Comment by badlibrarian
6 months ago
Agree that a photo of a celebrity and a film containing that celebrity shouldn't have the same number. But a large punitive number in the context of willful infringement seems right to me. And in practice it's all negotiated down anyway, as evidenced by Internet Archive's fourth 30-day stay of its pending $600+ million lawsuit.
"In practice it's negotiated down anyway" is precisely the issue. If they bring a questionable case against you and you think there's a significant chance you could win, but then there's a small chance you get bankrupted, there is unreasonable pressure for you to settle even if the plaintiffs are in the wrong.
I'm not sure what a "questionable case" for willful copyright infringement might look like. Or an example where someone was clearly in the right and got screwed. It isn't the debtor's prison era.
Four factor test seems to be working, even in this case. Don't love it (it goes against my values and what I need to do in my job) but I get it.
Edit: we've triggered HN's patience for this discussion and it's now blocking replies. You do seem a bit long on Google and short on practical experience here. How else would you propose these types of disagreements get sorted? ("Anyone can be sued for anything" notwithstanding.)
There are explicltly no punitive damages in US Copyright law. And the "willful" provision in practice means demonstrating ongoing disregard, after being informed. It's a long walk to the end of that plank.
> I'm not sure what a "questionable case" for willful copyright infringement might look like.
You did anything which it's not clear whether it's fair use or not. Willfulness is whether you knew you were doing it, not whether you knew whether it was fair use, which in many cases nobody knows until a court decides it, hence the problem.
You have to do it in order to get into court and find out of you're allowed to do it (a ridiculous prerequisite to begin with), and then if it goes against you, you have to pay punitive damages?
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