In many ways the U.S. is seen as the standard when it comes to copyright law. In some cases, it almost appears to be an export product in itself.
However, there are some American copyright elements that remain fairly unique.
For example, one concept that doesn’t exist in most countries is statutory damages. This allows copyright holders to request up to $150,000 per infringed work in the US, without having to prove actual losses.
This option was implemented in addition to ‘actual damages’ to allow rightsholders to recoup losses, whatever the circumstances may be. In the U.S. this has become standard procedure in most cases, which can result in monetary awards that are a multitude higher than the actual damage.
For example, Jammie Thomas-Rasset was famously ordered to pay $1.5 million for 24 songs she shared via Kazaa years ago. That amount was eventually reduced to $222,000 by the appeals court, but it’s still hard to see how two dozen downloads caused that much in losses.
If anything, the potential of these astronomical damages awards can be seen as a giant stick, which copyright holders can use to their advantage. That’s a problem, according to seasoned copyright lawyer Bill Patry.
Patry has a well-established track record when it comes to copyright. After being admitted to the bar forty years ago, he served as copyright counsel to the U.S. House of Representatives, held a position as a law school professor, to then become a prominent copyright counsel at Google.
A few days ago Patry appeared as a guest on the “Whose Song Is It Anyway?” podcast, hosted by Dr Hayleigh Bosher and lawyer/producer Julius O’Riordan, better known as “Judge Jules.” The trio discusses a wide variety of topics, including an intriguing question at the end.
What Bill Patry Would Change
The hosts ask Paltry what he would pick if there was one thing he could change in copyright law going forward. While some may have to give that some thought, Patry immediately replies with statutory damages.
“Statutory damages I think are a big problem. Because they’ve enabled an industry of trolls,” he says.
Google’s copyright counsel is not against statutory damages by definition. There are instances where they work well. For example, in a situation where there aren’t any sales yet, or if rightsholders have to spend a disproportionate amount of resources to enforce their rights.
However, when it comes to online copyright infringement, these statutory damages have facilitated an industry of copyright trolls. These trolls file numerous lawsuits, often without rock-solid evidence.
Enabling Copyright Trolls
“What’s happened in the digital world is that, because the volume of alleged infringements can be high, it becomes an attractive thing for copyright trolls,” Patry notes.
As an example, Patry mentions a lawyer in the Southern District of New York who filed thousands of cases and was recently disbarred. While no name is mentioned, this description clearly points to Richard Liebowitz. That’s an extreme example, but troll-type practices are also common in piracy lawsuits.
These trolls are helped by statutory damages because they give rightsholders a massive ‘stick.’ They threaten their targets with damages of up to $150,000 for using a single image or sharing a single film, to then settle for a few thousand dollars.
A few thousand dollars is cheap in comparison to $150,000 but often much higher than the actual losses, if there’s any real damage at all.
“That has become an industry. Where more than half of all copyright suits filed in the US are copyright troll suits,” Patry says.
“So that’s the single change I would make. Dealing with statutory damages, which has become a weapon, rather than what it should be, a way to get copyright owners some money when their work has been infringed,” he adds.
Google’s Senior Copyright Counsel doesn’t go into detail about what he would change, but it would likely involve some modification to prevent statutory damages from being abused. For now, however, it appears that US lawmakers are only trying to feed the trolls, he says.
CASE Act is a Problem Too
Patry mentions that the CASE Act, which was passed as part of the spending bill in December, is only going to make matters worse.
Short for “Copyright Alternative in Small-Claims Enforcement,” establishes a copyright claim tribunal within the United States Copyright Office. This offers an option to resolve copyright disputes outside the federal courts, with maximum damages of $30,000 per case.
This law aims to make it cheaper to resolve issues for all parties involved, but Patry fears that it’s an open invitation to trolls.
“That’s a copyright troll act to me,” he says. “The Copyright Office is going to regret the sponsorship of that I think because they’re going to be overwhelmed by suits.
“There may be 50,000 of those suits filed per year and there going to be three judges deciding that? I don’t think so. I don’t think you can decide 50,000 cases in one year with three judges,” Patry adds.
This is fierce criticism coming from a top lawyer at Google, but it’s not new. Several experts have issued similar warnings in the past. Time will tell whether those are warranted or not.
The full episode of “Whose Song Is It Anyway?” which was highlighted by IPKAT is available below. The section about statutory damages starts around 41:00.