tag:blogger.com,1999:blog-12505562.post2305770367224430394..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: Burden of Proof in Profits ClaimsWilliam Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-12505562.post-61305665504658883042007-12-28T11:58:00.000-05:002007-12-28T11:58:00.000-05:00Whatever the reasons for denying the opinion prece...Whatever the reasons for denying the opinion precedential status, it is hard to think of a defensible one: after all, the opinion reveals important aspects of how at least three judges on that court, including the chief judge, think about the issues.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-87829106813431079912007-12-28T11:44:00.000-05:002007-12-28T11:44:00.000-05:00If this opinion were indeed published it would aff...If this opinion were indeed published it would affect many copyright cases. On the surface it would appear that this profit connection is ignored in copyright cases. It is always assumed that the defendant's profits are a result of use of the infringing material - else they wouldn't have used it (innocently or not). If the profit connection were applied, it could substantially reduce the damages awarded.<BR/><BR/>This is interesting in light of Getty Images and Corbis seeking damages for alleged infringement through the use of their images. They claim they can pursue the maximum damages allowed by law, but technically the damages awarded would depend (in part) on the increase in profits generated from the use of their images. Such a determination would indeed be difficult to prove, especially since they are currently pursuing small business owners who have yet to show a substantial profit in the first place.E Melanderhttps://www.blogger.com/profile/07954364009385391625noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-24322951999162833402007-12-27T14:03:00.000-05:002007-12-27T14:03:00.000-05:00I'm surprised that you're not talking about anothe...I'm surprised that you're not talking about another part of this case: the copyright in the agreement itself! Attorneys constantly reuse language (from all sorts of different places) when preparing new documents. <BR/><BR/>On the surface, it seems like there shouldn't be any difference between attorney work-product and any other kind of work. But, look closer and you'll find no attorney ever drafts from scratch -- they always reuse language from existing documents.<BR/><BR/>It seems to me that the copyright in most attorney work product has to be extremely thin -- it's very functional language, with formalistic constructs and scenes-a-faire. It's not a place for "creative" expression.<BR/><BR/>I wonder if the 4th Circuit decided to mark this opinion as non-precedential precisely because it didn't want to open up this can of worms.Christopher Fulmerhttps://www.blogger.com/profile/16543538534660568711noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-69352055323589899672007-12-27T13:59:00.000-05:002007-12-27T13:59:00.000-05:00to Anonymous 9:44:Re: your hypos -- neither cake r...to Anonymous 9:44:<BR/><BR/>Re: your hypos -- neither cake recipes or the design of a bench are copyrightable as such. Prior to passage of the AWCPA, that was the rule for architectural works as well -- because a building was considered to be a "useful article," the construction of the building depicted in a set of plans wasn't an act of infringement, and profits from such construction was recoverable as indirect profits (if at all).<BR/><BR/>Post-AWCPA, however, a constructed building *is* considered to be a copy of the protected architectural work. (The law changed in order to bring the US into compliance with its treaty obligations under Berne, which required US law to protect architectural designs.) Indeed, as CTA1 recently reaffirmed in the T-Peg case, the "separability" test that applies to most copyrighted works simply has no application to architectural works.<BR/><BR/>As such, you treat the construction and sale of an AWCPA-era building the same as you would treat the creation and sale of other copies of protected works (books, DVDs, etc.): the profits from the creation and/or distribution of an infringing item are recoverable under 504(b).<BR/><BR/>Can that result in large awards in AWCPA cases? Certainly it does -- I took a $5.25 million judgment (based solely on 504(b) profits evidence) several years ago in a case where the licensing fee (and thus the recoverable actual damages) would have been under $15,000. <BR/><BR/>Is such a result inappropriate? No way. Recall that the actual damages + infringer profits framework of 504(b) is not just to compensate the plaintiff for its damages (cf. the reasonable royalty damages remedy under patent law), but to deter infringement by forcing a disgorgement of the profits arising from the illegal activity. Merely awarding compensatory damages rewards infringement, insofar as such a rule allows a party to infringe and, if caught, pay only what it should have paid up front. Stated differently, the purpose of the profits recovery is to make it more expensive to steal than to obey the law.<BR/><BR/>LKB in HoustonAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-73290175204329836382007-12-27T11:44:00.000-05:002007-12-27T11:44:00.000-05:00I have always struggled with this part of damages,...I have always struggled with this part of damages, particularly in the context of architectural works and similar kinds of infringement cases. Suppose that X infringes a cake recipe, and makes $10K off of selling cakes from that recipe. Or builds a bench from an infringing drawing of a bench. The construction of the bench is not an infringing act, and the sale of the bench has nothing to do with the infringement. <BR/><BR/>The value of the copyright in the process ought to be the damage to the copyright holder, it would seem--not the profits in these circumstances. Otherwise, the copyright turns into a patent.Anonymousnoreply@blogger.com