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'Jane Doe' Lawyer Glenn Peterson Talks With GrepLaw
scubacuda writes "Glenn Peterson, attorney at McDonough Holland & Allen, represents 'Jane Doe,' one of the first to fight the constitutionality of recent RIAA subpoenas. In this GrepLaw interview, Glenn gives his thoughts on recent RIAA strong arm tactics, Matt Openheim's assertion that Jane Doe's arguments have 'already been addressed by a federal judge,' and the danger of giving subpoena power to anyone pretending to have a copyright claim."
>>Psst, Glenn, in a civil suit there is no presumption of innocence, and quite literally no prejudice.
RTFDMCA. Under the DMCA willful violation of copyright is a CRIMINAL offence as well as a civil one. Thus a subpoena demonstrating the existence of infringing material may well lead to a criminal prosecution. Hence the need for presumption of innocence.
>>No, IANAL, but I'm wondering how much of a lawyer Glenn really is. He mentions constitutional issues five times, but doesn't expand on what those are, or why they'd apply in a civil suit.
More of a lawyer than you. The argument is that the LAW is unconstitutional, not that the suitor is acting unconstitutionally. Every law passed by Congress, civil or criminal, can be challenged in court and overturned if it breaches the constitution. That's what the constitution is for.
The author of this post asserts his moral rights.
"I feel especially passionate about this with respect to the "intent" factor. The intent associated with printing 1,000 counterfeit "Harry Potter" books and that associated with kids sharing music with other kids is obviously different and I can scarcely visualize a scenario where $150,000 per download would be appropriate."
I've already written "my" senators and congress people on this (we'll see what good that does...).
I am just utterly dumbfounded when I see as potential damages for a single act of infringement: $750-$150,000. Can anyone tell me what the basis is for these numbers, or at least whose ass they were pulled out of, and for how much?
Were I to distribute a copy of a track from the latest Metallica album (*shudder*) to one Mr. John Ashcroft, my doing so constitutes a single act of infringement. The theoretical maximum loss to the copyright holder due to this single act of infringement is the price of the album the song is officially distributed on; perhaps the album sells for $14.95. I don't know, I've never purchased an album (it is true!), and as such don't really keep up on prices.
While this is an obvious upper bound, the actual loss to the copyright holder will be far less than this. There a number of factors:
The electronic copy in .mp3 or .ogg format is not a full substitute for the uncompressed CD track.
John (hey, buddy!) has been distributed only 1 of (let's say) 12 tracks.
John has not received a physical duplicate of the printed CD.
John has not been distributed a jewel case.
John has not been distributed "liner notes".
The current retail price of the album may be such that, while John has no objection to being distributed a copy of a single track at no cost to himself, given John's relatively ho-hum interest in the track (understandable), and his limited means (hey, he's Attorney General, not CEO of Haliburton), John would not have acquired a copy of the track at all if it were only available to him at the current retail price.
.mp3 of a track from a 12 track album.
We see that in the case John would not have been willing to pay any money at all to acquire a copy of the track (on the album), the copyright holder incurs no loss whatsoever by my act of infringing distribution.
Even if John would have been willing to pay the current retail price of the album, his receiving an infringing copy of a single track, or even several tracks, can not be said to result in a loss to the copyright holder in the amount of the current retail price of the album. It can not, beause John may still purchase the album. Given the previously presented list, this should not be at all surprising.
In fact, perhaps one of the few cases in which, although John had previously been willing or able to pay the current retail price of the album, upon hearing the infringing tracks I distributed to him he would no longer be willing to pay the current retail price, is the case in which the album fails to meet John's expectations. So yes, in this case, in the case where the current distribution model results in an uninformed and mislead consumer, perhaps my distributing to John one infringing track will result in a loss to the copyright holder in the amount of the current retail price of the album.
But even this is hardly reasonable, for the same effect could have been acheived through perfectly legal means, either by John hearing the track on the radio and realizing "it is the suck!", through word of mouth, or by Mr. Ashcroft coming over to my place for some head-banging, only to discover the album does not meet his expectations.
And so, if we want to assign a fair damage amount for each act of infringing distribution, on average I suspect it will not be more than about $0.50 a track, for an amateur-produced
What? Oh, yes, it
.sig Realistic fines for copyright in