How are penalties for copyright infringement determined?

[ebaysucks]

What is the name of your state (only U.S. law)? MA

From what I gather with regards to infringement of music and video files/content a person could be fined between $700-$150,000 per infraction? How is this determined? Is the upper tier only for the RIAA or can poor schmucks like myself reap the same benefits of copyright protection?

My question does go off into another area and question though. Let's just say I know infringement is going to take place and the infringement could be by;


informational sites(those fake sites who like to take people's content and link it to say the owner's ebay page. The creator of such sites gets $$$ for creating traffic)
Commercial sites such as competitors using my content to sell similar products
Or even free sites such as youtube or where ever.

My content will be created, registered with the Library of Congress, and hopefully stored on a site not allowing direct linking(because I think that gets into petty theft or harder for me to prove they blatantly broke down the doors and crossed several thresholds making the matter more significant). How does one measure the damage? If I notice the damage am I obligated right then to issue the DMCA take down notice? And then if they ignore the notice that's when it becomes egregious? Or another scenario would be I happen upon say an ebay listing using my photos or videos registered with the LOC and they are generating revenue, does that increase the penalty? I would think it would be very hard to prove damages. How did the RIAA do it?

What I am really trying to determine is if it is worth my effort to generate intellectual property when I know others will steal it and I may have an incredibly hard time defending my rights. More than likely the violator will be states away. I'm sure ebay will ignore a take down notice they have in the past. If I send one directly to the violator and he complies, does that mean he is off the hook? Is there a safe harbor for blatant violation of of intellectual property for commercial gain? I don't trust the system and feel that it only protects the mega rich.

 

[ecmst12]

Musicians create music because they have a message they want to share with the world. If you don't have a message you want to share with the world, or you only want to share it with people who give you money and NO ONE ELSE, then yes, it's probably a bad idea for you to make music that you let anyone else hear.

 

[ebaysucks]

It will be video demonstrations I would be protecting. I would make video demonstrations of products I sell. My videos will be superior to what others are offering. This will give me an advantage in my market place. Don't I have the right to protect that? Competitors are lazy. They tend to jump on bandwagons. The less effort and money they have to put up from the better for them in their little world. I simply want to know if I can be compensated handsomely if someone attempts to ruin my investment? In todays world it's physically and pretty much technically impossible to prevent a video from being stolen. I need to be able to protect myself after the fact and not just sue for the principle.

 

[quincy]

From what I gather with regards to infringement of music and video files/content a person could be fined between $700-$150,000 per infraction? How is this determined? Is the upper tier only for the RIAA or can poor schmucks like myself reap the same benefits of copyright protection?

Even poor schmucks like yourself can potentially reap the same benefits of copyright protection as the RIAA and movie industry, depending on the facts of and circumstances surrounding your copyrighted work(s) and the resulting infringement of the work(s).

You will probably not experience mass infringement of your work(s) as the recording and movie industries have, or experience the type of piracy where copies of your work(s) are sold and distributed on a wide scale, however, so the damages you may be eligible to collect on your infringed work will not be anywhere close to the massively high amounts of damages awarded in some of the music/movie infringement cases.

If your copyrighted work is registered prior to any infringement (or within three months of first publication of your work), though, you are eligible to collect "statutory damages," which are damages set by law. This is where you can be awarded $750 to $30,000 per infringement (or up to $150,000 per infringement for especially egregious, intentional infringing).

The amount of damages awarded by a court will be based on the evidence presented and the seriousness of the infringement. At the judge's discretion, an award of damages could be as low as $200, for demonstrated "innocent" infringement, so not all copyright holders can expect to see an award as high as $30,000.

If you do not register your work prior to infringement (or within the three month window), you will be limited to collecting on actual damages (your demonstrated losses, the infringers demonstrated profits) which are often difficult to determine. Actual, or compensatory, damages are the actual dollar amounts lost as a result of the infringement. Profits will be the amounts realized by the infringer and can be collectable as damages if they exceed the losses suffered by the copyright holder.

If your work is infringed and it was registered in a timely fashion, then you have the option of collecting either statutory damages OR the actual profits made by the infringer and the losses suffered by you due to the infringement. You cannot be awarded both statutory and actual damages (profits and loss).

You MUST, by the way, register your copyrighted work prior to suing anyone for copyright infringement. Copyright infringement suits are heard in federal courts.

My question does go off into another area and question though. Let's just say I know infringement is going to take place and the infringement could be by; informational sites(those fake sites who like to take people's content and link it to say the owner's ebay page. The creator of such sites gets $$$ for creating traffic)
Commercial sites such as competitors using my content to sell similar products
Or even free sites such as youtube or where ever.

My content will be created, registered with the Library of Congress, and hopefully stored on a site not allowing direct linking(because I think that gets into petty theft or harder for me to prove they blatantly broke down the doors and crossed several thresholds making the matter more significant). How does one measure the damage? If I notice the damage am I obligated right then to issue the DMCA take down notice? And then if they ignore the notice that's when it becomes egregious? Or another scenario would be I happen upon say an ebay listing using my photos or videos registered with the LOC and they are generating revenue, does that increase the penalty? I would think it would be very hard to prove damages. How did the RIAA do it?

See what I wrote above regarding damages. Policing your copyrighted works is up to you, the creator of the works. Halting any infringement on your works is also up to you. This can be accomplished through filing DMCA takedown notices, through cease and desist letters, through settlement demand letters, through copyright infringement lawsuits.

What I am really trying to determine is if it is worth my effort to generate intellectual property when I know others will steal it and I may have an incredibly hard time defending my rights. More than likely the violator will be states away. I'm sure ebay will ignore a take down notice they have in the past. If I send one directly to the violator and he complies, does that mean he is off the hook? Is there a safe harbor for blatant violation of of intellectual property for commercial gain? I don't trust the system and feel that it only protects the mega rich.

It is up to you to decide if it is worth your time and effort to generate creative works. If a work you create is infringed, in whatever manner, it is up to you to decide if it is worth your time, effort and money to pursue the infringer. If you don't trust the system and feel that your works will be unprotected by the current laws, then perhaps making videos is not the line of work you should be in. That said, the majority of copyrighted works will NOT be infringed. Most copyrighted works are not worth infringing on, quite frankly.

But, again, all of this is for you to decide. It could potentially help for you to sit down with an attorney in your area to discuss your concerns and how to best protect your works. There is no way to totally prevent someone from infringing, however. There are only ways to hold an infringer accountable for the infringement after-the-fact.

Good luck, ebaysucks.

 

[ebaysucks]

Okay I'll be very specific. I wish to create product demonstration photography and video for things I'm selling on Ebay. I can tell you right now someone will copy them and use them for their own ad. They do it today and Ebay does nothing. Ebay ignores any emailed DMCA take down notice. They say they want it in writing as in a letter or fax. I think that's pretty ridiculous with how many people steal things these days. So other Ebay seller will take my videos. Now how they take them should be interesting. I'm not sure how it is best to prsent videos since Ebay does not allow video uploads. Youtube is a problem because if you are embedding so can everyone else. And embedding might be construed as petty. I could place the videos on a website(my own hosting site)but there could be problems with Ebay displaying some encrypted video. In other words if the other seller is going to steal my videos I want to make sure they do so through unconventional means. Picture of course will be much easier to steal and will be stolen. Simple as cut, copy and past print screen etc. These other sellers will sell some items. They wont sell millions so more like dozens. Is stealing such content for commercial gain egregious? Or will the courts ask me how much profit I make on the item and multiply that times their sales and say $200 fine total? lol

I'd argue cd's cost pennies to make and downloads less than pennies(almost worth as much as US Dollars Ha!)and it could be argued just because the person downloaded the song doesn't mean they would have purchased it. The items I sell do sell and can't be downloaded. I don't know how many sell per year but it's probably under 1000. That figure would be the total market. There would be several items i would create videos and new photography for. I am sure the sellers who will steal 1 will steal 2, 3, item descriptions etc.

In my market often times product photography becomes almost like the face of the product. I've seen photographs used over and over to sell one product for years and never updated. One photograph can represent an item and be what customers identify with. My aim would be to develop my market place position based upon superior photography and presentation. Will the courts just laugh and said you should have placed a translucent watermark on all your materials and no one would have touched them.

 

[Mass_Shyster]

This is where you can be awarded $750 to $30,000 per infringement.

At the judge's discretion, an award of damages could be as low as $200, for demonstrated "innocent" infringement

Why wouldn't the floor be set at $750?

 

[Mass_Shyster]

Ebay ignores any emailed DMCA take down notice. They say they want it in writing as in a letter or fax.

There is no such thing as an emailed DMCA take down notice. The DMCA calls for a letter or a fax. Some sites will take down an infringing work based on an emailed complaint, but the DMCA does not require that they do so.

 

[quincy]

Why wouldn't the floor be set at $750?

Most copyright holders will ask the court to award them the maximum amount of statutory damages available under the law, or $30,000 per infringement (or $150,000 per infringement if the copyright holder can show willful and egregious infringement). The court will look at what is presented as evidence to make a decision on the amount that should be awarded, plus included in the award will be attorney costs and fees.

Rarely will an infringement with attorney costs be as little as $750 (attorneys cost more than that). Probably more realistic, for a single simple infringement action that includes fees, will be an award in the $10,000 range. This is why settlement amounts demanded will be less than this figure - anywhere from $200 (the minimum amount that can be awarded by a court at the judge's discretion if the infringement is seen as trivial) to $5000 (about half of what seems likely to be awarded in court). Eliminated in a settlement figure will be the costs to bring the infringement to court. The "low" settlement figure is often good enticement for an infringer, who should know that the costs involved in having the matter go to court will be far greater than the settlement amount, especially if they must hire an attorney to handle the matter for them. It is a huge risk for an infringer to count on a court awarding less than the settlement amount (although it is possible).

But it matters if the infringement is determined by the court to be unintentional or innocent. It matters if the court determines the infringement to be intentional or willful. It matters if a copyright holder can demonstrate injury. It matters if the copyright holder can demonstrate loss or an infringer's profits. It matters the type of work infringed and the extent of infringement. It could potentially matter the financial worth of the infringer. It really depends on all of the facts of the infringement.

ebaysucks, if you are this afraid of your work being infringed, and you do not want to defend your copyright in a work (which, admittedly, can be frustrating, time consuming and sometimes costly), then you may not wish to publish your copyrighted works on eBay. Yes, there is a risk that any copyrighted work will be infringed by another. The risk is there. It is entirely up to you to decide if you wish to take the risk, however small it might be, and it is up to you to pursue any infringer. It is up to you how far you will take any pursuit (ie, all the way to court). That is just the way it is.

I suggest you speak with an attorney in your area.

Good luck.

 

[ebaysucks]

Oh admittedly so I only want to nail the infringer and or Ebay. I can easily prevent infringement by watermarking(crude watermarking). Fact is others copy my ideas all the time on Ebay. My ideas work, they copy, they sell and I lose. People aren't born creative but there are nature born thieves. The deterrent factor is cost and the infringer knows it. Blood from a stone is a consideration too. I think perhaps the best thing to do is take the money and run. Tell ebay where to go and develop my own website and protect my property.

 

[ebaysucks]

I sort of suspected that Steve. I also suspect congress who wrote such a bill must still be using rotary phones. With all the piracy out there in cyberville a copyright holder really needs the best tools at his disposal not pen and ink which is no longer relevant today. That law needs to be adjusted.

 

[quincy]

There are some people who believe that copyright holders have too many rights in their works and that it is too easy for copyright holders to sue for infringement and that the amount of statutory damages that can be awarded copyright holders are too high.

But there does seem to be widespread agreement that the copyright laws as they stand currently could use some tweaking.

As a note, ebaysucks, ideas can be used by anyone. Ideas are not copyrightable. It is the way the idea is expressed that can give it protection under the law.

 

[ebaysucks]

My ideas were creative enough. I've observed people over the years who tried to become creative through drug use and anything else they could possibly come up with and they'll conclude something ridiculous like all ideas are copied there are no doors to open to perception and the alike and then there are bohemian, beatnik types like myself who could compose an entire album improv just by reading a music catalog and selecting the words and the sequence I see. The problem is trying to be creative in a market place not known for artistry. At the end of the day you're still selling the same thing and there are too many sellers and the products are not unique enough. Think I'm going to re-focus my creative energy to art. The rat race retail world is painful and without reward or merit.

 

[quincy]

My ideas were creative enough. I've observed people over the years who tried to become creative through drug use and anything else they could possibly come up with and they'll conclude something ridiculous like all ideas are copied there are no doors to open to perception and the alike and then there are bohemian, beatnik types like myself who could compose an entire album improv just by reading a music catalog and selecting the words and the sequence I see. The problem is trying to be creative in a market place not known for artistry. At the end of the day you're still selling the same thing and there are too many sellers and the products are not unique enough. Think I'm going to re-focus my creative energy to art. The rat race retail world is painful and without reward or merit.

Again, "ideas" may be creative and original but, until they are fixed in a tangible form, they are not copyrightable. To protect a creative and original idea from being used by others, you must keep the idea to yourself until you can put it in a form that is copyrightable and protectable under the law.

Although I suspect with any art you create you will experience the same or similar concerns over copyright infringement that you have now in your retail field, I wish you much luck and success with a new venture, and I wish for you a future free of infringement.

 

[ecmst12]

Sounds to me like your ebay store is not doing so well so you are looking to turn copyright infringement into an additional source of income. Good luck with that

At any rate, have you never heard of an e-fax? You don't need a pen, ink, or a fax machine, it works just like an email.