Leading copyright scholar says DoJ gets it wrong in downloader lawsuits

Pamela Samuelson, one of America's leading copyright scholars, has published a working paper arguing that the DoJ's and RIAA's theory for calculating damages in downloader lawsuits is flawed:
A working paper coauthored by noted copyright law scholar Prof. Pamela Samuelson of the University of California Law School discusses, in depth, various issues regarding statutory damages under the Copyright Act.

Among other things, the paper concludes that the State Farm/Gore due process test is applicable to statutory damage awards under the Copyright Act, a position which is consistent with the position taken in the amicus curiae brief filed by the Free Software Foundation in SONY BMG Music Entertainment v. Tenenbaum, and inconsistent with the positions taken by the Department of Justice in Tenenbaum and in SONY BMG Music Entertainment v. Cloud

Working paper by Prof. Samuelson on Copyright Act statutory damages argues Gore due process test applicable to statutory damages (via /.)


  1. A question for all you barristers out there:

    When dealing with the recent spate of bat-shit crazy copyright legislation winding it’s way through seemingly every legislature in the world:

    Is it better to lobby to defeat these things in the legislatures, and have our fearless leaders repeatedly re-try to pass them…


    After they become law attempt to have them overturned by the courts, which in theory should help prevent further attempts at trying to pass similar laws, because governments will know that it will be struck down based on precedent by the first judge that rules on them?

    My first answer is of course both, but IA(most definitely)NAL (not that there is anything wrong with that!) Source:Seinfeld of course!

  2. Both.

    A law getting struck down in the courts is no guarantee that a legislator won’t just try and word the next bit of legislation around the bounds set in the judicial opinion, and so long as the legislator has enough constituents or donors who are happy to see him or her push the legislation, it certainly doesn’t hurt to introduce it again. (How much time and energy they put into getting it through to passage is another story). So there’s no reason to let up on the legislative front.

    Also, it’s a hell of a thing to try and get legislation passed when you don’t have an established lobbying presence or a no-brainer, popular issue. Copyleft, sadly, isn’t quite to that point yet. So getting laws passed to rebalance copyright over the wishes of the content industries is an unsure thing at best. Thus, targeting existing laws via litigation to push back at some of the craziness already there is absolutely necessary. Not to ,mention the fact that perfectly reasonable laws can be twisted by bad cases into meaning something completely unintended. Meaning there’s always a role for good courtroom advocacy.

    Plus, the two fronts require different sets of resources and skill sets. Not only are different methods used, but different perspectives.

    From the point of a litigator, you’re trying to get the law interpreted in the best possible way, but the law is the law. Unless it’s somehow unconstitutional, what’s been passed by Congress is what you’ve got to work with. That, and the controlling precedent set by higher courts in earlier decisions. You can argue how your set of facts is different from those in earlier cases, but you’re still a bit more constrained.

    In arguing about legislation, you can argue policy. You can go to legislators and ask them what sort of world they’d like to see, informed by more basic principles like fairness, proportion, and the promotion of culture, and not whether or not the use of a particular phrase in the majority’s opinion in Sony v. Universal means you have a case or not.

    arg. sorry to ramble.

  3. As a “barrister”, i.e. a litigator, I have no expertise in lobbying. I just fight cases one by one.

    From my experience, when encountering injustice, it is best to fight on every front, with whatever you have.

    E.g., if every French citizen opposed to the Third Reich invading France (i.e. virtually every French citizen) had fought with whatever was available to them, wherever it was available to them, in every door post and every stairway and every back alley and from behind every tree and rock, the invasion would never have succeeded.

    So I say fight the RIAA everywhere: (a) in the market place, check out riaaradar.com and make sure you never again buy an RIAA-tainted product; (b) on the internet: blog, twitter, email, whatever you like to use; (c) if you can afford it give financial support to people fighting RIAA; (d) if you are in their sights yourself, fight back; (e) write to congresspeople and to Prez; (f) write to newspapers, magazines, and whatever.

    There is no single best way to fight them. Fight them with whatever you have from wherever you are.

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