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April 10, 2009

Pam Samuelson on excessive copyright infringement awards

The abstract of a new paper by the pioneering Pam Samuelson and Tara Wheatland:

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.

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October 28, 2008

Linking to defamation is not defamation

A Canadian court has decided that linking to a defamatory page is not itself an act of defamation. It does leave admit exceptions, such as repeating the content of the defamatory passage or linking the phrase “The truth about Wayne Crookes is found here.”

The chilling effect if the court had decided otherwise would have been positively arctic.

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May 6, 2008

[berkman] David Ardia: Citizen Media Law Project

David Ardia is giving a Berkman lunch talk on the Citizen Media Law Project. David begins by acknowledging his colleagues on the project, which has been student-driven to a large degree. [Caution Live-Blogging: I’m missing things, getting them wrong, etc. You will be able to see the session itself at Media Berkman. ]

David begins by looking at, a citizen journalism, the neurodiversity weblog, and wikileaks. These sites have come to the attention of CMLP because they are citizens media sites that have little or no journalism training, little or know knowledge of media law, and not a lot of money. The CMLP grew out of a desire to provide resources for groups like these. (Dan Gillmor was one of the forces behind this, says David.)

CMLP began in April 2007, got a Knight News Challenge Award in May, published its legal threats database in Nov, launched their legal guide in Jan. 2008, and in Feb. did its first amicus filing (for Wikileaks).

The legal guide site has lots and lots of material in it, covering six topics: forming a business and getting online, dealing with online legal risks, newsgathering and privacy, access to government info, intellectual property, and risks associated with publication. There are 5-10 topics under each of these. There’s a lot there.

David walks through the site. There is a rich variety of ways of finding and browsing. In David’s example, the site explains how to create a non-profit corp., and actually steps you through the process, including the specifics for the fifteen states the guide covers so far.

The legal threats database has 25 attributes by which it can be searched. Users can contribute their own entries, although most come in through email. (They also import data from the Chilling Effects site.) The database does not make judgments about the threats. There are 467 entries in the database. Over half are law suits. They include threats to bring criminal charges (16) or to bring disciplinary action (18); that last is included because the legal system backs up the contracts that permit disciplinary action. David explains that the site takes an inclusive approach since you can easily narrow your queries to the areas that interest you. [A good “miscellaneous” principle!]

Factoids: California, which has 12% of the population, is the source of 21% of the threats. 30% of the legal claims are for defamation. Copyright infringements come in second with 8%.

93 of the law suits are pending. 40 settled. The plaintiffs got an injunction in 16 of the cases and won their cases 13 times. That’s not a lot out of more than 250 cases. David says that these sorts of results are fairly normal for law suits, although (he adds) these tend to be emotion-driven litigations, not money-driven.

David gives us a tour of the iBrattleboro case entry. It’s a very well-organized, thorough research on the topic.

David ends by posing some questions for expanding the database and opening it up. [Tags: ]

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April 24, 2008

Citizen Media legal guide

The Berkman Center’s Citizen Media Law Project has a site that’s rich with information, written in non-legalese, about your rights and liabilities as a blogger (and general citizen media person) in the U.S. There’s lots to browse there, and it’s all quite concise and helpful.

For example, the section on whether it’s legal to record a phone call you’re having with someone else says, in part:

Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. See 18 U.S.C. 2511(2)(d). This is called a “one-party consent” law. Under a one-party consent law, you can record a phone call or conversation so long as you are a party to the conversation. Furthermore, if you are not a party to the conversation, a “one-party consent” law will allow you to record the conversation or phone call so long as your source consents and has full knowledge that the communication will be recorded.

In addition to federal law, thirty-eight states and the District of Columbia have adopted “one-party consent” laws…

This is an excellent resource.

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