Some people eat, sleep and chew gum, I do genealogy and write...

Tuesday, March 11, 2014

Truth is a Defense

I have been watching the Facebook comments on my recent blog post entitled, "Genealogy, Privacy, Plagiarism, Copyright and more" and decided that some clarification was in order. First, I would like to complement Judy G. Russell for her well reasoned and well founded comments. Well, here goes my update and comments.

At the end of the post I made a short reference to defamation. This cause of actions in a basic tort (personal injury) claim. Currently, the term defamation includes both of the old Common Law causes of action for slander and libel. Judy is absolutely correct, truth is always a defense to a defamation claim. I am not going to go into a long discussion of defamation. Suffice it to say, there have only been a handful of successful defamation cases of record in the entire history of the State of Arizona and I had one of them. Yes, a nasty person could sue and expect to lose, but who wants to be sued even if you can win? If you want to know more about the subject, see The History and Theory of the Law of Defamation. 3 Colum. L. Rev. 546 (1903) History and Theory of the Law of Defamation; Veeder, Van Vechten.

Now the issue of damages. The statute that governs damages in copyright cases is Title 17 of the United States Code, Sections 504 and 505. Here are those sections for reference:

§ 504. Remedies for infringement: Damages and profits5

(a) In General. — Except as otherwise provided by this title, an infringer of copyright is liable for either —
(1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or
(2) statutory damages, as provided by subsection (c).
(b) Actual Damages and Profits. — The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.
(c) Statutory Damages. —
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in section 118(f)) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.
(3) (A) In a case of infringement, it shall be a rebuttable presumption that the infringement was committed willfully for purposes of determining relief if the violator, or a person acting in concert with the violator, knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement.
(B) Nothing in this paragraph limits what may be considered willful infringement under this subsection.
(C) For purposes of this paragraph, the term “domain name” has the meaning given that term in section 45 of the Act entitled “An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes” approved July 5, 1946 (commonly referred to as the “Trademark Act of 1946”; 15 U.S.C. 1127).
(d) Additional Damages in Certain Cases. — In any case in which the court finds that a defendant proprietor of an establishment who claims as a defense that its activities were exempt under section 110(5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such section, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that the proprietor of the establishment concerned should have paid the plaintiff for such use during the preceding period of up to 3 years.

§ 505. Remedies for infringement: Costs and attorney's fees

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs.

As you can probably tell from all this, proving damages is quite difficult to do, except you should note the provisions concerning the discretionary award of statutory damages. Copyright violation can be a very serious matter. Under today's copyright law, if the violation of the copyright is done by appropriating the wording of the original, with or without attribution, there is a cause of action. In my opinion, plagiarism is also a serious issue, but is not, in and of itself, the basis for a legal cause of action.

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