[LINK] next chapter in iiNET/AFACT case

Frank O'Connor francisoconnor3 at bigpond.com
Thu Mar 24 20:31:46 AEDT 2011

Hey, you think that's bad news ... try this one on for size:

Manhattan Federal Judge Kimba Wood Calls Record Companies' Request 
for $75 Trillion in Damages 'Absurd' in Lime Wire Copyright Case
Victor Li
The American Lawyer
March 15, 2011

Does $75 trillion even exist? The thirteen record companies that are 
suing file-sharing company Lime Wire for copyright infringement 
certainly thought so. When they won a summary judgment ruling last 
May they demanded damages that could reach this mind-boggling amount, 
which is more than five times the national debt.

Manhattan federal district court judge Kimba Wood, however, saw 
things differently. She labeled the record companies' damages request 
"absurd" and contrary to copyright laws in a 14-page opinion.

The record companies, which had demanded damages ranging from $400 
billion to $75 trillion, had argued that Section 504(c)(1) of the 
Copyright Act provided for damages for each instance of infringement 
where two or more parties were liable. For a popular site like Lime 
Wire, which had thousands of users and millions of downloads, Wood 
held that the damage award would be staggering under this 
interpretation. "If plaintiffs were able to pursue a statutory damage 
theory predicated on the number of direct infringers per work, 
defendants' damages could reach into the trillions," she wrote. "As 
defendants note, plaintiffs are suggesting an award that is 'more 
money than the entire music recording industry has made since 
Edison's invention of the phonograph in 1877.'"

While Wood conceded that the question of statutory interpretation was 
"an especially close question," she concluded that damages should be 
limited to one damage award per work.

"We were pleased that the judge followed both the law and the logic 
in reaching the conclusion that she did," said Lime Wire's attorney, 
Joseph Baio of Willkie Farr & Gallagher. "As the judge said in her 
opinion, when the copyright law was initiated, legislatures couldn't 
possibly conceive of what the world would become with the internet. 
As such, you couldn't use legislative history. Instead, the 
overarching issue is reasonableness in order to avoid absurd and 
possibly unconstitutional outcome." Baio, who is scheduled to 
represent Lime Wire when the damages trial begins on May 2, joked 
that the money that the record companies sought from his client would 
be better spent on paying for health care or wiping out the national 

Glenn Pomerantz of Munger, Tolles & Olson, who represented 13 record 
company plaintiffs, did not return requests for comment.
So, $75 trillion dollars is now the industry's latest 'fair estimate' 
just for music pirated on the Limewire service... and the world 
economy only amounts to about 120 trillion annually. God knows what 
the other torrent promoters and copyright mediums would add to this 

Who wants to bet that these hoons (AFACT included) soon estimate 
their losses at 100 times higher than than the world GDP?

On the appeal ... I doubt the High Court will grant them leave to 
appeal, especially given that the arguments and law adjudicated on by 
the Federal Court were pretty clear. Under copyright law as it stands 
it is not the responsibility of third parties to pay for upholding 
the copyright of another ... that responsibility vests with the 
copyright holder or licensee. (Of course the industry is trying to 
get the government to take on this cost by criminalising copyright 
law ... but this is irrelevant in the context of the iiNet decision.)

At 7:48 PM +1100 24/3/11, Jan Whitaker wrote:
>"HOLLYWOOD'S landmark legal bid to make internet companies
>responsible for online copyright infringement is bound for the Sydney
>High Court.
>The group of 34 companies has lodged an application for special leave
>to appeal a full bench Federal Court decision in February upholding
>Justice Dennis Cowdroy's landmark 2010 ruling that Perth ISP iiNet
>had not authorised its customers to infringe copyright online.
>The application will go to a special hearing in the High Court in
>Sydney which could be heard by up to seven judges. It's expected that
>the hearing is likely to take place around August or September.
>iiNet chief executive Michael Malone today said that the ISP would
>defend the court's rulings.
>"We have already won this case in the federal court and the appeals
>court. There's no surprise that they are applying to appeal of course."
>   [more at the site]
>Melbourne, Victoria, Australia
>jwhit at janwhitaker.com
>blog: http://janwhitaker.com/jansblog/
>business: http://www.janwhitaker.com
>Our truest response to the irrationality of the world is to paint or
>sing or write, for only in such response do we find truth.
>~Madeline L'Engle, writer
>_ __________________ _
>Link mailing list
>Link at mailman.anu.edu.au

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