Intellectual Property Law

High-Court Nominee Mirrors Industry Copyright Stance ? Update

By David Kravets

When it comes to financial damages in copyright infringement cases, Supreme Court nominee Sonia Sotomayor embraces the content industry’s party line.

The Recording Industry Association of America, which has sued more than 30,000 individuals for file-sharing copyrighted music, routinely seeks hefty monetary awards well beyond the financial losses associated with the pilfered music in question. The same is true with the Motion Picture Association of America, the Business Software Alliance and others content owners suing for copyright infringement.

President Barack Obama’s pick for the Supreme Court appears to back the theory — a false one at that — that large money damages deter copyright infringement.

When Sotomayor was a judge in the Southern District of New York, she ruled in favor of Las Vegas boxing promoter Top Rank, the Exclusive Rights blog points out. In 1996, Top Rank sued a host of taverns for the unauthorized showing of boxing matches.

“A willful infringement, which the magistrate judge found, combined with a willful
default, however, warrant an award greater and more significant than one which corresponds so closely to an estimated loss to the plaintiff,” Sotomayor wrote (.pdf) in upping the damages recommended by a magistrate.

Sotomayor added in that 1998 decision that “statutory damages must be sufficient enough to deter future infringements and should not be calibrated to favor a defendant by merely awarding minimum estimated losses to a plaintiff.”

The RIAA, for example, won a $222,000 judgment against Jammie Thomas in 2007 for pilfering 24 songs on the Kazaa network, although a retrial is set for later this month. The MPAA won a $111 million default judgement against now-defunct Torrenspy, a BitTorrent search engine appealing the 2008 ruling.

Copyright infringement eats billions of dollars in would-be profits from the makers of music, movies, games and software, according to those industries.

Obama’s nominee now sits on the 2nd U.S. Circuit Court of Appeals. If elevated, she would become the first incoming justice to have a cyberlaw background.

That said, the Copyright Act’s $150,000 maximum damage award could get tested under a high court with Sotomayor as one of its nine members.

The Obama administration already weighed in on a pending lower-court case broaching a challenge to the Copyright Act. The Obama administration adopted the same position as the Bush administration, and supported $150,000 in damages per music track in an RIAA lawsuit.

Senate confirmation hearings have not been scheduled.

(This story was updated to reflect Sotomayor’s copyright position reflects the content industry, not just the RIAA’s.)

See Also:

• Obama Taps 5th RIAA Lawyer to Justice Dept.
• No Settlement in RIAA v. Jammie Thomas
• New Jammie Thomas Lawyers Vow to Put RIAA on Trial
• Obama’s Supreme Court Pick Schooled in Cyberlaw
• Court Narrows National Security Secrecy, Limits Oversight
• File Sharing Lawsuits at a Crossroads, After 5 Years of RIAA …
• Hollywood Control of DVD-Copying at Crossroads

Full post as published by Threat Level on June 01, 2009 (boomark / email).