Messages

1

Site Updates / Re: The Month That Could Have Been Announcement

« on: May 29, 2009, 02:02:39 pm »

Statutory copyright infringement can be tried as a federal misdemeanor in criminal court under some circumstances, resulting in a possible $30,000 fine and 1 year in jail.

While true, a criminal copyright infringment charge would have to be prosecuted by the federal government using public funds, not by SE. I would love to hear a conversation where SE tries to convince a federal prosecutor that a case like this would be worth expending their prosecutorial resources, which are already stretched extremely thin. Granted, I've seen some pretty absurd federal criminal prosecutions, such as one that reached the 7th circuit a month or two ago where the prosecutor's oral argument ended up consisting mostly of trying to avoid answering questions about what kind of penalty would deter such prosecutorial misconduct, but I don't think that's much of a genuine danger here.

The real threat, and the reason I would do the same thing if I were in the position of the CE team, is the substantial risk of being haled into court on a suit for civil damages. Even though the damages would likely be quite low even if their rather unprecedented legal theory was found to have merit, the costs and burdens of litigation are themselves too great a risk for a mere hobby. I am just grateful that we will have the opportunity to see much of the good work that has been done, even if we can't play it ourselves.

2

Site Updates / Re: Cease & Desist Letter

« on: May 12, 2009, 01:50:14 pm »

I am very sorry to hear about this as I had been looking forward to the release for some time now. It's unfortunate, but compliance with the letter is probably a wise choice. As someone with an intellectual interest in IP law, I would be very interested in seeing all the arguments made and resolved because this is really an unusual claim that SE is threatening to bring. I would not, however, want to finance it, so I can't blame the CE team for exercising their discretion.  One of the more interesting arguments (well, to me anyway) is that, at least with regards to a potential civil copyright infringement claim, it should arguably be barred by laches due to an unreasonable delay in asserting their rights. There's currently a split in the federal circuit courts about whether the laches doctrine can apply to copyright infringement claims with the 6th, 9th, 10th, and 11th circuits having held that laches may apply in "unusual" circumstances, and the 4th circuit holding that laches can never bar a copyright infringement claim brought within the statute of limitations.

If this had occurred a couple of years later, then perhaps I could have been of some practical assistance, but under the circumstances I can only offer my moral support for your continuing efforts to advance the series we all love.

Disclaimer: nothing in this post is legal advice or should be used as a substitute for legal advice, no attorney-client or other relationship is intended to be formed, etc...