Published Articles
  1. Why It’s Difficult to Predict the Amount of Statutory Damages Plaintiff Will Be Awarded in Copyright Litigation-Revised Version

    Why It’s Difficult to Predict the Amount of Statutory Damages Plaintiff Will Be Awarded in Copyright Litigation-Revised Version

             
    Mastering Rubik’s Cube may be easier. Predicting the amount of statutory damages that will be awarded in copyright infringement litigation continues to confound attorneys on both sides of the fence. Why? Here are some reasons.
    But first a few words of explanation.  I originally wrote this post in April of 2010. I decided to update it after some of the cases I mentioned went through further appeals and retrials.  I kept the same title (so you may see the earlier version come up on Google searches) but I substantially rewrote this version.

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  2. The First Circuit’s Decision in Sony v. Tenenbaum is a Welcome Victory for Copyright Holders  In Copyright Infringement Cases

    The First Circuit’s Decision in Sony v. Tenenbaum is a Welcome Victory for Copyright Holders In Copyright Infringement Cases

     
    Copyright creators should applaud the First Circuit’s decision in Sony v. Tenenbaum. Although the holding is narrow, the balance of the opinion is a resounding victory for copyright enforcement.
    District Judge Nancy Gertner in this case held unconstitutional a jury award of statutory damages even though the award was within the statutory range that Congress had set.

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  3. Arista Records v. Lime Wire: Did the Record Companies Forfeit the Right to Collect from Lime Wire As Much as $15.6 Million By Recovering Less than $48,000 from Other Infringers in Earlier Actions?

    Arista Records v. Lime Wire: Did the Record Companies Forfeit the Right to Collect from Lime Wire As Much as $15.6 Million By Recovering Less than $48,000 from Other Infringers in Earlier Actions?

     
    Lime Wire continues to educate regarding statutory damages. The latest novel issue it decided is whether a judgment for statutory damages against an individual infringer for copyright infringement of a work in one action bars a statutory award in a second action against a secondarily liable defendant who induced that infringement. In other words where two (or more) infringers are jointly and severally liable, does recovery of an award of statutory damages against one infringer in one action bar a statutory award against the other infringer in a second action.

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  4. Arista Records v. Lime Wire Answers Some Novel Questions re Statutory Damages In Copyright Litigation

    Arista Records v. Lime Wire Answers Some Novel Questions re Statutory Damages In Copyright Litigation

     
    The Arista Records v. Lime Wire litigation in the Southern District of N.Y., headed for a jury trial in early May, is a statutory damages tutorial. Judge Kimba Wood  has decided a number of issues of first impression dealing with the availability of statutory damages in copyright litigation involving secondary and joint and several liability. The statutory damage issues, now answered, include:
    1.

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  5. John Marshall Law School Center for Intellectual Property Law on February 25

    John Marshall Law School Center for Intellectual Property Law on February 25

    Andrew will be speaking in Chicago at John Marshall Law School’s 55th Annual Intellectual Law Conference on Friday February 25. His topic will be constitutional challenges to statutory damages for copyright infringement. He will focus on the Tenenbaum and Thomas-Rasset cases. Here is his article on the Tenenbaum case he prepared for the talk. It urges that the jury verdict be reinstated.

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  6. Sony v. Tenenbaum: What Are the Due Process Limitations on Awards of Statutory Damages in Copyright Litigation?

    Sony v. Tenenbaum: What Are the Due Process Limitations on Awards of Statutory Damages in Copyright Litigation?


    First Circuit review of Judge Gertner’s decision in Sony BMG v. Tenenbaum is in sight with argument set for April 4. In that copyright infringement case, the district court did what no court had ever done before. It threw out a jury award of $675,000 in statutory damages on due process grounds even though the award was within the statutory range set by Congress.  The court instead awarded the music labels $67,500 for Tenenbaum’s near-decade of music downloading.

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  7. More on Agence France v. Morel: A Publisher May Now Face a DMCA Claim For Removing Almost Any Copyright Management Information Even If It Was Not on the Work Itself

    More on Agence France v. Morel: A Publisher May Now Face a DMCA Claim For Removing Almost Any Copyright Management Information Even If It Was Not on the Work Itself

     
    The Agence France decision may be even more important because of its expansive interpretation of what constitutes copyright management information under the Digital Millennium Copyright Act (“DMCA”). Copyright management information (“CMI”), defined in 17 U.S.C. § 1202(c), includes the work’s title, author or copyright owner and the terms and conditions governing the use of the work.
    As mentioned in my earlier post, Morel placed on his TwitPic page a number of Haiti earthquakes photos.

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  8. My Podcast on Sony BMG v. Tenenbaum Sponsored by Suffolk Law School

    My Podcast on Sony BMG v. Tenenbaum Sponsored by Suffolk Law School


    Sony BMG  v. Tenenbaum

    Here is the audio of the nine minute podcast I recently did for Suffolk University Law School discussing the district court’s decision in Sony BMG v. Tanenbaum and its impact on copyright enforcement if not overturned on appeal. If for some reason you can’t listen to it here, Legal Talk Network also posted the podcast here.

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  9. Sony BMG v. Tenenbaum: Are File-Sharing Willful Infringers in Copyright Litigation Now a Judicially Protected Class?

    Sony BMG v. Tenenbaum: Are File-Sharing Willful Infringers in Copyright Litigation Now a Judicially Protected Class?

     
    I know the title sounds a bit  provocative.  But the opinion in Sony BMG v. Tenenbaum protects a willful music downloader in copyright infringement litigation based on a bizarre interpretation of the Digital Theft Deterrence Act of 1999. Here is my article published in a recent BNA Patent Trademark & Copyright Journal (respectfully) critical of the court’s opinion.

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  10. Sony BMG v. Tenenbaum: Are Willful Infringers In Copyright Litigation Now Judicially Protected?

    Sony BMG v. Tenenbaum: Are Willful Infringers In Copyright Litigation Now Judicially Protected?


    On July 9, Judge Nancy Gertner in Sony BMG v. Tenenbaum did what no court has ever done before. The court held unconstitutional an award of statutory damages in copyright litigation even though the award was within the statutory range set by Congress. This ruling, if affirmed on appeal, will change the shape of copyright litigation for years to come.

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