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Eric V

@teksavvy.com
reply to jkoblovsky

Re: If Voltage Take Customers To Court File Sharing Is Legal!

Copyright infringement is actionable without any proof of economic harm. That's what the statutory damages section of the Copyright Act is for - a copyright owner may elect to seek statutory damages instead of having to prove actual loss.


jkoblovsky

join:2011-09-27
Keswick, ON
kudos:2

said by Eric V :

Copyright infringement is actionable without any proof of economic harm. That's what the statutory damages section of the Copyright Act is for - a copyright owner may elect to seek statutory damages instead of having to prove actual loss.

No stat damages awards are based on developing a number of compensation when clear economic damages can not be determined, however in order to qualify for those damages they have to show that there has been at least some economic impact. Economic data is showing that it's impossible to prove that any economic impact has occurred.

»musicbusinessresearch.wordpress.···aring-2/

Judges can't award damages if no economic impact has occurred. For that you would need "punitive" damage awards in which the Government rejected.

--
My Canadian Tech Podcast: »canadiantechnetwork.podbean.com/
My Self Help and Digital Policy Blog: »jkoblovsky.wordpress.com/

jkoblovsky

join:2011-09-27
Keswick, ON
kudos:2

To be a bit more specific and from the US accountability report on this:

»musicbusinessresearch.wordpress.···-piracy/

“Most experts we spoke with and reviewed the literature we observed that despite significant efforts, it is difficult if, not impossible, to quantify the net effect of counterfeiting and piracy on the economy as a whole.” (GAO-report, 2010: 15-16)."
That's why we have "trolls". Most cases in the US are based on "punitive" damage awards meant to punish people for breaking the law. Stat damage awards are economic.

funny0

join:2010-12-22
reply to jkoblovsky

said by jkoblovsky:

A Politically Correct Post on Copyright in Canada

»jkoblovsky.wordpress.com/2013/01···-canada/

Everyone thinks that by supporting Teksavvy’s case here going forward if successful will as David Ellis put it: “Run the Voltage fuckers out of town”. If that happens, that’s only temporary. Our copyright laws now get updated every two years, so every 2 years there’s going to be yet another test case of new law. What’s needed is a permanent solution in which politically, the government paved the path for in the new legislation. Something that has yet to be dared to be spoken of or tried because of social engineering by the media industries who are being politically incorrect. Politicians have already decoded themselves from this, and it’s important we do to and follow the path that’s before us for a more permanent solution.

Over the past couple of days, I’ve been following comments with respect to Jean-Francois Mezei a long-time independent policy expert. Mr. Mezie’s comments are extremely welcomed, and I’m fascinated by a lot of his comments with respect to this case. He does bring up some very good points, and he’s got a very good idea here that needs to be brought to light. In some recent comments on media policy expert Dwayne Winseck's blog, Mr. Mezei stated:

“More importantly, we need one good legal test of the actual copyright infringement aspect. So this requires Voltage sue an individual.”

This may seem harsh, but I 100% agree with that. That’s unlikely to happen though as we all know we’re looking at a troll Voltage. This post will explain the truth on why that is within policy and politics. Why would Voltage be stuck to troll? Why not sue? The government has made it extremely hard for companies to do that. There are questions that if a case got to court, would it actually be successful on behalf of the rights holders, and the reason for that is the economics of the situation. I’m pretty sure that economic harm has to be proven in order to obtain statutory damages.

Now Geist thinks that if a case were to go to court, stat damage awards would likely be around the $100 range because that would be closer to actual losses represented. Geist is pretty much coming to that assumption due to the fact that a download could be viewed as a sale lost. That's an argument that can't be proven because of the economics at play. Geist is being politically incorrect.

Back to Mr. Mezie:

“A real trial is when you not only cross examine Voltage/Canipre and Garda Ley, but also the whole issue of the bittorrent client doing automatic uploads, often without the user intentionally starting an upload.”

So let’s assume we’re looking at an individual trial where Voltage actual does sue. If a precedent was set, the results would pretty much be the same as what I’m about to argue, only the way Mr. Mezie argues it, it would be temporary not permanent. My politically correct comment:

“The economics of non-commercial infringement needs to be brought to light in a court setting. The independent academic view at least globally, supports the notion that media industries are in a cycle of creative destruction. A lot of my research over the years, indicates that it’s not non-commercial infringement that’s the problem, it’s the protectionism within copyright law around this subject due to ideological and political reasons that’s causing economic harm. There’s solid economic evidence that could and most likely would withstand a legal test as being not just credible but should be widely accepted as fact.”

Basically what this all means, is that no one can prove economic harm from a non-commercial download. There's huge amounts of independent research on that now to back that up. So much so it's becoming pathetic. All anyone has to do is ague the economic data, and non-commercial infringement becomes legal in Canada! This is why they are reduced trolling. If it gets to court the Government has made it clear they would legalize it!

My last comment to Mr. Mezie:

"Want to know how much economic data is out there supporting my arguments:

»musicbusinessresearch.wordpress.com/

Pertaining to the music industry, however the same relative theory of creative destruction can be applied to video content as well. The difference between the two, is that music has a value chain disconnect, and there are no economic impacts. Video has a viable value chain:

»jkoblovsky.wordpress.com/2012/12···rom-p2p/

Politically the government paved the path for this argument to be made in court with the new legislation. I think I helped in developing some of the economic understanding of the situation, during the consultations, and through some advocacy I did through Geist’s Fair Copyright for Canada movement. Politically. the path is there, and it’s meant to be taken and tested. So test it."

Knowing this why would you argue on how bittorrent works in court every 2 years? Why not just end all this and send all those “fuckers” out of town permanently!

Back to Mr. Mezie’s comments:

“Voltage may have no intentions of suing anyone and going to court against individuals. Its intentions may simply to generate scare publicity to make people affraid to view any Voltage products. And Teksavvy, by making the process more public and transparent may have actually played right into Voltage’s hand because everyone is talking about it.”

Because we are now talking about what's actually transpired in law and politics in the new legislation, Voltage just screwed it up for the entire media industry if this post snowballs. What a bunch of twits, seriously. Voltage your pictures suck, go back to the US. Canadians have each others backs, that's how we are up here.

Most of the important people in this debate have to be politically incorrect, unlike me who is politically correct because I have no one to answer too. I could care less about ruining my reputation, because the truth here is more important than that. The ethics of this are more important than me. We need more people like this not just in politics but in the academic world. There are too many egos, financial interests, personal interests in the copyright debates.

Even if Teksavvy sends Voltage packing, we still end up with copyright trolls through notice to notice thanks to those who have “very special” interests who advocated hard for that approach. So the next time you hear of someone accusing anyone of online piracy due to non-commercial infringement, you tell them they are being politically incorrect and send them to this post.

what glue are you on the law is nto updated every two years
its a clause that says in fact parliament must have a note on it in osme fashion to be addressed , THAT:
DOESN'T mean a new law every two years
IT doesnt mean court chaos
IT doesnt mean even every 5 years you get a law, its called a sunset clause for the charter cause parts of harpers legislation are deemed unconstitutional and he /they must go before parliament with a majority and allow it to continue. ALSO:
this means if they don't renew the areas then they become null and void
it means YOU then dont have sections like the TPM areas and other aspects that take away citizens rights for 80 years while some lazy person contributes but one thing per 80 years and gets to be the most vile human running around suing people.

I'll say this TALK TO A LAWYER dont listen to this kind of bullshit.

funny0

join:2010-12-22
reply to jkoblovsky

said by jkoblovsky:

A Politically Correct Post on Copyright in Canada

»jkoblovsky.wordpress.com/2013/01···-canada/

Everyone thinks that by supporting Teksavvy’s case here going forward if successful will as David Ellis put it: “Run the Voltage fuckers out of town”. If that happens, that’s only temporary. Our copyright laws now get updated every two years, so every 2 years there’s going to be yet another test case of new law. What’s needed is a permanent solution in which politically, the government paved the path for in the new legislation. Something that has yet to be dared to be spoken of or tried because of social engineering by the media industries who are being politically incorrect. Politicians have already decoded themselves from this, and it’s important we do to and follow the path that’s before us for a more permanent solution.

Over the past couple of days, I’ve been following comments with respect to Jean-Francois Mezei a long-time independent policy expert. Mr. Mezie’s comments are extremely welcomed, and I’m fascinated by a lot of his comments with respect to this case. He does bring up some very good points, and he’s got a very good idea here that needs to be brought to light. In some recent comments on media policy expert Dwayne Winseck's blog, Mr. Mezei stated:

“More importantly, we need one good legal test of the actual copyright infringement aspect. So this requires Voltage sue an individual.”

This may seem harsh, but I 100% agree with that. That’s unlikely to happen though as we all know we’re looking at a troll Voltage. This post will explain the truth on why that is within policy and politics. Why would Voltage be stuck to troll? Why not sue? The government has made it extremely hard for companies to do that. There are questions that if a case got to court, would it actually be successful on behalf of the rights holders, and the reason for that is the economics of the situation. I’m pretty sure that economic harm has to be proven in order to obtain statutory damages.

Now Geist thinks that if a case were to go to court, stat damage awards would likely be around the $100 range because that would be closer to actual losses represented. Geist is pretty much coming to that assumption due to the fact that a download could be viewed as a sale lost. That's an argument that can't be proven because of the economics at play. Geist is being politically incorrect.

Back to Mr. Mezie:

“A real trial is when you not only cross examine Voltage/Canipre and Garda Ley, but also the whole issue of the bittorrent client doing automatic uploads, often without the user intentionally starting an upload.”

So let’s assume we’re looking at an individual trial where Voltage actual does sue. If a precedent was set, the results would pretty much be the same as what I’m about to argue, only the way Mr. Mezie argues it, it would be temporary not permanent. My politically correct comment:

“The economics of non-commercial infringement needs to be brought to light in a court setting. The independent academic view at least globally, supports the notion that media industries are in a cycle of creative destruction. A lot of my research over the years, indicates that it’s not non-commercial infringement that’s the problem, it’s the protectionism within copyright law around this subject due to ideological and political reasons that’s causing economic harm. There’s solid economic evidence that could and most likely would withstand a legal test as being not just credible but should be widely accepted as fact.”

Basically what this all means, is that no one can prove economic harm from a non-commercial download. There's huge amounts of independent research on that now to back that up. So much so it's becoming pathetic. All anyone has to do is ague the economic data, and non-commercial infringement becomes legal in Canada! This is why they are reduced trolling. If it gets to court the Government has made it clear they would legalize it!

My last comment to Mr. Mezie:

"Want to know how much economic data is out there supporting my arguments:

»musicbusinessresearch.wordpress.com/

Pertaining to the music industry, however the same relative theory of creative destruction can be applied to video content as well. The difference between the two, is that music has a value chain disconnect, and there are no economic impacts. Video has a viable value chain:

»jkoblovsky.wordpress.com/2012/12···rom-p2p/

Politically the government paved the path for this argument to be made in court with the new legislation. I think I helped in developing some of the economic understanding of the situation, during the consultations, and through some advocacy I did through Geist’s Fair Copyright for Canada movement. Politically. the path is there, and it’s meant to be taken and tested. So test it."

Knowing this why would you argue on how bittorrent works in court every 2 years? Why not just end all this and send all those “fuckers” out of town permanently!

Back to Mr. Mezie’s comments:

“Voltage may have no intentions of suing anyone and going to court against individuals. Its intentions may simply to generate scare publicity to make people affraid to view any Voltage products. And Teksavvy, by making the process more public and transparent may have actually played right into Voltage’s hand because everyone is talking about it.”

Because we are now talking about what's actually transpired in law and politics in the new legislation, Voltage just screwed it up for the entire media industry if this post snowballs. What a bunch of twits, seriously. Voltage your pictures suck, go back to the US. Canadians have each others backs, that's how we are up here.

Most of the important people in this debate have to be politically incorrect, unlike me who is politically correct because I have no one to answer too. I could care less about ruining my reputation, because the truth here is more important than that. The ethics of this are more important than me. We need more people like this not just in politics but in the academic world. There are too many egos, financial interests, personal interests in the copyright debates.

Even if Teksavvy sends Voltage packing, we still end up with copyright trolls through notice to notice thanks to those who have “very special” interests who advocated hard for that approach. So the next time you hear of someone accusing anyone of online piracy due to non-commercial infringement, you tell them they are being politically incorrect and send them to this post.

and if i get a notice and have done nothing ill sue the troll right back.... I'LL force them to prove beyond a reasonable doubt i did something and when they cant ill add my pain and suffering so they never bother me again.

funny0

join:2010-12-22
reply to DanteX

said by DanteX:

Correction Assualting someone is a lesser crime as well .

no it isnt
you can do federal time for harming physically a person
and there are degrees like "aggravated" and "bodily harm"

Assault also includes rape...Are you saying rape of any kind is a lesser crime...

DanteX

join:2010-09-09
kudos:1

I think What I said was mis interpreted.

What I meant was punishments for so called copyright crimes are usually more severe then a crime where actually harm is caused to a person.



Tx
bronx cheers from cheap seats
Premium
join:2008-11-19
Mississauga, ON
kudos:12
Reviews:
·TekSavvy DSL
·FreePhoneLine
·Rogers Hi-Speed
reply to funny0

said by funny0:

said by DanteX:

Correction Assualting someone is a lesser crime as well .

no it isnt
you can do federal time for harming physically a person
and there are degrees like "aggravated" and "bodily harm"

Assault also includes rape...Are you saying rape of any kind is a lesser crime...

Read the whole thread and that of which he replied to. On that note, yes murder, rape and so on is sometimes punished far less then those who pirate copyrighted material. No one is dissecting which one is worse. It's what the punishments handed out that are a joke.

You know you can edit your post instead of putting in something you forgot and re-quoting the OP? You can also multi quote fairly easily by copy and pasting.


Eriv V

@teksavvy.com
reply to jkoblovsky


No stat damages awards are based on developing a number of compensation when clear economic damages can not be determined, however in order to qualify for those damages they have to show that there has been at least some economic impact. Economic data is showing that it's impossible to prove that any economic impact has occurred.

»musicbusinessresearch.wordpress.···aring-2/

Judges can't award damages if no economic impact has occurred. For that you would need "punitive" damage awards in which the Government rejected.


This is incorrect. No proof of economic harm whatsoever is required to prove copyright infringement, or for an award of statutory damages. Copyright infringement is still illegal even if it doesn't cause pecuniary loss.

Part of the policy intent of the Copyright Act is not only to allow copyright owners to profit from their works, but to allow for limited control over their works as well.

Courts may consider actual harm to the plaintiff, among other factors, when deciding what amount of statutory damages is appropriate. This does not make statutory damages "punitive", in legal terms (though it may be punitive in your opinion).

MaynardKrebs
Heave Steve, for the good of the country
Premium
join:2009-06-17
kudos:4
reply to m3chen

said by m3chen:

@MaynardKrebs:

I do respect your position on the rights of Copyright Holders but I would like to hold the copyright "trolls" accountable to the Blackstone ratio as it most certainly applies in this case;

"Better that ten guilty persons escape than that one innocent person suffer." - Sir William Blackstone (1765)

Yes, I know - I posted exactly that several weeks ago.


TOPDAWG
Premium
join:2005-04-27
Midland, ON
kudos:3
Reviews:
·TekSavvy DSL
reply to jkoblovsky

will they really bother taking people to court even if they get you're info i say no. The big company's in the US go to court every once and a while just to send a message and get headlines but really it's rare for them to sue anyone.

By the time Voltage takes someone to court here in Canada they'll lose money more then likely.


MaynardKrebs
Heave Steve, for the good of the country
Premium
join:2009-06-17
kudos:4

said by TOPDAWG:

By the time Voltage takes someone to court here in Canada they'll lose money more then likely.

Unless they target ISP's which hand out customer information without a court order (ie. just about everyone except TSI).


TOPDAWG
Premium
join:2005-04-27
Midland, ON
kudos:3

well I see them doing what they do in the US. Targeting a few people and making sure you hear news stories about it.


jkoblovsky

join:2011-09-27
Keswick, ON
kudos:2
reply to Eriv V

said by Eriv V

This is incorrect. No proof of economic harm whatsoever is required to prove copyright infringement.

Courts may consider actual harm to the plaintiff, among other factors, when deciding what amount of statutory damages is appropriate.

You just contradicted yourself my friend. Please explain further, with your name and position attached.
--
My Canadian Tech Podcast: »canadiantechnetwork.podbean.com/
My Self Help and Digital Policy Blog: »jkoblovsky.wordpress.com/

tired

join:2010-12-12
Reviews:
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reply to MaynardKrebs

said by MaynardKrebs:

Unless they target ISP's which hand out customer information without a court order (ie. just about everyone except TSI).

Uh, no Canadian ISP will hand out customer information without a court order.


A Lurker
that's Ms Lurker btw
Premium
join:2007-10-27
Wellington N
reply to tired

said by tired:

Now I'm thinking that in our society personal copyright infringement has always been acceptable and part of fair use, and that it is wrong for us to allow technology to automatically bestow rights on the content creators that they didn't have before.

The thing is that so much has changed, so quickly in the grand scheme of thing. 20 years ago we were recording albums onto cassette tapes, and television shows on to VHS tapes. Okay, mid-90s you might have been using CDs. So copying was awkward, resulted in loss of quality, and involved cost to the person copying. The running joke when I was in high school was that you needed to date someone long enough to copy their albums (then tapes).

Today you can take that music or video, copy it with almost no loss of quality and share it with thousands almost simultaneously. The copy costs the person doing the copy next to nothing. ie. maybe overage charges, maybe another hard drive - but only if doing high volumes. That's what has changed.

You can buy a copy of a book and after you've read it you pass the single copy to someone else. If you want to retain the copy you need to physically copy it. Now, switch it to electronic and again, fast multiple copies. Add the internet to it and how many copies can be distributed from a single purchase?

I've said in a couple of different instances that the distribution models need to change. Providers such as Hula, Netflix, and Pandora are starting to make some changes (and that's where we need to head). Of course Canadian licensing likely means people will still want to break the law and sign in using VPNs. To complicate things more our major service providers are in conflict as they want us to buy TV from them.

With better (and more reasonable licensing) wouldn't it be great to subscribe to Cogeco online TV? Favourite shows available on their conventional air dates, everyone would know exactly how many times each and every show was viewed. Hell, embed ads and you can collect even more revenue. I might actually 'turn on' the TV more. I've watched more since I subscribed to Netflix.

MaynardKrebs
Heave Steve, for the good of the country
Premium
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reply to tired

said by tired:

said by MaynardKrebs:

Unless they target ISP's which hand out customer information without a court order (ie. just about everyone except TSI).

Uh, no Canadian ISP will hand out customer information without a court order.

There are a couple who did within the last few months of 2012.

tired

join:2010-12-12
Reviews:
·TekSavvy Cable
·TELUS

said by MaynardKrebs:

There are a couple who did within the last few months of 2012.

No, there was a court order in those instances. The primary difference* is that TSI showed up in court to say they weren't going to oppose the motion while the other ISPs saved themselves the lawyer fees by staying home.

(*Yes, I know they also introduced a delay into the process so they could notify their affected customers in case they wanted legal representatives there, but nobody did)

EricV

join:2013-01-15
Nepean, ON
reply to jkoblovsky

You just contradicted yourself my friend. Please explain further, with your name and position attached.

You misunderstand - Courts may use actual economic harm as one of several factors in determining whether to award the minimum or maximum amount of statutory damages, or anywhere in-between. Proof of such harm is not required to prove copyright infringement itself, nor is it required to collect statutory damages if a copyright owner makes the election for statutory damages pursuant to s. 38.1 of the Copyright Act.

Such proof may just increase the amount of damages that a Court may award. This is why Prof. Geist speculated that a Court will only likely award the minimum of $100 - proof of harm is unlikely to exist, or at least would be very difficult to produce. A Court cannot decide that because there was no economic harm, the infringement was "legal" and award no damages, as you seem to suggest.

Don't take my word for it, read the Copyright Act.

27. (1) It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do.

Reproducing a work is such an infringement (s. 3), unless an exception such as fair dealing applies.

Nowhere in the Act is proof of economic harm required to prove copyright infringement. This is further supported by the fact that damages are not the only remedy a Court may award -an award of an injunction against future copying, or an order to destroy offending copies are other remedies are Court may give.

jkoblovsky

join:2011-09-27
Keswick, ON
kudos:2

(s. 38.1). The Act sets out that the Court should consider all relevant factors, including (but not limited to):

(a) good faith or bad faith of the defendant;
(b) conduct of the parties before and during the proceedings;
(c) the need for deterrence (with respect to the copyright in question);
(d) the need for an award to be proportionate to the infringement, including consideration of hardship, whether the infringement was for private purposes, and the impact of the infringements on the plaintiff.
In a case that would set a precedent going forward,

(a) good faith or bad faith of the defendant;

Needs to be tested to determine that precedent going forward. It's a contradiction, economics would be argued at that time. Not willing to argue any more legal points on this until you sign your name to it.
--
My Canadian Tech Podcast: »canadiantechnetwork.podbean.com/
My Self Help and Digital Policy Blog: »jkoblovsky.wordpress.com/

jkoblovsky

join:2011-09-27
Keswick, ON
kudos:2

1 edit

Sorry Both (a) and (d) the need for an award to be proportionate to the infringement, including consideration of hardship, whether the infringement was for private purposes, and the impact of the infringements on the plaintiff.

Are augments that can be made to set up for the economic test.


jkoblovsky

join:2011-09-27
Keswick, ON
kudos:2
reply to jkoblovsky

Say Hi to Geist for me I recognize the style


EricV

join:2013-01-15
Nepean, ON
reply to jkoblovsky

said by jkoblovsky:

(s. 38.1). The Act sets out that the Court should consider all relevant factors, including (but not limited to):

(a) good faith or bad faith of the defendant;
(b) conduct of the parties before and during the proceedings;
(c) the need for deterrence (with respect to the copyright in question);
(d) the need for an award to be proportionate to the infringement, including consideration of hardship, whether the infringement was for private purposes, and the impact of the infringements on the plaintiff.
In a case that would set a precedent going forward,

(a) good faith or bad faith of the defendant;

Needs to be tested to determine that precedent going forward. It's a contradiction, economics would be argued at that time. Not willing to argue any more legal points on this until you sign your name to it.

Yes. Those factors are used to determine how the Court exercises its discretion in awarding the amount of statutory damages, as set out at the beginning of that subsection. The Court's discretion, set out in section 38.1, is the quantum of damages awarded, somewhere between the minimum and maximum ($100 to $5000 in a non-commercial case). This is what I've said three times now.

The statutory damages section does not allow the Court to use the considerations you've listed to determine whether there was, in fact and in law, copyright infringement. Nowhere does the section allow for an award of $0, or a determination that the infringement alleged is legal because there wasn't economic harm.

There is no doubt that economic arguments can be meaningful in the damages awarded in copyright infringement cases, but the apparent broad claim of your topic is patently false. It is not legal to infringe copyright simply because the rights-holder cannot prove economic harm.

The difficulty or impossibility of proving harm in some cases is exactly the conundrum the statutory damages section was intended to resolve - if you can't prove harm, you, at the very least, get $100 as nominal damages for your copyright being infringed.

As a side note, there is one other area of copyright law where an economic argument is meaningful. In determining fair dealing, Courts will consider the "effect of the dealing on the work" - meaning the market for the work - as one of a six-part fairness test outlined in CCH v. LSUC.

~ Eric V.

jkoblovsky

join:2011-09-27
Keswick, ON
kudos:2

2 edits

Yes. Those factors are used to determine how the Court exercises its discretion in awarding the amount of statutory damages
Exactly, and that's where the economic test is in this law! Under section d. You said.

The statutory damages section does not allow the Court to use the considerations you've listed to determine whether there was, in fact and in law, copyright infringement. Nowhere does the section allow for an award of $0, or a determination that the infringement alleged is legal because there wasn't economic harm.
I disagree with your interpretation. If there is a $0 award then the damages become punitive, case dismissed. Legal arguments around this need to be tested in court.
--
My Canadian Tech Podcast: »canadiantechnetwork.podbean.com/
My Self Help and Digital Policy Blog: »jkoblovsky.wordpress.com/

EricV

join:2013-01-15
Nepean, ON

said by jkoblovsky:

Yes. Those factors are used to determine how the Court exercises its discretion in awarding the amount of statutory damages
Exactly, and that's where the economic test is in this law! Under section d. You said.

The statutory damages section does not allow the Court to use the considerations you've listed to determine whether there was, in fact and in law, copyright infringement. Nowhere does the section allow for an award of $0, or a determination that the infringement alleged is legal because there wasn't economic harm.
I disagree with your interpretation. If there is a $0 award then the damages become punitive, case dismissed. Legal arguments around this need to be tested in court.

There cannot be a $0 award - the minimum is $100 for non-commercial infringement. Damages don't "become punitive" - you may think damages are unfair if there's no economic harm, but a Court cannot simply decide the Copyright Act is unfair and ignore its clear wording.

Punitive damages are awarded in rare cases where is there is particular malice or a need to set an example involved. They have no connection to statutory damages.

jkoblovsky

join:2011-09-27
Keswick, ON
kudos:2

4 edits
reply to jkoblovsky

Sorry, let me rephrase, it can be argued that if there is no economic harm, than damages become punitive. Stat damage awards are based on difficulty in determining actual harm. But if there is no actual harm that has been committed, than damages become punitive as a result. There's now an abundant amount of solid economic evidence, no harm has been committed from non-commercial infringement. It's getting that economic data tested in. And I strongly believe the new legislation allows for that test, and the reason for the trolls.

In any case we wouldn't be able to settle this here. That would have to be for a judge to decide, but essentially that's the legal argument going forward.
--
My Canadian Tech Podcast: »canadiantechnetwork.podbean.com/
My Self Help and Digital Policy Blog: »jkoblovsky.wordpress.com/


EricV

join:2013-01-15
Nepean, ON

said by jkoblovsky:

Sorry, let me rephrase, it can be argued that if is no economic harm, than damages become punitive. Stat damage awards are based on difficulty in determining actual harm. But if no actual harm has been committed, than damages become punitive as a result.

In any case we wouldn't be able to settle this here. That would have to be for a judge to decide, but essentially that's the legal argument going forward.

That isn't a legal argument - it's a misuse of legal jargon. "Damages becoming punitive" is neither a real thing, nor a defence to copyright infringement. Unfair isn't the same thing as punitive - nor is it within a Court's discretion to not apply the law because it thinks it's unfair. It sounds like you're trying to make some sort of rights-based claim along the lines of a Charter argument, but that would be a huge stretch.

If a Court finds non-commercial copyright infringement, and the plaintiff has elected to seek statutory damages, the Court must award a minimum of $100. There is no other way to read the Copyright Act.

Statutory damages are specifically designed to be awarded even if there is no proof of economic harm. That is why they are specifically set apart from compensatory damages (s. 35(1)) in the Copyright Act - compensatory damages are meant to compensate for actual harm.

Statutory damages are more analogous to a "fine" for copyright infringement. It could well be that Parliament intended statutory damages to have an element of punishing the infringer - but this would not invalidate the law.

jkoblovsky

join:2011-09-27
Keswick, ON
kudos:2

Define the difference between statutory and punitive damages in law.


jkoblovsky

join:2011-09-27
Keswick, ON
kudos:2
reply to jkoblovsky

Also: "Damages becoming punitive" is neither a real thing, nor a defence to copyright infringement"

That's an ideological point of view, just so readers know what you are currently arguing.


EricV

join:2013-01-15
Nepean, ON

said by jkoblovsky:

Also: "Damages becoming punitive" is neither a real thing, nor a defence to copyright infringement"

That's an ideological point of view, just so readers know what you are currently arguing.

It is not - it is the legally uncontroversial wording of the Copyright Act. The Copyright Act (and its regulations) represents the complete law of copyright in Canada (s. 89). All defences available to a defendant accused of copyright infringement are within the Act itself.

I guess I'm out of ways as to how to explain it, but it is simply a matter of fact that copyright infringement is actionable per se, which means it forms a complete cause of action without proof of harm. Several torts do not require proof of damage to be actionable - libel, trespass to land, battery, etc. Copyright infringement is just one more.

Moreover, courts routinely award non-pecuniary damages without them being "punitive damages" - a fortiori, calling something "punitive" is not a legally recognized defence to any tort.