Dec 02, 2013, 16:15 pm
You may have seen the story over the weekend that the US government had settled a copyright infringement lawsuit filed against it by Apptricity for $50 million. Basically, the Army licensed Apptricity's server and device software for $4.5 million in 2004, but with a limited number of licenses -- which worked out to $1.35 million per server and $5,000 per device. The Army completely blew through the limit and installed it on another 100 servers and 9,000 devices (the government then tried to hide this from Apptricity). Apptricity noted that, at the existing deal's terms, the Army would have owed it an additional $225 million. The government, of course, settled for $50 million, leading some to note that it appears that by infringing, the government effectively got a 73% discount. Not bad -- though that does assume that the government would have licensed the same number (and that there wouldn't have been some sort of bulk discount).
That said, what strikes me about this is that at the very same time that the Army was ignoring all of this and clearly infringing on the terms of its license, the US government has been pushing a zero tolerance approach to copyright infringement both at home and around the globe. You have Homeland Security and the Justice Department both ramping up prosecutions of intellectual property violations. You have the US State Department going around the globe pushing for stricter and stricter enforcement. And, of course, you have the USTR trying to negotiate draconian criminal penalties into international agreements for copyright infringement.
Hell, if we count each excess installation as a separation copyright violation (and, for what it's worth, there's a reasonable argument that under copyright law multiple installations of the same file only counts as a single violation, rather than multiple -- but the DOJ itself has argued that each copy should count as an individual infringement), and then multiply by the $150,000 that's the top of the line for statutory damages for willful infringement (which this appears to be), the government would have had to pay somewhere around $1.4 billion. And, again, the DOJ itself has regularly argued in court that $150,000 per infringement is perfectly reasonable.
And yet, here, when the US government itself has to pay up, suddenly it gets to do so at a great discount? And this won't change a damn thing in how the rest of the government goes around the globe pushing for extreme punishment for infringement, insisting super high statutory rates are needed to "teach a lesson." Apparently, though, it's a lesson that doesn't apply to the US government itself.
This is part of what's so ridiculous with statutory damages. Copyright holders and maximalist defenders insist they're reasonable... until they realize that they're also infringers. And then suddenly they think it's reasonable for a much, much, much lower number. What a bunch of hypocrites.
Source
That said, what strikes me about this is that at the very same time that the Army was ignoring all of this and clearly infringing on the terms of its license, the US government has been pushing a zero tolerance approach to copyright infringement both at home and around the globe. You have Homeland Security and the Justice Department both ramping up prosecutions of intellectual property violations. You have the US State Department going around the globe pushing for stricter and stricter enforcement. And, of course, you have the USTR trying to negotiate draconian criminal penalties into international agreements for copyright infringement.
Hell, if we count each excess installation as a separation copyright violation (and, for what it's worth, there's a reasonable argument that under copyright law multiple installations of the same file only counts as a single violation, rather than multiple -- but the DOJ itself has argued that each copy should count as an individual infringement), and then multiply by the $150,000 that's the top of the line for statutory damages for willful infringement (which this appears to be), the government would have had to pay somewhere around $1.4 billion. And, again, the DOJ itself has regularly argued in court that $150,000 per infringement is perfectly reasonable.
And yet, here, when the US government itself has to pay up, suddenly it gets to do so at a great discount? And this won't change a damn thing in how the rest of the government goes around the globe pushing for extreme punishment for infringement, insisting super high statutory rates are needed to "teach a lesson." Apparently, though, it's a lesson that doesn't apply to the US government itself.
This is part of what's so ridiculous with statutory damages. Copyright holders and maximalist defenders insist they're reasonable... until they realize that they're also infringers. And then suddenly they think it's reasonable for a much, much, much lower number. What a bunch of hypocrites.
Source
