Damages DA - Michigan 2024 BFHR

DA - Damages - BFHR
1AC CX
vs patents:
post plan, are there more patents? do patent owners get more damages or injunctions?
read if they say yes
vs copyrights:
what kind of infringement remedies are provided when copyright is violated post plan?
read if they say damages, injunctions, or criminal
notes
okay i really really like this disad because it’s case specific, external, and also functions as a case turn. i was given about 3 days and a dream to construct this file on my own so sorry i didn’t get much done (im sure i will come up with a trademark version during the season, i can give it to you if you ask me), but here’s the explanation for what is actually in the file
this is a da to damages and injunctions. it’s like a wombo combo of patents/copyright/ipr/innovation bad, also the econ da, elements of a lot of different things, but it can’t be answered in the same way which is why i really like it
jimin can you please edit into the dropbox this notes section instead of what's in there? i forgot to actually explain what the da says LOL
okay i really really like this disad because it’s case specific, external, and also functions as a case turn. i was given about 3 days and a dream to construct this file on my own so sorry i didn’t get much done (im sure i will come up with a trademark version during the season, i can give it to you if you ask me), but here’s the explanation for what is actually in the file
this is a da to damages and injunctions. it’s like a wombo combo of patents/copyright/ipr/innovation bad, also the econ da, elements of a lot of different things, but it can’t be answered in the same way which is why i really like it
there are two versions of this da:
copyright - it says that copyright infringement is low now, and the plan obviously increases that. i fear that 2acs will say no they dont, but this puts you in a really good spot because that near zeroes solvency and then you dont need the da. i think people will find this unexpected though, so you can just ask for the link in 1ac cx which i put in this file. increased infringement for copyright diminishes freedom of speech, because people will just sue each other for things they want to be their ideas, and when people dont have sufficient access to freedom of speech they cant be the free base to protect against the us becoming a totalitarian state, which caps existential risks because the us needs to be democratic to collaborate with other countries on those types of things.
patents - this is functionally patents bad but as an external impact instead - it just says that increased patent eligibility or whatever the aff does causes more patent injunctions and damages, which causes other smaller businesses or firms to be constantly sues. the da says those businesses are the key to innovation, and then it's just a big innovation impact! the reason i think it's distinct from patents bad, is because it's about the EFFECTS of the patents after they happen instead of just patents themselves so theoretically you can read a counterplan that increases patents but just stops them from resulting in more injunctions or damages (civil enforcement instead of criminal!)
yall know where to reach me if you have any questions, im sure i will churn out more cards for it as well so just let me know!
loves,
kailey
Topshelf
1NC---Copyright
Damages DA
The recent Chappell decision ensures that copyright infringement will go down in the future. EVEN IF they win a claim that they might slightly tick up, our evidence assumes that and says the Court is likely to close that door in the future.
Mark Lerner 24, 1994 cum laude graduate of New York University School of Law, where he was an editor of the competitions division of the Moot Court Board, and a graduate of Haverford College, 5/16/24, “Supreme Court Opens a Door for Copyright Infringement Damages – But Will It Be Closed in the Future”, https://www.duanemorris.com/alerts/supreme_court_opens_door_copyright_infringement_damages_but_will_it_be_closed_in_future_0524.html, kcab
The Supreme Court of the United States issued a much-awaited decision on May 9, 2024, in Warner Chappell Music, Inc. v. Nealy, resolving a circuit split in favor of copyright plaintiffs and rejecting a “three-year damages cap” on the recoverable damages for infringement claims. In a 6-3 decision, the Court held that so long as a plaintiff’s claims are timely, “[t]he Copyright Act contains no separate time-based limit on monetary recovery,” and accordingly, damages are not restricted by the three-year statute of limitations period described in 17 U.S.C. § 507(b). The Court, however, was careful to limit its decision to damages, and explicitly did not opine on whether a plaintiff’s claims brought after the three-year limitations period under the “so-called discovery rule” would be timely in the first place. Thus, while the decision is a clear victory for copyright plaintiffs in cases when the discovery rule applies to claims brought more than three years following an infringement, this victory may be short-lived pending future guidance from the Supreme Court.
The underlying dispute in Warner Chappell stemmed from purported copyright infringement dating back 10 years before the suit was filed. Since some of the alleged infringing activity occurred outside the three-year statute of limitations period provided by the Copyright Act, the plaintiff relied on the discovery rule. As noted in the Supreme Court’s decision, the timeliness of the lawsuit was not challenged in the lower courts. The sole question presented to the Supreme Court, therefore, was whether the plaintiff could recover damages dating to more than three years prior to the filing of the lawsuit.
The Court granted certiorari to weigh in on a split among circuits stemming from differing interpretations of the Supreme Court’s decision in Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014). The Petrella decision stated that copyright plaintiffs may “gain retrospective relief running only three years back from” the filing of the suit. 572 U.S. at 672. The Second and Ninth Circuits proffered different interpretations of Petrella as the basis for decisions regarding copyright damages available in conjunction with the discovery rule. While the Second Circuit in Sohm v. Scholastic Inc., 959 F.3d 39 (2d Cir. 2020) limited copyright damages to “the three years prior to filing” of the action, the Ninth Circuit ruled the opposite way in Starz Entertainment, LLC v. MGM Domestic Television Distribution, LLC, 39 F. 4th 1236 (9th Cir. 2022), holding that a plaintiff may recover damages beyond three years from the date of filing so long as the claim is timely under the discovery rule. Although the trial court in Warner Chappell followed the Second Circuit’s interpretation of a three-year damages bar for a timely claim, the Eleventh Circuit reversed and allowed the plaintiff to seek damages on any infringement claims that were timely under the discovery rule. The Supreme Court agreed with the Eleventh Circuit’s position, noting that the three-year period in the Copyright Act is a “time-to-sue prescription” and the Act is otherwise silent on damages, even in the remedial sections, and thus affirmed.
Lurking in the background of this victory for the plaintiff, however, remains the question of whether such claims are in fact timely under the Copyright Act. Under the discovery rule, a claim accrues (i.e., starts the relevant limitations period) when a plaintiff discovers, or with due diligence should have discovered, the injury that forms the basis for the claim. Without the discovery rule, a copyright claim generally accrues when the infringement occurs and the plaintiff can file suit and obtain relief under the “incident of injury rule.” The Supreme Court deliberately left open whether a claim brought more than three years after the infringement occurred may be timely under the discovery rule, finding only that the Copyright Act “contains no separate time-based limit on monetary recovery.” The dissenting justices took issue with this approach, noting that they would have “awaited another [case] squarely presenting the question whether the Copyright Act authorizes the discovery rule” rather than deciding the damages issue now.
In fact, the Supreme Court currently has pending on its docket Hearst Newspapers, L.L.C., et al., v. Antonio Martinelli, in which this very question has been presented. The Court has not yet decided whether to grant certiorari. If the dissent or oral arguments in the Warner Chappell case are any indication, the Supreme Court may be interested in answering this “antecedent question,” as it is characterized by the dissent. Although the dissent in Warner Chappell casts a shadow over the availability of the discovery rule since at least three justices appear ready to limit its scope in copyright cases, the majority opinion may imply a willingness to increase available damages at least in some instances. Even the three dissenting justices seem to acknowledge that the discovery rule could apply in instances of fraud or concealment, albeit not cases in which the plaintiff simply did not discover the infringement until after the limitations period had run.
Although the Warner Chappell decision provides a victory for copyright plaintiffs seeking damages for infringements dating back further than three years, it bears noting that this only provides relief where the discovery rule applies. Thus, the decision nevertheless provides an important reminder for copyright owners to diligently monitor their works and to promptly take action regarding claims of infringement. While the discovery rule is currently available to plaintiffs, there remains a threshold requirement of reasonable diligence, aside from the (potentially imminent) possibility that the Supreme Court will further limit or close this door in the future.
Criminal overenforcement of copyright remedies infringes on freedom of speech.
Miriam Marcowitz-Bitton et al 23, ISEF Scholar, she received her BLL and MLL degrees at Bar-Ilan prior to earning her PhD at the University of Michigan School of Law as an ISEF International Fellow, Orit Fischman-Afori & Hillel Billauer , Volume 30 Issue 2, George Mason Law Review, “The Future of Criminal Enforcement of Copyright: The Promise of Civil Enforcement”, https://lawreview.gmu.edu/print__issues/the-future-of-criminal-enforcement-of-copyright-the-promise-of-civil-enforcement/, kcab
IV. Reconsidering Criminal Copyright Enforcement
This Article details a few clear trends in U.S. copyright law. While the criminal penalties for copyright violations have gradually expanded in terms of both their severity and the types of conduct for which they may be imposed, criminal sanctions are hardly applied in practice. The number of criminal charges for copyright violations has steadily decreased over the last two decades.225 At the same time, however, civil enforcement measures have proliferated. These trends, which may reflect the many theoretical inconsistencies inherent in criminalizing copyright violations, force us to reconsider whether the criminalization of copyright infringement achieves the underlying goals of copyright law, and whether criminal penalties are ever justified in this context.
Two decades of experience with expanding criminal penalties for copyright infringement suggest that these increased penalties have not had a significant deterrent effect.226 The severe criminal penalties now available for copyright infringement, including fines and jail time (or both) have not had a lasting impact on the incidence of copyright infringement.227 A number of factors may contribute to this disappointing result, including the lack of both systematic enforcement and imposition of criminal penalties.228 Due to the significant amount of online copyright infringement, effective deterrence requires a greater investment of resources into criminal enforcement than they currently receive. It is difficult to determine the optimal allocation of resources for copyright enforcement at any given time, especially in the digital age where copyright infringement is increasingly common and dynamic. Difficulties in tracing, identifying, and locating infringers in the online sphere, who frequently use sophisticated technological to avoid detection, make criminal enforcement in the digital age much more complicated.229 Moreover, budgetary constraints may limit the extent to which effective copyright enforcement can be achieved through criminal prosecution.230 In contrast, the private sector may be better equipped with the resources required to enforce copyright infringement through civil frameworks.
Compounding these difficulties is the public’s general failure to perceive copyright infringement as morally wrong.231 Together with the low likelihood that infringers will be caught and charged, these factors generate a vicious cycle that undermines the success of criminal enforcement measures.232 Moreover, criminal enforcement of copyright—especially when it targets end users and noncommercial uses—may cause significant harm to the freedom of speech and deter the public from engaging in legitimate and positive uses of creative works.233 A cost-benefit analysis may thus lead to the conclusion that criminal enforcement of at least some types of copyright infringement is not justified from a public-interest perspective. For these reasons, reconsidering copyright criminal enforcement seems necessary.
In reexamining the role of criminal law in the copyright realm, special attention should be paid to newly introduced business models that have significantly reduced the consumption of infringing content online. Platforms such as Netflix, YouTube, Spotify, and Apple Music have created a major change in how viewers and listeners consume copyrightable content.234 The number of users of these platforms has grown significantly in recent years, resulting in higher rates of legal consumption of copyrighted content and correspondingly lower rates of infringement,235 arguably easing the need for criminal enforcement measures from a public-interest perspective.
It is time to reevaluate the role of criminal penalties in the enforcement of copyright, as well as whether copyright violations should be considered criminal offenses at all. Copyright law must strike an appropriate balance between incentivizing creators and protecting users’ rights. Realpolitik dynamics would probably maintain existing avenues for criminal enforcement of copyright alongside the emerging and increasingly powerful civil enforcement package. Yet, to balance the interests at stake, the government should impose criminal sanctions only against large-scale, commercial infringers. The PLSA seems to reflect this balance, and indeed, the industries’ hope is that the PLSA will result in a significant change in the use of criminal measures against copyright infringement.236 Whether it does so in practice remains to be seen.
A more balanced design may lead to greater feelings of solidarity regarding enforcement of copyright and to a deeper internalization of the norms and values underlying copyright law, which may, in turn, lead to wider compliance. Instigating such a change is no small task, and educational and explanatory measures should be part of the general enforcement effort. Such measures, which are minimally invasive, have been successful at achieving social change in many other fields and situations, and they may have an important role to play in copyright enforcement as well.237
Conclusion
For the past two decades, copyright law has faced a growing crisis. All of the relevant stakeholders are dissatisfied with the legal regime. On the one hand, users argue that copyright law does not promote a “fair” and “balanced” regime. Rights holders, on the other hand, complain about the regime’s inefficiency. The term “copyright wars,” coined in the 2000s, describes the ongoing clash between these complex interests. Policymakers have introduced various measures to resolve this crisis. One path focuses on reexamining the exceptions and limitations to copyrights as a vehicle for promoting fairness. Another focuses on remedies as an essential and pragmatic aspect of the legal regime. Enforcement is a key factor in this latter path.
While both criminal and civil remedies exist for copyright violations, criminal enforcement has declined, while civil enforcement remedies are thriving. Rights holders today have several civil enforcement measures at their disposal to address infringement in the current digital environment. While these remedies are controversial, they nevertheless provide a powerful enforcement package with synergistic deterrent effects. In addition, the digital era has introduced new business models that promote legal consumption of copyright works. These developments, as well as underlying theoretical inconsistencies inherent in the criminalization of copyright offenses, cause us to question whether criminal enforcement of copyright is necessary or appropriate. Given the inherently pragmatic nature of rights enforcement, current trends call for a reconsideration of criminal copyright enforcement.
Diminished free speech causes totalitarianism.
Claire Fox 24, publisher of LM (Living Marxism) and set up them Academy of Ideas when LM magazine was closed after a libel action in 2000, 7/2/24, Academy of Ideas, “Free Speech, Censorship, and the Threat of Totalitarianism”, https://academyofideas.com/2024/07/censorship-and-the-death-of-freedom/, kcab [gendered language altered in brackets]
Freedom of speech was once one of the West’s most cherished rights, but in the modern-day governments are attempting to strip us of this right. In almost all Western nations legislation is being introduced to thwart our ability to speak freely. Politicians and bureaucrats justify this anti-free speech stance in the name of the “greater good”. They claim that with more control over what people say, fewer people will be led astray by misinformation and disinformation and fewer people will be harmed by the criticisms and insults of hate speech. In this video we make the case that censoring and criminalizing the expression of misinformation, disinformation, and hate speech is an existential threat to a free and prosperous society.
“To suppress free speech is a double wrong. It violates the right of the hearer as well as those of the speaker. It is just as criminal to rob a man of his right to speak and hear as it would be to rob him of his money.”
Frederick Douglass, A Plea for Free Speech in Boston, 1860
In the West there have long been limits on what can and cannot be said. Property rights create one such limit. A property owner can assert the authority of my house, my rules and expel any individual from his or her premises who says something the property owner wishes not to hear. The principles of common law, which are foundational to many Western legal systems, also recognize speech which threatens the person or property of another, conspires toward the committing of a crime, or incites others to violence, as requiring legal sanction. Laws against defamation and false advertising place additional limits on speech. The purpose of this video is not to argue against the value of these basic limits on our speech – rather our concern is solely with the dangers that arise if governments censor and criminalize what they consider to be misinformation, disinformation, and hate speech.
“…the opinion which it is attempted to suppress by authority may possibly be true. Those who desire to suppress it, of course, deny its truth; but they are not infallible. They have no authority to decide the question for all mankind [humankind] and exclude every other person from the means of judging.”
John Stuart Mill, On Liberty
Disinformation is typically defined as false or inaccurate information that is spread with the inte

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