Copyright

Amongst the many bombs hurled against the current copyright system is the length of the current copyright terms: life plus 70 years after death for a human author, or 95 years for a corporate author. The idea behind these criticisms is that if copyrights were to be pushed into the public domain much earlier, that there would be this great, vast public benefit. As this author states: "Shortening the copyright term would more directly restore the public domain's role in "promoting the progress." Economists modeling the copyright term have estimated that its optimal length is closer to the original term of 14 years in our first copyright law—many decades shorter than the current term. After such "limited times," economists tell us, continued protection offers increasingly negligible incentives to most authors, while unnecessarily keeping works from the public. In addition to recalibrating the copyright term, reintroducing formalities that require claimants to furnish basic copyright information would greatly reduce the transaction costs associated with licensing and use, particularly if accompanied by centralized copyright registries and better-maintained records."[ref]Jennifer Jenkins IN AMBIGUOUS BATTLE: THE PROMISE (AND PATHOS) OF PUBLIC DOMAIN DAY, 2014, DUKE LAW & TECHNOLOGY REVIEW, Vol. 12 Page 1[/ref] I have written about this topic before. Here.[ref]Copyrights Last Too Long! (Say the Pirates): They Don't; And Why It's Not Changing Anytime Soon[/ref] Here.[ref]Claiming Copyright in Public Domain Works: It's Time to Put an End to Publishing Sleight of Hand[/ref] And here.[ref]The Shocking Truth Behind the Passage of the Sonny Bono Copyright Extension! (Is That It's Not Really Shocking)[/ref] The major points I have made are as follows:

• The push for longer copyright terms comes from Europe, not the United States.
• If we were to reduce our copyright terms, this would have the effect of reducing the protection of them world-wide due to the Berne Treaty's "Rule of the Shorter Term," making them less competitive with European works.[ref]Berne Treaty, Article 7, Section 8, Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971)[/ref]
• How long the copyright lasts depends on when you die. Kurt Cobain's copyright protection is going to last barely 70 years, and in some cases less, for his songs.
• Works entering the public domain largely benefits the publishers, not the public.

On that final bullet point, last week I went to an actual "bricks and mortar" bookstore, (Yes! They still exist!) looking for some travel books to plan my family's upcoming summer vacation. On my way to the travel section, I passed a table containing various "classic" books, such as "The Hunchback of Notre Dame" and "Crime and Punishment," all of which are in the public domain. So what is the great savings passed onto the public by these works being in the public domain? I picked up a copy of "Romeo and Juliet." The store wanted $7.98. And this is for a play which has been in the public domain for well over 400 years. Where's the savings? Beats me. Plus, one of the advantages of the "life plus" system is that all works by an author go into the public domain at the same time,[ref]James Bond Enters the Public Domain! Is This the Work of SPECTRE?[/ref] which eliminates a lot of guess work regarding copyright terms complained about by copyright critics. This also eliminates the resulting shenanigans by some publishers because of that confusion, such as those behind the Sherlock Holmes series of stories.[ref]Claiming Copyright in Public Domain Works: It's Time to Put an End to Publishing Sleight of Hand[/ref] As a signatory to the Berne Convention, the U.S. is committed to a copyright term of no less than life of the author plus 50 years. So, to reduce the length of copyright protection to 14 years, as suggested by the quote above, would immediately violate our treaty obligations with about 170 other nations. It is not a wise strategy to start reneging on your promises with your trade partners, because they will no longer trust you in the future. Even further, we cannot walk back our treaty commitments and re-instate formalities as a condition of copyright protection (again as suggested above), as this would violate the Berne treaty as well.[ref]Berne Treaty, Article 5, Section 2, Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971)[/ref] Further, there is the Trans-Pacific Partnership, which has been negotiated between the U.S., Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam.[ref]Overview of the Trans Pacific Partnership[/ref] In Article Q.Q.G.6 of the TPP, copyright terms are harmonized at life of the author plus 70 if created by natural persons, and 70 years from first publication if created by a corporation or business.[ref]TPP Treaty: Intellectual Property Rights Chapter, Consolidated Text (October 5, 2015)[/ref] Now, as of the date of this blog post, the TPP has been agreed upon, but not yet ratified by the Senate. If it does get approved, this will lock the U.S. in to life plus 70 for the foreseeable future. Unless, again, we want to start breaking our promises with our trade partners, which is not a very wise strategy. So, let's come up with a hypothetical legislation to reduce all current copyright terms, but stay Berne Treaty compliant. This will require that the TPP not be approved by the Senate (and there is already opposition from various forces). Further, the proposed legislation will reduce all copyrights now in existence back to their 1976 act levels, namely, the life of the author plus 50 years but no further, so as to be compliant with Berne,[ref]Berne Treaty, Article 7, Sections 1 & 2, Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971)[/ref] and corporate works would be limited to 75 years. Would this legislation work? No. Because it would be unconstitutional. Now, I am not a constitutional lawyer by any stretch of the imagination. However, I do know a good one. David Bertoni of the Maine firm of Brann and Issacsson,[ref]Brann & Isaacson The firm most recently notched a Supreme Court victory in the case of Direct Marketing Association v. Brohl.[/ref] has litigated many constitutional law issues, including numerous cases involving the "takings" clause. Many years ago, we studied law together at George Washington University Law School and partnered to win a national law competition in intellectual property. For his assistance with this post, he has my sincere and humble thanks. Any flaws in the legal theories that follow are mine and not his. It's going to get thick and a little deep into the Constitution and various ruling of the Supreme Court of the United States, so hold on. The constitutionality problem comes from what is known as the "takings" clause of the 5^th Amendment to the Constitution. It States: "No person shall be…deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."[ref]Fifth Amendment[/ref] So there are three elements we need to look at:

• Private property
• Taken for public use
• Without just compensation

For a while, the thinking was that the phrase "private property" only applied to real property. But in the landmark case of James v. Campbell, [ref]104 U.S. 356 (1881)[/ref] the court decided that "property" included patents. "That the government of the United States when it grants letters-patent for a new invention or discovery in the arts, confers upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the government itself, without just compensation, any more than it can appropriate or use without compensation land which has been patented to a private purchaser, we have no doubt."[ref]Id.[/ref] This was later extended to the right to mine minerals. In Pennsylvania Coal Co. v. Mahon[ref]260 U.S. 393 (1922)[/ref] the SCOTUS "expanded the protection of the Takings Clause, holding that compensation was also required for a "regulatory taking"—a restriction on the use of property that went "too far."[ref]Horne v. Dep't of Agric., 135 S.Ct. 2419 (2015)[/ref] "Nothing in the text or history of the Takings Clause, or our precedents, suggests that the rule is any different when it comes to appropriation of personal property. The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home."[ref]Id.[/ref] Next, it has to be for a "public use." This was expanded to include takings by the government in which there was not unfettered public access. "Promoting economic development is a traditional and long-accepted function of government. There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized."[ref]Kelo v. City of New London, Conn. 545 U.S. 469 2005[/ref] So, back to our hypothetical reduction of copyright terms and how the 5^th amendment prohibition against uncompensated "takings" would make copyright term reduction unconstitutional. Private property is a given. If a patent is a property right subject to the "takings" clause, then so is a copyright. That it would be for a "public use" also seems very clear. The hypothetical would greatly reduce the length of copyright terms, and in some cases immediately inject a work into the public domain. Cancelling a copyright and giving the work over to the public, for free, is the very definition of a public use. Even when the copyright term is just reduced and not cancelled the argument goes that "[a]fter such ‘limited times,' economists tell us, continued protection offers increasingly negligible incentives to most authors, while unnecessarily keeping works from the public,"[ref]Jennifer Jenkins IN AMBIGUOUS BATTLE: THE PROMISE (AND PATHOS) OF PUBLIC DOMAIN DAY, 2014, DUKE LAW & TECHNOLOGY REVIEW, Vol. 12 Page 1[/ref] meaning the earlier a work goes into the public domain, the better it is for the public. Again, clearly a "public use." Lastly, there is the consideration of "without compensation." Though the SCOTUS has taken up "takings" cases three times since 2002, they unfortunately leave us with the proposition that every "taking" must be evaluated on a case by case basis, in much the same way that the SCOTUS has ruled on fair use cases. The question then becomes, did the property owner have a reasonable expectation of the continuation of the right, or was it understood that it could be wiped out by government regulation? "[T]he Court clarified that the test for how far was "too far" required an "ad hoc" factual inquiry. That inquiry required considering factors such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action."[ref]Horne v. Dep't of Agric., 135 S. Ct. 2419 (2015)[/ref] There certainly is an argument to be made that since Congress has the sole power to pass legislation regarding copyrights,[ref]17 USC 301[/ref] that Congress has the ability to adjust copyright terms as they see fit, and the copyright owner should be owed no compensation. The question then becomes, does this trump the "reasonable investment-backed expectations" of a copyright owner? Copyrights are bought and sold all the time. The value of that copyright is measured by:

• What its historical income is on an annual basis
• Whether that level of income is foreseen to continue
• The remaining length of time the copyright will remain under copyright protection.

A company who has purchased a copyright based upon the expectation of a "life plus 70" or a "95 years" copyright length, will have the value of their investments severely reduced if they wake up to discover that 20 years has been lopped off the amount of time they could reasonably expect to receive income on that copyright. And consider the "Bowie Bonds."[ref]Bowie Bond[/ref] These were "an asset-backed security which uses the current and future revenue from albums recorded by musician David Bowie as collateral."[ref]Id.[/ref] They ran into a slight problem: "The value of the bonds began to decline as online music and file sharing grew in popularity, decreasing album sales. This resulted in a downgrade by Moody's in 2004."[ref]Id.[/ref] In fact, they were downgraded to the last level above "junk."[ref]Bowie bonds nearing junk status[/ref] Imagine the problem if Congress were to materially reduce the length of copyright in existence when such a security was issued. It could have the effect of rendering the bonds worthless, if there was no way that the truncated revenue stream would be sufficient to pay off the debt. Seems like a taking to me. Further consider that Congress has never reduced copyright terms, they have always lengthened them. In light of such actions, would it ever be a "reasonable investment-backed expectation" that copyright terms might be reduced, and thus suffering a foreseeable financial loss? Factor into your analysis the result that such retroactive legislation would instantly inject many properties in to the public domain, most notably, Mickey Mouse. While I have suggested that Mickey may be further protected by trademark law,[ref]Mickey's Headed to the Public Domain! But Will He Go Quietly?[/ref] many iconic properties will not have the same argument. Here's a short list of films that would go instantly into the public domain should such legislation pass:

• All Quiet On the Western Front
• 42^nd Street
• A Farewell to Arms
• The Thin Man
• Captain Blood
• David Copperfield
• Mutiny On the Bounty
• Lost Horizon
• A Star is Born
• Citizen Kane
• The Maltese Falcon
• The Wizard of Oz
• Gone With the Wind

And of course:

• Snow White and the Seven Dwarfs
• Pinocchio

Now, there certainly is an argument that these films have "had their day" and should be content to ride off into the sunset. But that is not the test here. The test is, did the owner of the copyrights in these films have some "reasonable investment-backed expectations" for their copyrighted properties? And were these expectations violated by the unilateral reduction in their length of copyright? Because now, as the direct result of congressional action, their investment in these copyrighted properties is now worthless, or very close to that amount, since any, and I mean anyone in this age of the internet, will be able to make and distribute copies of these iconic films. It seems clear that hypothetical for the reduction of current copyright terms is, in fact, a government "taking" within the terms of the 5^th Amendment and would be unconstitutional. Now, the government could pass the legislation and keep it constitutional, if it offered those affected "fair compensation," for the economic harm caused. So how much do you think is "reasonable compensation" to have your government pay out to put The Wizard of Oz into the public domain? Before you answer, bear in mind that all of the Wizard of Oz stories are already in the public domain,[ref]List of Oz books[/ref] and anyone can make a movie about them. How much are you willing to have your government pay to put Gone With the Wind into the public domain? How much for Mickey? And this, of course, is just the tip of the iceberg. Every copyright owner would have to be compensated, since even if they retained a valid copyright, the amount of time in which they could exploit their copyrights would have been greatly reduced. Like all the songs of Aerosmith. Or The Eagles. How much "reasonable compensation" should be paid to them? No, the only way in which copyright terms could be reduced, constitutionally, would be to do so prospectively. This would take the form of "as of January 1, 20**, (pick your date in the future) all works created and fixed after that date shall have a copyright term equal to—(fill in the blank). And as previously reported on this blog, since the Sonny Bono Copyright Term Extension Act was passed out of both the House and Senate on either a voice vote or, in the case of the Senate, "unanimous consent," I would not be holding my breath for that to happen. So, any proposal to greatly reduce the length of existing copyrights is a non-starter, dead in the water, dud, lemon, loser, turkey…pick your adjective.

Last month saw the release of the Department of Commerce's White Paper on Copyright.[ref]White Paper on Remixes, First Sale, and Statutory Damages[/ref] Specifically, the voluminous (107 page) report took up three specific issues:

• Remixes, broadly defined to include all forms of combining copyrighted works, including "fan fiction."
• The First Sale Doctrine, especially whether the doctrine should apply to digital goods.
• Statutory Damages, including whether the penalties should be lessened or further guidelines established.

The most surprising element is that after all the ink has been spilled, the DOC finds no need to massively overhaul or amend the current copyright laws, with the notable exception of statutory damages. In sum, the DOC finds:

• "[T]he record has not established a need to amend existing law to create a specific exception or compulsory license for remix uses,"[ref]Id. at 4[/ref] noting that one comment called it "a solution in search of a problem."[ref]Id. at 18[/ref]
• "Amending the law to extend the first sale doctrine to digital transmissions of copyrighted works is not advisable at this time. We have seen insufficient evidence to show that there has been a change in circumstances in markets or technology, and the risks to copyright owners primary markets do not appear to have diminished."[ref]Id. at 4[/ref]
• With regards to statutory damages, amend the copyright act to provide for a list of factors for Judges and juries to consider, expand the ability of a defendant to claim innocent infringement, and give to Courts more discretion to award statutory damages on other than a strict "per work" basis.[ref]Id. at 5[/ref]

I would agree with the DOC on the first two issues. On the issue of statutory damages, the DOC takes an incredibly strange and misguided approach, insisting that we should now consider the "defendant's ability to pay" rather than the harm caused by the defendant, a concept that is nearly unheard of in U.S. jurisprudence.

Remixes

The DOC gathered a bunch of things into the general category of "remixes." These include "mash-ups" sampling, "fan videos," photo-manipulation, "fan-fiction" and the like. The DOC starts with the statement that "[r]emixes make valuable contributions to society in providing expressive, political and entertainment content."[ref]Id. at 4[/ref] This rather bold statement is offered with no supporting facts (not even a footnote) and totally ignores the fact that these remixes start out by copying what someone else has already done, instead of creating new content themselves, which is what copyright is supposed to promote in the first place. The DOC report notes the problem with allowing unfettered remixes is that these uses will inevitably lead to the incorporation of works into hate speech (the example of using "Hey Jude" into an anti-Semitic creed is noted in a footnote).[ref]Id. at 9 footnote 44[/ref] Or, more recently, as the run up to the election has shown on numerous occasions, imagine that a candidate that you despise has now appropriated your song as their campaign theme song. Seems like I should have some control, should I not? As to the general question of remixes, there was this excellent comment: "[Y]ou can't get licenses for everything, but that's okay…There are a billion songs you can go get to create whatever you want to create. Why is my property so important to you that you can only do your creation with my property?"[ref]Id. at footnote 112[/ref] Later, there was this observation by the DOC: "[I]n cases involving multiple samples it can be particularly cost prohibitive and impractical to clear the necessary rights. A professor referred to a "royalty stacking problem" where a musical recording has a large number of samples and the cumulative demands for royalties from the different owners of these samples can exceed 100 percent of the remixer's revenues."[ref]Id. at 19[/ref] This leads the Electronic Frontier Foundation in commenting on the DOC report to trot one of its favorite bogeymen… "censorship." "Thus, the current regime of expansive rights for copyright holders, a lack of clear safe harbors for important speech activities, and astronomical statutory damages gives copyright owners the de facto power to censor remix."[ref]The Commerce Department Has Good Recommendations For Fixing Copyright Law - But More is Needed[/ref] As I have said numerous times on this blog, my speech is my speech. Copying my speech does not make it your speech. And you have no absolute Constitutional right to make my speech. Plus, according to the Constitution, I have the "exclusive right" in my "writings."[ref]United States Constitution, Article I, Section 8[/ref] So, no you don't have a right to take my speech in order to make it yours. Plus, if you have sampled so many different artists that the licensing fees exceed 100% of your revenues, the failure is not in the copyright laws, but instead is the logical consequence of your failure to do anything creative. Slapping together a bunch of segments you copied from other people's musical compositions does not make you Mozart. Yet, the EFF blathers on: "We explained [PDF] the chilling effect copyright has on important remix speech and suggested a clear and narrow delineation of copyright owners' ability to restrict derivative works like remixes… The Commerce Department panel did not discuss our recommendation in its comments." Well, it's no wonder that the DOC ignored you, because it seems that such a change to the copyright act would possibly be unconstitutional. First off, the granting clause in the Constitution says I am entitled to the "exclusive right," not the non-exclusive right like the EFF proposes. According to the Copyright Act, the right to control derivative works (which is what remixes are) is part of my exclusive rights under Section 106 (2). Now, if my exclusive right to control derivative works become a non-exclusive right, this would make my copyright much less valuable because unfettered "remixes" of my work would now compete with my licensed works. While I am not a constitutional lawyer, it seems to me that this government mandated reduction of my rights, causing financial injury, would be the sort of taking prohibited by the Fifth Amendment.[ref]In these, the regulation has not physically invaded or precipitated a total loss, or even been employed to gain undue leverage. Rather, regulation reduces, often significantly but not totally, the economic prospects for property, and an owner asks to be compensated. http://www.heritage.org/constitution/#!/amendments/5/essays/151/takings-clause[/ref] This quote from author Sharon Lee appeared in a previous blog post, but bears repeating: "We built our [artistic works]; they are our intellectual property; and they are not toys lying about some virtual sandbox for other kids to pick up and modify at their whim."[ref]The Second Answer[/ref] And finally there is this sobering point: "Songwriting is now the most heavily regulated of the creative arts. Seventy per cent of a songwriter's income comes from rates set by the government, rather than by the songwriters and publishers, on the free market."[ref]Will Streaming Music Kill Songwriting?[/ref] I fail to see how this is fair in an economy that is supposed to be governed by "free market" principles. Extending this unfairness by mandating a give-away of my property is untenable.

First Sale Doctrine for Digital Goods

Normally, when one purchases a physical copy of a copyrighted work, you can do anything which re-publishes the work.[ref]17 USC 109[/ref] You can sell it, lend it or even give it away. However, some have said that this right should be extended to digital files, even though they are uniformly licensed, not sold.[ref]The Commerce Department Has Good Recommendations For Fixing Copyright Law - But More is Needed[/ref] In rejecting the call for the first sale doctrine to be made available for digital works, the DOC made these points:

• In a market which is becoming dominated by streaming, there really is no need for a secondary market in digital goods.[ref]DOC White paper at 46[/ref]
• The digital secondary market would soon destroy any remaining market for new sales, as the "used" copy is identical to the "new" copy.[ref]Id. at 51[/ref]
• The "forward and delete" technology as proposed by companies like ReDigi is not a practical or workable solution as the proliferation of unauthorized further copies is inevitable.[ref]Id. at 53[/ref]

The last point is really the crux of the arguments. Digital goods are different precisely because of the ease and speed by which perfect copies can be made. While the decision in the ReDigi litigation with Capitol Records did not hinge on this point,[ref]Capitol Records LLC v. ReDigi, Inc., 934 F.Supp. 2d 640 Southern District of New York 2013[/ref] there is no getting around the fact that a digital re-sale market would kill the market for new digital copies of the works. The whole "forward and delete" scheme is a panacea that just will not work. This is because your computer does not forget anything or really delete anything. As my brother (he being the owner of a degree in computer science from Northwestern) once succinctly explained to me, your computer does not "delete" anything. It simply removes the "pointer" that tells the computer where to find it. That information stays there until such time as the computer over-writes it with new information. And until that time, it can still be recovered. And then there is the whole problem with back-ups. Is the digital file you just "sold" still present as a back-up file on a flash drive someplace? If it was, you could then upload it again and "sell" it again. And again. And again. And what about your peripheral devices? Just last weekend, I spent some time cleaning up my iTunes account, mainly deleting songs I didn't want anymore. So when I connected my iPod back up to the computer, my computer immediately noticed that there were songs on my iPod that were not in my iTunes library. The computer asked "do you want to add them to iTunes"? So, it would be very simple for me to "sell" the song out of my iTunes library, have the service delete it out of my iTunes library, and then recopy it back into my iTunes library from my iPod. Where I could sell it again. And again. And again. The whole idea that "First Sale" rights should be extended to digital files is a non-starter. Unless, of course, you want to kill the market for new copies and encourage copyright infringement.

Reforming Statutory Damages

If there is one area where the task force went off the rails it was in the area of "statutory damages." This is where, instead of actual damages, the copyright holder can request the award of a sum per work infringed, in the range of $750 to $30,000. The task force seems swayed by the incomplete, misleading and anecdotal recitations of the activities of both the "copyright trolls" and the poor file sharer. And once again, we are treated to the sad tale of Jammie Thomas-Rasset. And it goes like this: (Cue the sad violins) ""Jammie Thomas-Rasset, a home Internet subscriber and mother of four, was assessed $222,000 in statutory damages for sharing 24 copyrighted songs using the peer-to-peer software Kazaa—$9,250 per song."[ref]Collateral Damages: Why Congress Needs To Fix Copyright Law's Civil Penalties[/ref] Why in the world is the EFF mentioning that she is a mother of four? Does her ability to procreate somehow give her the moral high ground here? No, it's entirely irrelevant to the issues at hand. The real story is that JT-R had thousands of songs on her computer and covered up her infringement by destroying evidence and committing massive amounts of perjury. Here is the real story of JT-R:[ref]Capitol Records v. Thomas-Rasset 692 F.3d 889 (8th Circuit Court of Appeal) 2012[/ref]

• Investigators found a KaZaA account under the name "tereastarr", which held 1,700 music files, at an IP address that was linked to Thomas-Rassett.
• After getting a letter from the investigators about the "tereastarr" account, JT-R had her computer's hard drive removed and replaced with a new one, destroying the evidence contained on it.
• She testified at trial that although "tereastarr" is the password she used for her email account, online shopping accounts, online dating account and her MySpace page, the KaZaA account by the exact same name was not hers.
• Her attorney suggested that some unknown person had "spoofed" her account or that some "hacker" had lurked outside her window with a laptop and "framed her."
• She also tried to blame a former boyfriend and her children.
• A Juror commented, "She lied. There was no defense. Her defense sucked."[ref]RIAA Juror: 'We Wanted to Send a Message'[/ref]
• The first jury awarded $9,250 for the 24 works at issue for a total of $222,000.
• After a second trial, the second jury returned a verdict of $80,000 per work, for a total of $1,920,000.
• After a third trial on the damages issue alone yielded a verdict of $62,500 per work, for a total of $1,500,000.
• The record companies offered to settle the case for $25,000, which they offered to donate to charity. She refused.

She appealed. Here's what the Eighth Circuit Court of Appeals had to say: ""Thomas-Rassett's willful infringement and subsequent efforts to conceal her actions certainly shows ‘a proclivity for unlawful conduct.'" "The evidence against Thomas-Rassett demonstrated an aggravated case of willful infringement by an individual consumer…"[ref]Capitol Records, Inc. v. Thomas-Rassett, 692 F.3d 899 Eighth Circuit Court of Appeals (2012)[/ref] What kind of idiot turns down an offer of settlement that is barely 10% of what has already been awarded against you? And, remember, the 24 files that ultimately went to trial were the ones they could conclusively prove, because she destroyed her hard drive in an effort cover up her actions. Hmm. An "aggravated case of willful infringement." Now do you still feel sorry for her? "The Task Force proposes a new clause in subsection Section 504(c)526 as follows: FACTORS TO CONSIDER -- In making any award under this subsection, a court shall consider the following nonexclusive factors in determining the appropriate amount of the award: (1) The plaintiff's revenues lost and the difficulty of proving damages. (2) The defendant's expenses saved, profits reaped, and other benefits from the infringement. (3) The need to deter future infringements. (4) The defendant's financial situation. (5) The value or nature of the work infringed. (6) The circumstances, duration, and scope of the infringement, including whether it was commercial in nature. (7) In cases involving infringement of multiple works, whether the total sum of damages, taking into account the number of works infringed and number of awards made, is commensurate with the overall harm caused by the infringement. (8) The defendant's state of mind, including whether the defendant was a willful or innocent infringer. (9) In the case of willful infringement, whether it is appropriate to punish the defendant and if so, the amount of damages that would result in an appropriate punishment. When calculating the total award, all of these factors should be weighed holistically, in the context of the entire case, to ensure that the overall award is appropriate."[ref]DOC White paper at 87-88[/ref] I have a different perspective. I have spent a lot of time in Court, and no, not just because I am an attorney. In between music school and law school, my day job was being an "in court clerk," assisting the Judges by marking in the evidence, and swearing in witness and jury members. I have seen hundreds of jury and non-jury trials. Sorry to tell you this, but virtually all measure of damages are speculative. Take your average car accident. The past medical bills are easy enough to prove. But what about necessary medical treatment in the future? What will that cost? Well, we will have to speculate a little bit. And what of the pain and suffering caused by the injuries? What is that worth? Well, I guess we'll have to speculate a little more. The process of assessing damages by its very nature will lead to inconsistent results. There is nothing that will smooth that out. Back to Jammie Thomas-Rassett. You want to avoid statutory damages? OK. How much money did the record companies lose by having her file share over 1,700 songs? Tough to say if you don't know how many times the songs were "shared." Even if it was technically possible to find that information out, we'll never really be sure because she destroyed the evidence. Is that number of supposed "actual damages" any more certain than the level of statutory damages that were awarded? And in all the trials I watched, the defendant's inability to pay was never made an issue. As a matter of fact, it was prohibited from being asserted. This is because the issue is "what was the damage caused," not whether you have the current ability to make it right. Do you really think that Bernie Madoff is going to be able to pay back all those people he defrauded? If he can't, should this reduce the amount he should owe? This is what the DOC is proposing. The citation the DOC makes in support of this proposition concerns punitive damages, not ordinary damages.[ref]Id. at 91 FN547[/ref] Punitive damages and ordinary damages are two vastly different concepts, and should not be treated as being alike. But what about the "copyright trolls"? This decision was handed down February 8, 2016 against often accused "copyright troll" Malibu Media.[ref]Malibu Media v. Doe U.S. District Court for the Northern District of Illinois 2016 WL 464045[/ref] What was notable was not that Malibu Media lost a summary judgment decision (usually the defendants don't show up), but that they agreed to let the Defendant proceed anonymously as a "John Doe" and agreed in advance to only seek the minimum statutory damages of $750 per work infringed.[ref]Id. at FN 2[/ref] Also notable was the case against pirate site Movie Tube,[ref]Paramount Pictures et al v. Does U.S. District Court for the Southern District of New York 2016 WL 10013786[/ref] where in the case of clear liability for willful infringement, and a default by all the Defendants, the Court only awarded $75,000 per work infringed, or half of the maximum amount. Every day, I read the copyright decisions that are handed down, and all of the concerns of the DOC seem to me to be already taken into account by the Judges in assessing the proper level of statutory damages. As this court stated: "To determine the appropriate amount of statutory damages, courts must consider the following factors: "(1) expenses saved and profits reaped by the infringer; (2) revenues lost by the plaintiff; (3) the strong public interest in insuring the integrity of the copyright laws; and (4) whether the infringement was willful and knowing or innocent and accidental." In determining the just amount of statutory damages, "[t]he defendant's conduct is the most important factor."[ref]Kennedy v. Credtigo, LLC United States District Court for the District of New Jersey 2016 WL 492757[/ref] One additional proposal by the DOC that does seem to have merit and is gaining steam is for the creation of a "copyright small claims court." "Finally, the Task Force supports the creation of a streamlined procedure for adjudicating small claims of copyright infringement and believes that further consideration should be given to the proposal of the Copyright Office to create a small claims tribunal.581 The proposal would provide for a cap on awards of statutory and actual damages, limited discovery and counterclaims, assertion of all relevant defenses (including fair use), optional attorney representation, and awards of costs and fees against frivolous litigants."[ref]DOC White paper at 99.[/ref] So, all in all, a fairly reasonable and even-handed approach by the Department of Commerce.