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1 edit | reply to jkoblovsky
Re: If Voltage Take Customers To Court File Sharing Is Legal! 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. | |
| 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. | | |
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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.
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My Canadian Tech Podcast: »canadiantechnetwork.podbean.com/
My Self Help and Digital Policy Blog: »jkoblovsky.wordpress.com/
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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. | |
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/
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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. | |
| Define the difference between statutory and punitive damages in law. | |
| 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. | |
 JGROCKYPremium,VIP
join:2005-05-19
Chatham, ON | reply to jkoblovsky
Haven't weighed in on any of the voltage stuff to date as many varying good points can be made for IP accuracy, guest access in offices, etc, but the funny of this all is Voltage, in my mind, has completely missed their opportunity at hand! The "sampling" affect is huge if the product is decent. Look no further the Gagnam Style from Psy.... His video was the most viewed on youtube. Did he have lost sales, maybe, but without releasing over youtube and having it go viral, there's no way that song would have made him the millions it did in the world, never mind North America! If it's a crap video, if it's to have any chance of decent money, viral is the only way to go!
Unless someone is pirating for the purpose of sale, the $20-$50, or $100 (pick a number) value of potential (very arguable) damages are frankly quite likely to be outweighed by the risked cost of anyone fighting, and just as likely winning!
... Who's to say frank didn't torrent the movie monday, love it and buy it tuesday! How will the court rule then?!
I have many movies sitting on my itunes/apple tv account that were purchased after viewing it at a friend's......for free! Woops, yet another lost income moment for voltage!? | |
| reply to jkoblovsky
»en.wikipedia.org/wiki/Punitive_damages
"Punitive damages or exemplary damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. Although the purpose of punitive damages is not to compensate the plaintiff, the plaintiff will in fact receive all or some portion of the punitive damage award."
»en.wikipedia.org/wiki/Statutory_damages
"Statutory damages are a damage award in civil law, in which the amount awarded is stipulated within the statute rather than being calculated based on the degree of harm to the plaintiff. Lawmakers will provide for statutory damages for acts in which it is difficult to determine a precise value of the loss suffered by the victim."
What I don't understand is how Statutory damages can be used in a way, where if no harm is proven awards are dished out. By definition that's punitive. That's where this is all coming from. I'm not a lawyer
I still believe though that the economics of the situation has been intended to be argued in court, and economic data needs to be brought to light. I think "copyright infringement" needs to be taken off of the table when we are talking about non-commercial infringement, especially if there's no economic harm, and there actually could be an economic benefit to it moving forward.
When you look at the politics of this, it just seems we're in the same position as we were before, legalized but illegal. Meaning, realistically in law, nothing is going to be done as a result of the infringement. Technically yes, they can but realistically no they can't. Government seems to have made it extremely hard, to do that, and rather chose a direction to social engineer going forward. I don't agree with that direction. That was my main issue with Geist. It's illegal in name, but nothing is going to be done about it, and we'll just troll you on notice to notice. Why not just do the politically correct thing, and legalize it? Anyways, just my thoughts, thanks for the legal spare. Will regroup and rearm.
--
My Canadian Tech Podcast: »canadiantechnetwork.podbean.com/
My Self Help and Digital Policy Blog: »jkoblovsky.wordpress.com/
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| reply to EricV
The intent of this was to also get debate on the economic data as well, and also bring that front and center. I think that's a very key point in the discussions going forward. | |
EricV
join:2013-01-15
Nepean, ON | reply to jkoblovsky
said by jkoblovsky:What I don't understand is how Statutory damages can be used in a way, where if no harm is proven awards are dished out. By definition that's punitive. That's where this is all coming from. I'm not a lawyer
I still believe though that the economics of the situation has been intended to be argued in court, and economic data needs to be brought to light. I think "copyright infringement" needs to be taken off of the table when we are talking about non-commercial infringement, especially if there's no economic harm, and there actually could be an economic benefit to it moving forward.
When you look at the politics of this, it just seems we're in the same position as we were before, legalized but illegal. Meaning, realistically in law, nothing is going to be done as a result of the infringement. Technically yes, they can but realistically no they can't. Government seems to have made it extremely hard, to do that, and rather chose a direction to social engineer going forward. I don't agree with that direction. That was my main issue with Geist. It's illegal in name, but nothing is going to be done about it, and we'll just troll you on notice to notice. Why not just do the politically correct thing, and legalize it? Anyways, just my thoughts, thanks for the legal spare. Will regroup and rearm.
I'm sympathetic to similar views myself - but the law, as it's currently written, isn't. The fact that statutory damages may act as a punishment in practice doesn't invalidate out the statutory damages section of the Copyright Act. Parliament can pass whatever law it wants, including punitive laws, so long as they are constitutional.
In law, the only harm that needs to be proven is that copyright was infringed - not that money was lost. The infringement of the rights in a copyright-protected is work viewed in law as harmful in and of itself.
Similarly, if the police violated your Charter rights by, say, detaining you illegally, that would be actionable without proving that the detention had cost you money. Also analogous could be that statutory damages are more akin to a "fine" than compensation - the traffic police don't need to prove how much your speeding cost the province to fine you for it. They're both imperfect analogies (a speeding fine is certainly punitive, but that doesn't invalidate the fine), but I think the core idea is there. | |
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| reply to JGROCKY
said by JGROCKY:Haven't weighed in on any of the voltage stuff to date as many varying good points can be made for IP accuracy, guest access in offices, etc, but the funny of this all is Voltage, in my mind, has completely missed their opportunity at hand! The "sampling" affect is huge if the product is decent. Look no further the Gagnam Style from Psy.... His video was the most viewed on youtube. Did he have lost sales, maybe, but without releasing over youtube and having it go viral, there's no way that song would have made him the millions it did in the world, never mind North America! If it's a crap video, if it's to have any chance of decent money, viral is the only way to go!
Unless someone is pirating for the purpose of sale, the $20-$50, or $100 (pick a number) value of potential (very arguable) damages are frankly quite likely to be outweighed by the risked cost of anyone fighting, and just as likely winning!
... Who's to say frank didn't torrent the movie monday, love it and buy it tuesday! How will the court rule then?!
I have many movies sitting on my itunes/apple tv account that were purchased after viewing it at a friend's......for free! Woops, yet another lost income moment for voltage!?
Nail on the head on every point. | |
| reply to EricV
said by EricV 
I'm sympathetic to similar views myself - but the law, as it's currently written, isn't. The fact that statutory damages may act as a punishment in practice doesn't invalidate out the statutory damages section of the Copyright Act. Parliament can pass whatever law it wants, including punitive laws, so long as they are constitutional.
In law, the only harm that needs to be proven is that copyright was infringed - not that money was lost. The infringement of the rights in a copyright-protected is work viewed in law as harmful in and of itself.
Similarly, if the police violated your Charter rights by, say, detaining you illegally, that would be actionable without proving that the detention had cost you money. Also analogous could be that statutory damages are more akin to a "fine" than compensation - the traffic police don't need to prove how much your speeding cost the province to fine you for it. They're both imperfect analogies (a speeding fine is certainly punitive, but that doesn't invalidate the fine), but I think the core idea is there.
--
My Canadian Tech Podcast: »canadiantechnetwork.podbean.com/
My Self Help and Digital Policy Blog: »jkoblovsky.wordpress.com/
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EricV
join:2013-01-15
Nepean, ON | said by jkoblovsky:I understand now. Thanks again for the legal spare. I'm going to link to this thread in a forth coming post on this. Very good legal information displayed here. TSI is in excellent hands going forward
Thanks for the discussion, too - it helps me work on communicating my thoughts more clearly on the subject. Copyright law is both a professional and personal interest of mine.
I am merely a TSI subscriber, though, and not involved in the Voltage suit - neither TSI nor the fates of its accused customers are in my hands. If you thought you recognized my prose, it's probably because many lawyers have similar, argumentative writing styles. | |
| said by EricV
Thanks for the discussion, too - it helps me work on communicating my thoughts more clearly on the subject. Copyright law is both a professional and personal interest of mine.
I am merely a TSI subscriber, though, and not involved in the Voltage suit - neither TSI nor the fates of its accused customers are in my hands. If you thought you recognized my prose, it's probably because many lawyers have similar, argumentative writing styles.
--
My Canadian Tech Podcast: »canadiantechnetwork.podbean.com/
My Self Help and Digital Policy Blog: »jkoblovsky.wordpress.com/
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| reply to jkoblovsky
Follow up post
Current Copyright Legislation Allows For Copyright Trolling
»jkoblovsky.wordpress.com/2013/01···-canada/
Yesterday I put up a very provocative and politically incorrect post. The goal of that was to get some discussions going with the experts with respect to the law, and also to try to bring to light some concerns I had within law and economics to the table, and maybe bring those arguments to Teksavvy for a possible legal defense. It was also highly policy orientated to the normal reader. And I did come across as being politically incorrect to try and make a point, that we need to be talking about how right is it to have a law in place, when no harm has been actually been created or can be proven as a result of a P2P download.
As a result, to some it may have looked I was attacking Jean-Francois Mezei. That wasn’t the goal, I was bouncing off of his points he made, to make mine. He’s absolutely correct in everything he’s been saying, and comments he’s been making are extremely fascinating. Bouncing is pretty common in the blogosphere. I’m pretty sure Mezei understood what I was doing, and if not I apologize.
Now I’m not a lawyer, but had to bounce the post off of some lawyers to fully understand myself what’s actually taking place. A very informative legal discussion by a TSI subscriber (Eriv V and no way affiliated with the case but he is a lawyer) and me on DSLreports came up with some very useful information.
There is economic evidence right now that strongly suggests there is no economic harm to a P2P download. My thinking was that because of this, that would be enough to stop Voltage in it’s tracks. Turns out the law has other plans. Basically even if there is no economic harm, you are still liable under the new copyright act. I misinterpreted Geist’s views with respect to the $100 claim of infringement thinking it was related to an economic argument that was put to bed a long time ago and it wasn’t. I apologize to Geist on that. Essentially, if the economics can be brought to the table (which I still believe it can) in a case going forward and it can be proven there’s no economic harm, the judge will probably still hand you out a $100 ticket.
Now for the point in all of this. Essentially what’s happening in our new copyright laws regarding non-commercial infringement, is that it’s legal and it’s not. Basically the Government has made it extremely hard to sue people for downloading off of P2P, and at the same time put in a notice to notice approach, which is basically trolling. So, if you get caught downloading, all that realistically will happen when all is said and done is you’ll get an e-mail from your ISP telling you to stop or else. Or else what? Nothing.
This pretty much has been the position we’ve been in since P2P first started. While technically it’s not legal, the reality is different. Essentially what the Government wants to do is scare people, but not sue them. Basically what Voltage is trying to do right now, but in a different way. So when we look at calling out war on copyright trolls, just remember that currently our laws are set up to allow this to continue going forward. Something I very strongly disagree with in light of economic evidence.
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My Canadian Tech Podcast: »canadiantechnetwork.podbean.com/
My Self Help and Digital Policy Blog: »jkoblovsky.wordpress.com/
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| Even if we will still get a notice how do you explain the government collecting alevy on blank media yet still leaving people opening to be harassed. | |
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