"That leads to the next point: that a landowner has no proprietary claim to the fruits of a trespass," he said. While the landowner could claim an account of profits in some exceptional circumstances, the authorities do not, however, support the proposition that the landowner could assert a proprietary claim against the trespasser, Newey wrote.
"Suppose, say, that a market trader sells infringing DVDs, among other goods, from a stall he has set up on someone else's land without consent. The owner of the land could not, as I see it, make any proprietary claim to the proceeds of the trading or even the profit from it. There is no evident reason why the owner of the copyright in the DVDs should be in a better position in this respect," he said.
The studios' lawyer had argued that the entire proceeds of a sale should be held on trust for the copyright owner.
"That might both be unfair and stultify enterprise," Newey wrote. "It might not seem just for even a deliberate wrongdoer to have to pay the copyright owner the amount of his gross receipts, and an infringer need not have known that he was breaching copyright," he said. If the studios' submissions were correct, a person might be deterred from pursuing an activity if he thought there was even a small risk that the activity would involve a breach of copyright or other intellectual property rights.
This, as was submitted by Harris' lawyer, would have a chilling effect on innovation and creativity, Newey said.
The MPAA will seek leave to appeal the case because it believes the decision does not take the specific facts of this case into account, a spokeswoman said in an email.
Loek is Amsterdam Correspondent and covers online privacy, intellectual property, open-source and online payment issues for the IDG News Service. Follow him on Twitter at @loekessers or email tips and comments to firstname.lastname@example.org
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