Class 20 Copyright, Autumn, 2016 Enforcement and Damages 11/9/2018 Class 20 Copyright, Autumn, 2016 Enforcement and Damages Randal C. Picker James Parker Hall Distinguished Service Professor of Law Ludwig & Hilde Wolf Teaching Scholar The Law School The University of Chicago

Sec. 501: Infringement of copyright 11/9/2018 Sec. 501: Infringement of copyright (a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 121 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. November 9, 2018

Sec. 501: Infringement of copyright 11/9/2018 Sec. 501: Infringement of copyright (b) (b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411 [requiring registration before suit], to institute an action for any infringement of that particular right committed while he or she is the owner of it. November 9, 2018

Possible Remedies Actions to Management the Infringement 11/9/2018 Possible Remedies Actions to Management the Infringement Sec. 502: Injunctions Sec. 503: Impounding and destroying Sec. 509: Seizure and forfeiture November 9, 2018

Possible Remedies Criminal Sanctions Sec. 506 11/9/2018 Possible Remedies Criminal Sanctions Sec. 506 Title 18, Chapter 113: Stolen Property 18 USC 2319 18 USC 2319A 18 USC 2319B November 9, 2018

Sec. 504: Damages (a) In General. 11/9/2018 Sec. 504: Damages (a) In General. Except as otherwise provided by this title, an infringer of copyright is liable for either‑‑ (1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or (2) statutory damages, as provided by subsection (c). November 9, 2018

Sec. 504: Damages (b) Actual Damages and Profits. 11/9/2018 Sec. 504: Damages (b) Actual Damages and Profits. The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. November 9, 2018

Sec. 504: Damages (b) Actual Damages and Profits. 11/9/2018 Sec. 504: Damages (b) Actual Damages and Profits. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work. November 9, 2018

Sec. 504: Damages (c) Statutory Damages. 11/9/2018 Sec. 504: Damages (c) Statutory Damages. (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and November 9, 2018

Sec. 504: Damages (c) Statutory Damages. 11/9/2018 Sec. 504: Damages (c) Statutory Damages. severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work. November 9, 2018

11/9/2018 Sec. 504: Damages (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. November 9, 2018

11/9/2018 Sec. 504: Damages In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. November 9, 2018

Capitol Records v Thomas-Rasset KaZaA Business Model Two versions of the software: “Free” AdWare version Pay version: no ads, $29.95 November 9, 2018

Shared Folders in KaZaA From US v Shaffer, 472 F3d 1219 (10th Cir. 2007) “As Kazaa explains in its license agreement: ‘4.4 My Shared Folder. By saving a file in My Shared Folder, you understand that it will be available for any other user of Kazaa and compatible programs.” November 9, 2018

Shared Folders in KaZaA From US v Shaffer, 472 F3d 1219 (10th Cir. 2007) “These users may find your files and subsequently download them from you. By doing so your Internet connection is being used.’ End User License Agreements, http://guide.kazaa.com/us/eula.htm (last visited Dec. 11, 2006).” November 9, 2018

Disabling Sharing in KaZaA Section 4.4 of the EULA: “To disable sharing go to Tools->Options->Traffic and check Disable Sharing. To disable sharing of selected files right click the file in My Kazaa and select Stop Sharing this file. The Kazaa program is a peer-to-peer program; this means that it communicates with other peers (other Kazaa or compatible programs).” November 9, 2018

Disabling Sharing in KaZaA Section 4.4 of the EULA: “Other users may download files that you have stored in the My Shared Folder and other folders you have selected to be shared. Don't share files which are confidential, such as financial information, or which you do not have the right to distribute.” November 9, 2018

Info on Sharing in KaZaA From Shaffer: “Kazaa’s software also shows the user in real time exactly how many of his or her files are being accessed and copied by other Kazaa users.” November 9, 2018

The Copyright Violation in Thomas-Rasset Assume Thomas-Rasset places 24 songs in her KaZaA “My Shared Folder” Does that suffice to show a copyright violation? If not, what other information is required? If a download takes place and is infringing, who infringes? November 9, 2018

Applying 504(b) Here Thomas-Rasset has no profits How should we calculate actual damages? November 9, 2018

Three Jury Verdicts Verdict 1: Oct 2007 Verdict 2: June 2009 24 songs, $9,250 per song = $222,000 Verdict 2: June 2009 24 songs, $80,000 per song = $1,920,000 Reduced by the judge to $2,250 per song = $54,000 November 9, 2018

Three Jury Verdicts Verdict 3: Nov. 2010 24 songs, $62,500 per song = $1,500,000 Once again reduced by the judge to $2,250 per song = $54,000 November 9, 2018

Framing Statutory Damages Con Law Framing of Statutory Damages vs. Punitive Damages Williams, 251 US 64 (1919) An Arkansas statute provided for a penalty of between $50 and $300 for each situation in which a railroad charged a passenger more than the statute allowed. November 9, 2018

Framing Statutory Damages “The ultimate question is whether a penalty of not less than fifty dollars and not more than three hundred dollars for the offense in question can be said to bring the provision prescribing it into conflict with the due process of law clause of the Fourteenth Amendment.” November 9, 2018

Framing Statutory Damages “States still possess a wide latitude of discretion in the matter and that their enactments transcend the limitation only where the penalty prescribed is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable. ” No violation found in Williams November 9, 2018

Framing Statutory Damages Con Law Punitive Damages Framework in BMW v. Gore and State Farm. Three “guideposts”: “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and November 9, 2018

Framing Statutory Damages Con Law Punitive Damages Framework in BMW v. Gore and State Farm. Three “guideposts”: “(3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” How do we apply that here? November 9, 2018

Agence France Presse v. Morel Start with his website http://photomorel.com/ And then on Twitter https://twitter.com/photomorel November 9, 2018

Agence France Presse v. Morel Big Picture Questions: What Law Applies? Pictures take in Haiti by Haitian National; distributed through a variety of US and foreign media: which law should apply? Haitian law? US law? French law? Not today: Next Wednesday November 9, 2018

Agence France Presse v. Morel A Return to Burrow-Giles/Feist? What rights does Morel have in the photographs? Is this like Oscar Wilde? Something else? Are the events in Haiti facts under Feist? November 9, 2018

Agence France Presse v. Morel Ex Ante Organization of the Distribution of News Social Media and Distribution of Photographs Copyright Management Information under 17 USC 1202 November 9, 2018

November 9, 2018 AFP v Morel Jury Charge

November 9, 2018 AFP v Morel Jury Charge

November 9, 2018 AFP v Morel Jury Charge

November 9, 2018 AFP v Morel Jury Charge

November 9, 2018 AFP v Morel Jury Charge

November 9, 2018 AFP v Morel Jury Charge

AFP v Morel Jury Verdict November 9, 2018 AFP v Morel Jury Verdict

Sec. 505: Costs and Attorney’s Fees 11/9/2018 Sec. 505: Costs and Attorney’s Fees Text In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs. November 9, 2018

November 9, 2018 Kirtsaeng (U.S. 2016)

November 9, 2018 Kirtsaeng (U.S. 2016)

November 9, 2018 Kirtsaeng (U.S. 2016)

November 9, 2018 Kirtsaeng (U.S. 2016)

Happy Birthday to You: Building the Public Domain How do we add to the public domain? November 9, 2018

Happy Birthday Amended Complaint November 9, 2018 Happy Birthday Amended Complaint

Happy Birthday Amended Complaint November 9, 2018 Happy Birthday Amended Complaint

Happy Birthday Amended Complaint November 9, 2018 Happy Birthday Amended Complaint

Happy Birthday Settlement Website November 9, 2018 Happy Birthday Settlement Website

Happy Birthday Settlement Website November 9, 2018 Happy Birthday Settlement Website

Happy Birthday Settlement November 9, 2018 Happy Birthday Settlement

Happy Birthday Settlement November 9, 2018 Happy Birthday Settlement

Happy Birthday Attorney’s Fees Setup Not really a 505 case, but instead a more traditional common fund class action case situated in copyright Lodestar Calculation and Crosscheck November 9, 2018