Thursday, 25 June 2009 18:28

CAN DOWNLOADING MUSIC COST $9000 PER SONG

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An order to grant a new trial in Capitol Records, Inc. v. Thomas should pique the interest of both music downloaders and music industry executives alike. A jury found the defendant liable for copyright infringement and awarded $220,000 in statutory damages in connection with the copying of 24 songs. The judge, however, ordered a new trial based on an error in the jury instructions, where the instructions were contrary to the precedent set by the Eight Circuit in National Car Rental System, Inc.  v. Computer Associates International, Inc., 991 F.2d 426, 430-31 (8th Cir. 1993)(requiring an actual dissemination of [sic] copies). In the jury instructions, Chief Judge Davis did not require a finding that the defendant actually distributed the works in question but required only a finding that the defendant made the works available to others to download.

The excessively large statutory award of $220,000, based on the only 24 songs, further compelled the judge to vacate the jury verdict. The judge opined that Congress intended that these large statutory awards deter those engaged in piracy for profit and that “it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit….”   In his order, the judge suggested that Congress should address and amend the Copyright Act for liability and damages in these types of consumer cases. As the internet and advancements in technology increasingly permeate the lives of private individuals, copyright holders may face the unfeasible task of enforcing their rights against all infringing individuals. The courts and Congress must, however, protect the interests of intellectual property holders yet not allow large entities to financially ruin an individual for a seemingly minor offense.

Sebastian Ohanian Contributed to this Entry.

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Peter Matos

As a Registered Patent Attorney with a degree in Mechanical Engineering from Rensselaer Polytechnic Institute and a law degree from the University of Miami, Mr. Matos is a Partner with the Firm, is Board Certified as an Expert in Intellectual Property Law, and concentrates his practice in the areas of Patent Prosecution, Litigation, Licensing, and Infringement Opinions. He has been rated as AV Preeminent by Martindale-Hubbell, also receiving a Judicial AV Preeminent Ranking, and presently serves as an adjunct professor in Intellectual Property Law at Florida International University, as well as the Vice Chair of the Miami Beach Convention Center Advisory Board. In addition to serving as an expert witness in the field of patent law, he has appeared on several national and local television programs discussing intellectual property, guest-lectured for business associations, law school and paralegal courses, and spoken at various professional conferences.  Mr. Matos is a published author in the field of Intellectual Property Law and is fluent in Spanish.