There’s been no shortage of discussion and debate on the $220,000 judgment against Jammie Thomas last week. Among the major questions is whether or not making a song available was a violation of copyright, even without any showing that the song actually was downloaded. This would be a dangerous trend, if the mere possibility of infringement is treated as an infringement. But what keeps grabbing the headlines are the numbers. And with good reason.
This case also shows the lunacy of the current statutory damages limits. The trial court found Thomas liable for violating the copyrights of 24 songs, at a rate of $9,250 per song. Contrast this with the actual loss to the record company, and the absurdity is clear.
It’s understandable that a penalty can be more than the value lost, if only to deter infringement. Of course, when the statutory penalties range from $750 to $30,000 per violation, and can be up to $150,000 for willful violations, raising the penalties gives you diminishing returns on deterrent effects. I’m more likely to take a $20 fine per song seriously, since it is within the realm of reason.
Some may point to the number of P2P users, and the idea that each of the 24 tracks may have been downloaded multiple times. But how many? Surely the particular copies made available by Thomas weren’t each downloaded 9,249 times each. And if each infringer on each of these networks paid that same amount per track, the revenues collected in these judgments would be three times larger than the US’s gross domestic product. (This release notes a study claiming 5 billion downloads, which, multiplied by the $9,250 per-track judgment, gives us $46,250 billion, compared to the US GDP of $13,768.8 billion.)
So what needs to be changed? Clearly, there are different business models that the music industry can pursue to continue making money. There also might be other ways to discourage infringing downloads, too, but clearly, ludicrously high damages awards aren’t doing the trick.
And yet, that’s exactly the solution that some members of Congress and the Chamber of Commerce are proposing. Again and again, IP enforcement bills keep getting floated with increased damages, or forfeiture provisions, in the hopes that this will curb infringement. The Thomas verdict puts the lie to the need for increased penalties. I’m eager to find, for instance, the file-sharer who scoffs at a $150,000 per-song verdict, but who will be scared straight at the thought of a $150,000 per-song verdict and the loss of their computer. When your damages awards are already stratospheric, tacking another thousand dollars on to that doesn’t do anything except compound the lunacy.