1909 Act. During the late eighteenth and throughout the nineteenth centuries, U.S. law allowed copyright owners to be awarded a statutorily set penalty of 50 cents, later increased to $ 1, per infringing sheet found in the defendant’s possession. For several decades, the per sheet penalty was the only monetary remedy that could be obtained from common law courts, although later amendments generally enabled copyright owners to recover actual damages in common law courts, or if the suit was brought in equity, an accounting of the defendant’s profits along with injunctive relief.

The legislative history of the Copyright Act of 1909 is replete with expressions of dissatisfaction with the per sheet remedy. This dissatisfaction was due in part to the penal character of this remedy which caused courts to construe it narrowly, and in part to the rigidity of rules about which remedies for infringement were available at law or in equity.

Perhaps the most important remedial reform introduced in the 1909 Act was the new law’s authorization for one civil lawsuit to be brought in which actual damages and the defendant’s profits (or the “in lieu” damages to be discussed shortly) could be awarded, as well as forfeiture of infringing copies and an injunction against future infringements.

A second important reform was the elimination of the per sheet penalty, whose previously penal functions were now served by a criminal provision for willful infringements for profit, and whose compensatory and deterrent functions were taken on by the availability of monetary relief for actual damages (for example, lost license fees) and defendant’s profits attributable to infringement.

A third important reform was the creation of a new generalized regime of statutory damages, available “in lieu” of actual damages and profits, which could overcome the severe difficulties of proof of damages and profits about which participants in the legislative history had so vigorously complained.

Section 101(b) directed the courts to make such awards in an amount that was “just,” but it also set a range within which statutory damage awards should be made: no less than $ 250 and up to $ 5,000 per infringement. To aid judges in determining the appropriate amount of compensatory statutory damages within this range, § 101(b) suggested specific amounts for common types of infringements (for example, $ 10 for every infringing copy of a painting, statue, or sculpture; $ 1 per infringing copy of other works; $ 50 for every infringing performance of a lecture, sermon, or address; $ 10 for every infringing performance of a musical composition, and so on). Newspapers and motion picture studios persuaded Congress to cap their potential liability for unwitting infringements. Section 101(b) also explicitly stated that statutory damages “shall not be regarded as a penalty.”

Cases interpreting this new provision articulated its purpose as granting fair compensation to copyright owners when “the rules of law render difficult or impossible proof of damages or discovery of profits.” In keeping with this purpose, some courts refused to order defendants to pay statutory damages when actual damages or profits could be proven. Indeed, the Supreme Court held that the 1909 Act’s statutory damage provision was inapplicable when damages and profits were proven. If a successful plaintiff had suffered only nominal or no damage, the minimum of $ 250 might be awarded, but no more, in keeping with the policy that statutory damages should not be a penalty. Courts sometimes also refused to impose any statutory damages when the evidence showed no harm to the copyright owner and no profits to the infringer. In keeping with the no-penalty rule, appellate courts sometimes reduced large statutory damage awards to the minimum in close, although ultimately unsuccessful, fair use cases. Occasionally, appellate courts reduced statutory damage awards that were excessive in relation to approximate damages or profits.

We base our conclusion that statutory damages under the 1909 Act were mainly compensatory in purpose on several factors. First, the structure of § 101(b) identifies actual damages and defendant’s profits as the primary remedies for infringement, and statutory damages as an “in lieu” remedy. Second, the legislative history of the 1909 Act, as well as the case law interpreting it, view the primary impetus for adopting statutory damages as providing some relief when damages and/or profits are difficult to prove. Third, in addition to providing a range within which statutory damage awards should be made and setting a cap to prevent excessive awards, § 101(b) proffered guidelines for what Congress considered to be reasonable damages for various types of works. Fourth, the case law interpreting the 1909 Act’s statutory damage provision generally focused on its compensatory function and respected the “no penalty” direction. This is not to say that statutory damage awards under the 1909 Act lacked deterrent purposes and functions. By setting a floor of $ 250 and giving courts discretion to award up to $ 5,000, Congress surely intended to deter infringement, but the compensatory impulse was most evident in the law as applied.

exemplary statutory awards

against individual citizens not proven to have caused any actual damage imposed through civil process at the behest and discretion of corporate plaintiffs who hold effectively unlimited prosecutorial power in their hands.

thomas-rasset, tenenbaum, whitney harper

i was writing for all of them when i submitted this reply to the response riaa was requested to file when judge davis admitted my amicus brief.


The legal core of the plaintiffs’ case is its assertion that copyright statutory damages can be used to teach people a lesson. Tim Reynolds in his opening statement to the jury makes clear that the jury’s damage award is to be based in part on what the jury thinks is needed to deter filesharing. Plaintiffs see copyright as a strict liability offense backed by penal statutory damages imposed with the function and purpose not only of compensating the plaintiffs for whatever damage this defendant has done to them and deterring the defendant from future infringing conduct, but, critically, to make an example of the defendant to deter others. This equation of exemplary with statutory damages is not the law.

Listen to Mr. Justice Roberts speaking for the Supreme Court in Douglas v. Cunningham, 294 U.S. 207 (1935), addressing the statutory precursor to 504(c):

“The phraseology of the section was adopted to avoid the strictness of construction incident to a law imposing penalties.”

The idea that statutory damages could be justifiably used to impose exemplary punishment on a civil copyright defendant crept into the law not from any word spoken by the Supreme Court of the United States, which was at pains to assure their non-penal nature, and was surely never articulated in any debate in the United States Congress. No Congress ever gave the giants of corporate copyright the power of to impose mandatory exemplary damages on an individual civil defendant, without debate or dissent. Such an interpretation of the statute would test the constitutional limits on congressional power.

The idea that statutory damages could be justifiably used to impose exemplary damages on a civil copyright defendant crept into the law by casual use of words in situations in which the significance of their use was not addressed, followed by repetition in the excellent briefs with which the plaintiffs supply the judges before whom they litigate.

Damages come in three flavors, compensatory, punitive against the individual, and exemplary, sending message out to others. Justice Roberts, referring to “penalties”, was not ruling out treble damage awards and the like to deter the defendant’s future conduct. He is speaking of exemplary damages, imposed on a defendant before the court to teach others a lesson. To so use federal civil process is wrong.


The plaintiffs legal theory rests on a two-legged stool. They pull the third leg out from under. Their strict liability copyright logic pulls them down.

The unmistakably three-legged structure of the statute allows mitigation if the copyright infringement is innocent, as in the case of one who has no understanding of copyright at all. Plaintiffs deny that this statutory category of innocence any longer exists. They base this on the bizarre claim that copyright notice posted on physical album covers in record stores eliminates the innocence of a digital downloader. Plaintiffs somehow persuaded a panel of the Fifth Circuit to accept this innocence-eliminating theory. Whitney Harper is presently asking the Supreme Court of the United States to review, with[link petition] Kiwi Camara as counsel to Ms. Harper and Charles Nesson as amicus.

But even if their bizarre theory that notice on a CD cover on an album in a record store should eliminate the innocence of a digital downloader is accepted, the innocence category of section 504(c) is still the bottom category, it mitigation still available against copyright holders who have not put notices on their album covers. The innocence (not knowing) category still exists, distinct from the two categories above it.

Now consider the top category. Plaintiffs say that willful infringement requires “no more than knowledge.”

This cannot be right. The immensely wide range of damage awards demands that the top category be comprised of elements more culpable. If the top category is “no more than knowing”, and the bottom category is “not knowing”, nothing is left in the middle. Plaintiffs try to make this the category of innocence now that they say the innocent category is gone.


Considering a Fair Penalty For Illegal File-sharing

An anonymous reader writes *** that $62,500 per song is excessively high seems to be something that everyone can agree on, but what actually is fair seems to be a big point of contention.”

At the St. Johns Music Conference i attended last week i quoted an article from Rolling Stone Magazine and posed two questions:

“At the heart of the approach France and Britain are taking is the so-called “graduated response,” by which ISP’s would be required to issue warnings to serious offenders to stop illegal file-sharing. This is the most sensible legislation to emerge in the past decade to deal with “free.” It is immeasurably better than the ugly alternative of suing hundreds of thousands of individuals.”

-Paul McGuinness (U2’s manager) – Rolling Stone, 9/10/2010

1. Which is the better approach to teaching children to pay for copyrighted music rather than downloading and sharing it for free?
(a) the U.S. response – strict liability, exemplary statutory punishment);
(b) the French/British graduated response – ISP termination of internet service;
(c) combination of (b) and (a);
(d) none of the above.

2. Could one formulate a graduated response strong enough to lead most users toward buying music rather than downloading free, yet with process so fair and sanctions so gentle that those on whom the sanctions fall (and their parents) would consider them fair?

Good Piece in the Register

World’s dumbest file-sharer guilty for third time

Everyone loses

By Andrew Orlowski

Orlowski observes:

Copyright and the statutory damages framework are unchanged – as they were after the Tenenbaum verdict, in which Nesson had vowed to “put the record industry on trial.” Thomas-Rasset maintains her innocence in defiance of all reason – part of the reason for the original guilty verdict three years ago was that her peers felt she was insulting their intelligence, and wasting public money by bringing such a weak case to court. The plaintiffs will never see the damages, and don’t want it anyway. The defendant’s lawyers have been working pro bono, so there’s an opportunity cost for them, too.

why are we in it

what are we fighting for


an addition to the Register piece – subsequent to the initial rejection of my amicus offering, Judge Davis accepted my amicus brief, asked the riaa to respond, to which, when they did, i replied. The issues are now finally coming clear. Four trials now demonstrate that the court’s misapplication of the copyright law predictably leads to wildly excessive unconstitutional verdicts. Something is obviously wrong.

Orlowski concludes, “Nobody has become richer, or wiser. And Thomas-Rasset insists it must drag on. ® “

One can see that Orlowski does not play poker. as bob seger sings in face the promise, you won’t stop there. game still on.


Another Draconian JURY Verdict — Groundhog Day — RIAA v. Jammie Thomas-Rasset

What follows are the judge’s instructions to the jury. Read them and you will begin to understand why juries return the draconian awards the riaa is able consistently to achieve.

This is an action for copyright infringement. A “copyright” is the exclusive right to copy. A copyrighted work can be a literary work, musical work, dramatic work, pantomime, choreographic work, pictorial work, graphic work, sculptural work, motion picture, audiovisual work, sound recording, architectural work, mask works fixed in semiconductor chip products, or a computer program.

The owner of a copyright generally has the right to exclude any other person from reproducing, preparing derivative works, distributing, performing, displaying, or using the work covered by copyright for a specific period of time. One who reproduces or distributes a copyrighted work during the term of the copyright, infringes the copyright, unless licensed by the copyright owner. In this case, a jury in an earlier trial determined that the plaintiffs are copyright owners or licensees of exclusive rights under United States copyright with respect to certain copyrighted sound recordings, which are listed on Trial Exhibit 1 and Trial Exhibit 2, and that the defendant, Jammie Thomas‐Rasset, infringed plaintiffs’ copyrights in these works by using an online media distribution system known as KaZaA to download the plaintiffs’ copyrighted recordings and to distribute the copyrighted recordings without the plaintiffs’ authorization or a license.

“Willful” means that a defendant had knowledge that her actions constituted copyright infringement or acted with reckless disregard of the copyright holder’s rights. You are hereby instructed that a jury in a previous trial has already determined that the defendant’s infringement of plaintiffs’ copyrights was willful. In this case, there is no issue as to the defendant’s liability for willful copyright infringement. As a result, your sole responsibility is to determine the amount of damages to be awarded to the plaintiffs for the defendant’s willful infringement of the plaintiffs’ copyrights.

In this case, each plaintiff has elected to recover “statutory damages” instead of actual damages and profits. A copyright holder may recover statutory damages even if it did not submit evidence regarding actual damages. Under the Copyright Act, each plaintiff is entitled to a sum of not less than $750 or more than $30,000 per act of infringement (that is, per sound recording downloaded or distributed without license). Because the defendant’s conduct was willful, then each plaintiff is entitled to a sum of up to $150,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just.

In determining the just amount of statutory damages for an infringing defendant, you may consider the willfulness of the defendant’s conduct, the defendant’s innocence, the defendant’s continuation of infringement after notice or knowledge of the copyright or in reckless disregard of the copyright, the effect of the defendant’s prior or concurrent copyright infringement activity, whether profit or gain was established, harm to the plaintiff, the value of the copyright, the need to deter this defendant and other potential infringers, and any mitigating circumstances.

The jury did just what it was told. There was no fair trial. If this is the jury trial the Seventh Amendment guaranteed then the Constitution needs to be rewritten.

24 times

US Copyright Group Spamigation

———- Forwarded message ———-
From: K.A.D. Camara

Date: Thu, Jun 3, 2010 at 10:04 AM
Subject: Re: US Copyright Group Spamigation – Invitation to fight
To: sikkim, Charles Nesson

We would be willing to represent a defendant willing to stand for all the other defendants as class representative. We have discussed this with eon, the dean of cyberspace.


On Wed, Jun 2, 2010 at 11:59 PM,

Dear Mr. Camara,

As you, no doubt, already know, there is a quiet wave of racketeering-like civil actions filed by a Virginia law firm of Kurtz, Dunlap, Grubb, and Weaver (also known as US Copyright Group). The massive scale of this fishing net is horrifying. “Pay us or we will sue” in absence of any real evidence seems to be predatory. For people who are innocent, the threat of a lawsuit alone is enough to start borrowing money from friends to pay to make this go away, although who can be sure that the agreement they are signing is anything but an invitation to further shake-downs?

You are a famous person in cyberspace. Your willingness to work pro bono on the lawsuit opposite of RIAA is impressive. In the age when attorneys side with big companies at the expense of the average Joe, your work is uplifting, to say the least.

Are there real remedies for the innocent average Joe or is paying these scumbags $1,500 (or $2,500 – if one does not respond within 21 days from the receipt of the first settlement letter) all one can do? This seems like an impossible preposition, especially in a country that claims to be equitable and money- and color- blind.

Do you still do pro bono? Someone has to take a stand. Could this be you?

Why is national news silent on this? Why doesn’t New York Times publish something? Why is all this so quiet? With a reported 50,000 people being milled in this machine, why isn’t there a massive outcry? This is not justice, this is extortion!

Please talk to me, am I the only one outraged by this?

Whitney HARPER Cert Petition Filed

here’s a link to the story

here’s a link to ben sheffner’s blog

here’s a link to phil hill’s blog

Will the Supreme Court Review the Case of the Innocent Infringer?

Whitney Harper has filed her petition for certiorari to the United States Supreme Court to review the Fifth Circuit’s judgment eliminating the innocent infringer defense for music downloaders. Under the ruling there are no innocent downloaders. All are subject to legal penalty and injunction without any need for jury trial.

here is the petition by Whitney Harper’s advocate, K. A. D. (Kiwi) Camara, HLS’02.

i have just read and commented on ben sheffner’s effort to minimize the significance of the case, and am about to twitter.

And now later, my comment on sheffner’s blog, which sheffner has not yet approved:

In pre-Internet 1988, the Berne Convention eliminated the notice and registration requirements previously thought essential to copyright. When the United States acceded to this convention, Congress recognized that this meant elimination of the legal need for notice on products that were not to be copied, and saw danger that innocent people would be made copyright infringers without knowing it. Congress addressed this risk by providing copyright holders incentive to post notice on their phonorecords, namely the elimination of the innocent infringer defense for copying the phonorecord. Users, in effect, were to be held responsible for reading the label before copying.

Congress provided:
“[i]f a notice of copyright in the form and position specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages . . . .”

The “access” of the statute clearly refers to the copyright notice on the phonorecord the user is copying. As Representative Carlos Moorhead (a principal sponsor of the House bill) noted, “[b]y retaining voluntary notice, all these bills acknowledge that for nearly 200 years U.S. copyright users have relied on the content of the copyright notice to distinguish protected from unprotected works . . . Notice is also one of the easiest deterrents to infringement available to copyright holders.”

The Fifth Circuit decision turns the statutory protection into a trap for the innocent instead of a protection, completely changing the intended meaning of the statute in a way that eliminates connection between the user in the act of infringement and notice to her that her act is infringing. The judgment effectively eliminates the innocent infringer defense for all internet downloading .

The Fifth Circuit’s decision puts the burden on internet users to search out copyright information on all music files accessible on the net.

Penalizing innocent infringers for downloading music blights creators of music who want to freely distribute their music. With means to determine that a given music file is not copyrighted, the only sensible rule for a law-abiding internet users to follow (and teach children to follow) is not to download free music at all.

delay in the appearance of this comment on ben’s blog my fault, not his.