San Francisco - The Electronic Frontier Foundation (EFF) urged a federal court Monday to affirm downsized damages in Sony v. Tenenbaum, a file-sharing case in which a jury originally ordered a college student to pay $675,000 for infringing copyright in 30 songs. EFF was represented by the Stanford Fair Use Project and the Samuelson Law, Technology & Public Policy Clinic in filing the amicus brief.

A federal judge reduced the jury award to $67,500 last July, citing constitutional concerns and basic fairness. The record companies appealed the judge's decision to the 1st U.S. Circuit Court of Appeals. In Monday's brief, EFF argues that the judge was right to try to ensure that damages in infringement cases bear a reasonable relationship to actual harm.

"The Supreme Court has ruled that courts should review statutory damage awards to ensure they are not grossly excessive," said EFF Intellectual Property Director Corynne McSherry. "But unfortunately, courts have often failed to do so. This is an opportunity for the appeals court to clarify copyright law for creators and guarantee they have their due process rights."

Right now, it is difficult to predict copyright damages. Any creator who relies on an untested theory of fair use or other copyright exemption could be forced to pay up to $150,000 per work if she loses in court. This threat chills start-up companies and online artists as well as libraries and digital archives that may need to enter uncharted areas of copyright law in order to innovate.

"The fundamental purpose of copyright law is to encourage innovation, creativity, and the dissemination of information," said McSherry. "But the fear of crushing liability chills vital experimentation and creativity. Due process review can help bring damage awards back in line with copyright's purpose."

For the full amicus brief:


Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation

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