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Re: Actual Damages in JMRI Case


From: Alexander Terekhov
Subject: Re: Actual Damages in JMRI Case
Date: Sat, 07 Nov 2009 17:57:22 +0100

Tim Smith wrote:
> 
> In article <address@hidden>,
>  Alexander Terekhov <address@hidden> wrote:
> 
> > http://jmri.sourceforge.net/k/docket/352.pdf
> > 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.

Probably not as long as market for streaming has not eliminated the DVD
market. 

Different market values.

How does that relate to the JMRI case?

regards,
alexander.

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)


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