Tuesday, January 14, 2014

Attacking the Victim: Let's Not Forget That Copyright Holders Have Rights Too!

Citing Congressional testimony today before the House Judiciary Committee from both David Nimmer and Glynn Lunney, the EFF takes another opportunity to trash the entire statutory damages regime under the U.S. Copyright Act.

Have there been some isolated high-profile abuses? No question. But the fact remains that statutory damages exist for very good reasons.  Because it may be difficult for the copyright holder to prove actual damages (think of a young and new struggling artist, who still has precious little in the way of sales to support her case for actual damages in the infringement of her copyrighted works) they should have the ability to elect to seek the range of damages specified under the Act.

Too often as well, the debate has been framed with the use of the proverbial "straw man"techniques. The big, bad multinational corporation going after the helpless, morally innocent individual blogger. For every such instance I know of at least as many cases of a small business whose hard-earned copyrighted works have been infringed upon by large corporate enterprises. In the absence of statutory damages, many of these start-ups, small businesses and other nascent enterprises would be further disadvantaged in the marketplace.

Casting this debate as some sort of Manichean struggle of good vs evil is not helpful in advancing the serious discourse of these very important issues.



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