De-FUD: Sotomayor’s Stance on Copyright Infringement June 2, 2009
Wired’s Threat Level blog posted an article titled “High Court Nominee Mirrors Industry Copyright Stance.” The post states that President Obama’s recent nominee for Justice Souter’s Supreme Court seat “is embracing the content industry’s party line.”
As evidence, they point to a 1998 opinion in which then-District Court Judge Sotomayor wrote that, “statutory damages must be sufficient enough to deter future infringements and should not be calibrated to favor a defendant by merely awarding minimum estimated losses to a plaintiff.”
First, we need to distinguish the case in which she wrote that opinion from the RIAA cases. The 1998 case dealt with taverns showing boxing matches without a license to show them. That is a wholly commercial use, unlike in the RIAA cases. Additionally, the infringement was willful, and the defendants defaulted on the case, meaning they did not even show up to court.
No one, not even Professor Nesson, questions the right of Congress to impose statutory damages that are greater than the actual loss suffered by the plaintiff. The issue in the RIAA cases is that actual losses are anywhere between 750 times and 150,000 times actual losses. The argument against the RIAA is that there is such a disparity as to make those damages unconstitutional. That issue was not before then-Judge Sotomayor’s court in 1998.
From one case, over 10 years ago, with very different facts from the RIAA cases, it is very difficult to know how she will rule if a case gets to the Supreme Court.
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