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EricV80
join:2013-01-15
Nepean, ON

EricV80 to jkoblovsky

Member

to jkoblovsky

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

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

2 edits

jkoblovsky

Member

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.
EricV80
join:2013-01-15
Nepean, ON

EricV80

Member

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

4 edits

jkoblovsky

Member

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.
EricV80
join:2013-01-15
Nepean, ON

EricV80

Member

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

jkoblovsky

Member

Define the difference between statutory and punitive damages in law.
peterboro (banned)
Avatars are for posers
join:2006-11-03
Peterborough, ON

peterboro (banned) to EricV80

Member

to EricV80
said by EricV80:

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.

From what I’ve seen in the case law from just a few years ago the copyright owners have to make an election for statutory damages prior to final judgement and the quantum of statutory damages has been quite low in most cases as will this one.

This whole fiasco can be alleviated by a public education program to warn people that Voltage will not get significant damages awarded so they don't panic and settle.