Fri, Feb. 23, 2018
Recognition of Judgment with Statutory DMCA Damages
CK - Washington. Statutory damages under the Digital Millennium Copyright Act can have a punitive effect, resulting in a denial of recognition in a foreign court where the legal system finds punitive elements incompatible and grossly violative of civil action principles, a German court decided in response to a petition to freeze assets of a German company in favor of a U.S. company that had obtained a default judgment for some $8 million in California under the DMCA.
The Leipzig district court explained on February 19, 2018 in docket number 05 O 3052/17 -- presumably, per defendant's counsel, Marian Härtel, Blizzard Entertainment Inc. v. Bossland GmbH -- that a recognition matter does not allow the German court to replace its judgment with that of the foreign court. It would need to respect the international principles on recognition which include public order/ordre public considerations. In this case, the default judgment lacked any explanation of the assessment of statutory damages; the plaintiff had opted under the DMCA to forego actual damages; the number of alleged violations was a mere estimate; and the total of aggregated damages reached an extreme with punitive character.
The court considered American analyses of compensatory damages law as well as of punitive, exemplary and statutory damages law, concluding that statutory DMCA damages can, and in this case do, contain a degree of punitiveness which bars recognition as an incompatible form of damages. Noting that the U.S. default judgment stated that the damages awarded were not punitive, the court analyzed that statement with a result distinguishing the elements of a punitive nature in Germany from that in the United States.
CK - Washington. Statutory damages under the Digital Millennium Copyright Act can have a punitive effect, resulting in a denial of recognition in a foreign court where the legal system finds punitive elements incompatible and grossly violative of civil action principles, a German court decided in response to a petition to freeze assets of a German company in favor of a U.S. company that had obtained a default judgment for some $8 million in California under the DMCA.
The Leipzig district court explained on February 19, 2018 in docket number 05 O 3052/17 -- presumably, per defendant's counsel, Marian Härtel, Blizzard Entertainment Inc. v. Bossland GmbH -- that a recognition matter does not allow the German court to replace its judgment with that of the foreign court. It would need to respect the international principles on recognition which include public order/ordre public considerations. In this case, the default judgment lacked any explanation of the assessment of statutory damages; the plaintiff had opted under the DMCA to forego actual damages; the number of alleged violations was a mere estimate; and the total of aggregated damages reached an extreme with punitive character.
The court considered American analyses of compensatory damages law as well as of punitive, exemplary and statutory damages law, concluding that statutory DMCA damages can, and in this case do, contain a degree of punitiveness which bars recognition as an incompatible form of damages. Noting that the U.S. default judgment stated that the damages awarded were not punitive, the court analyzed that statement with a result distinguishing the elements of a punitive nature in Germany from that in the United States.
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