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Re: Actual Damages in JMRI Case

From: Tim Smith
Subject: Re: Actual Damages in JMRI Case
Date: Fri, 06 Nov 2009 13:46:03 -0800
User-agent: MT-NewsWatcher/3.5.3b2 (Intel Mac OS X)

In article <>,
 Alexander Terekhov <> wrote:

> 505, 512 (9th Cir. 1985)). To determine the work‚s „market value‰ at the
> time of the infringement, the Ninth Circuit has endorsed a hypothetical
> approach which asks „what a willing buyer would have been reasonably
> required to pay to a willing seller for [the owner‚s] work.‰ Id.; see
> also Polar Bear Productions, Inc. v. Timex Corp., 384 F.3d 700, 708 (9th
> Cir. 2004). This is an objective approach, and „hurt feelings‰ has no
> place in this calculus. Mackie v. Rieser, 296 F.3d at 917.

Surely, though, the hypothetical must take into account the details of 
the infringer's use? For example, suppose a movie studio made its movies 
available for free streaming over the net. If someone came along, 
recorded those streams, and turned then into DVDs which they sold, I 
can't see a court, even a Ninth Circuit court, saying that the free 
streams means that the studio would have sold DVD rights for $0.

--Tim Smith

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