Quote:
Originally Posted by Alisa
I hope you don't mind if I ask a quick question. A few pages ago a couple of us suggested the idea that maybe if Amazon didn't use all remedies available to them to mitigate the impact of the unauthorized book, they could be more vulnerable. Is that true?
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This is tougher to answer than it seems.
Technically speaking, "mitigation of damages" refers to the duty of the person
claiming injury to do what is reasonable to prevent the injury to be worse than it might otherwise be.
So, for example, if you have a contract with me to sell me bananas at a dollar a bunch, and you bring the bananas around but I reject them for whatever reason, even a totally bogus one, you have a duty to try to sell the bananas to someone else. You can't just let them rot & expect a court to force me to pay the buck, unless no one else will buy them at any price. If someone else would pay you 90 cents a bunch, all you can get out of me is the extra dime, even if you don't actually sell them.
So what Amazon is doing here is not technically "mitigation." What they might be doing is trying to convince the copyright holder not to sue by restoring the situation to what it should have been in the first place - namely, that the books should not have been sold at all. It's part of an attempt to settle the matter out of court.
If things were to get to the point of a lawsuit, I'm not sure that deleting the books would have much of an impact.
The law deals with infringement, and the infringement occurred. Deleting the books doesn't change that. Amazon
could be trying to get in a posture such that if it is sued, the "statutory damages" under section 504(c) of the Copyright Act will be kept down. It seems pretty probable that the copyright owner's actual damages would be less than the statutory ones, and the copyright owner gets to elect which kind it wants to try for. The court has some discretion about how much statutory damages will be, and Amazon would want to be able to argue that the whole thing was just an unfortunate misunderstanding, so they shouldn't pay more than the minimum. Or they could be trying to avoid the court issuing some kind of injunction about their business practices in accepting uploaded books in the first place, by demonstrating that one is not needed because they can quickly recover any books "inadvertently" sold.
But it is not altogether clear to me that Amazon actually had the legal right to delete the ebooks. It might be hard to go into court and argue that the statutory damages should be kept to the minimum because they unilaterally deleted the books, perhaps without the legal right to do so. The copyright owner could argue that Amazon deserves to be hit hard, because they are creeps that both infringe on copyright
and screw their customers when they get caught.
Ultimately, though, I don't think that Amazon is trying to limit its vulnerability. I think it's trying to avoid a lawsuit in the first place by trying to conciliate the copyright owner. Step one, delete the books. Step two, offer a cash settlement. Everybody's happy. Except, of course, the guys who, in good faith, bought the ebooks.
PS. Don't assume I'm the only lawyer on this thread. I might just be the only one who will admit it. There are a couple of posters I could mention <cough> lfrk <cough> who exhibit a disturbing ability to engage in legal reasoning.