Around a month ago I went to court to discuss a case which I counsel with another attorney. The case was quite simple: The plaintiff claimed that the defendant, which we represented, took from its website the technical specifications of a gadget and copied it alongside a phrase describing the gadget. Altogether we represented three defendants which were sought by the same plaintiff (and there was a total of 20 defendants) for 100,000 ILS (~30,000 US$) each.
When arriving to the pre-trail, the plaintiff’s counsel explained to us (and to another counsel sitting on behalf of another defendant) that he is willing to settle, and there is a ongoing rate for settlement. The Judge, which was sympathetic for our interesting legal claims, that copyright could not be asserted on technical specifications, facts or ideas (PCA 8304/09 Bezeq v. Dapei Zahav, C 37759/07 Elisha Shochat v. Maariv), and that the phrase itself was lacking originality and too short to be copyrightable (Hebrew post of copyrighted tweets, CA (TA) 178/79 Hallinger v. Estheron, DR, 1980(2) 45) offered that we settle anyway. She claimed, righteously, that the settlement offer was low enough that it justifies settlement in order to avoid litigation.
And the judge was right: settling the case was lower than the cost of the lawyers in the process and would have been also lower than if it turned out that our clients were right and would have been granted attorney’s fees pursuant to dismissal of the case. Meaning that the copyright bully won: it won a nice sum for something he isn’t entitled to, just because the litigation cost was lower.
But this case is not rare when you look into copyrights: around once a week I’m addressed by persons who received notice due to publication of copyrighted images in their website (usually the same plaintiff by different attorneys), even though some of the cases were fair use, and others lacked any commercial value, the attorneys ask for sums which are a hundred times greater than the sum paid for the image in the free market. For example, Tess Scheflan sought Ynet, Israel’s biggest website (C 58032/07 Tess Scheflan v. Yedioth Internet) for publishing images she published originally on PicShare and was awarded 28,000 ILS, even though the image would have been bought, legally, for no more than a few hundred ILS.
And why was all this required as an introduction? In order to explain why The RIAA offer to Jammie Thomas to diminish their awards granted by half was a strategic move made to hurt users. Thomas is a single mother who was sought by the RIAA for publication of 17 songs through Kaaza. The court first decided that Thomas should pay 9,250$ per song as the jury of her peers found that Thomas made several songs available to the public and infringed the RIAA’s copyrights; but Thomas appealed the ruling.
In the Appeal the District Court ruled that making a work available to the public is not copyright infringement (06-1496 Thomas v. Capitol) and returned the case to the federal court for retrial. In the retrial, the jury ruled that Thomas actually was involved in wilful infringement and awarded the RIAA a sum of 1,920,000$ (04-CV-1497 Capitol v. Thomas).
Thomas appealed this ruling (again) and the district court ruled that the awards granted were unconscionable and exceed any sum a reasonable jury may award (04-cv-1497 Virgin Records of America v. Thomas). The District court conclusion was that the awards should be reduced from 80,000US$ per song to 2,250US$, three times the minimum damages to be awarded by a court; as as the damage was unclear, high awards aren’t adequate.
Even though the court ruled 54,000US$ in damages, the RIAA generously offered Thomas an offer she can’t refuse: remove and revoke the appeal, and we’ll request lower damages, to be donated to a worthy cause.
And why would Thomas decline the offer? she was in a similar situation like the defendants I represented; Her personal interest may rise substantially had she refrain from creating a precedent which will hurt copyright holders (and this isn’t the first time Thomas refused to settle). Thomas knows what we all knew: the RIAA sends threatening letters where they scare innocent file sharers with millions of dollars in damages, as in the case of Joel Tenenbaum who lost a case against the RIAA and as to pay 675,000$.
Now, you must understand that there are law offices which send pre-suit notices and take the same strategy; where claims for fair use, lack of liability, criticism and others arise, they’ll refuse to answer but will leave silently, just in order to avoid a precedent saying they cannot threat others and request outrageous sums for using images in blogs. We need public defendants, people who will go to court just for the sake of not bending when a copyright troll comes in and say the truth: we are facing bullies.