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Last week, news broke that a verdict had been reached in the second of the RIAA‘s court cases against music filesharers. In this case, Joel Tenenbaum was found guilty of having downloaded and redistrubuted songs, and the jury came back with a penalty of $22,500 per song. He actually got off lightly, compared with the first case the RIAA brought to trial, where defendant Jammie Thomas was found guilty of willful infringement and fined $80,000 per song.

There’s a lot of food for thought in these cases (Ben Sheffner’s coverage has been particularly insightful). Both defendants are challenging the verdicts, claiming that the penalties are excessive and unconstitutional, although the law in question calls for fines of $750 to $150,000 per song re-distributed. Many claim that the fine should be closer to the value of one song download, but that’s ignoring the reason for the verdict — it’s not the downloading that’s a big deal, it’s the uploading. Since there’s no way to know how many times each was uploaded, the law provides for statutory damages. Whether those damages are reasonable will be the subject of future court hearings, but note that statutory damages are often used to send a message, to “teach a lesson” to both the defendant and anyone else out there committing the same infringement.

But what’s really interesting to me is that the jurors chose such high figures in the first place. I spend a lot of time keeping an eye on copyright issues, particularly the way new technologies are having an effect on copyright holders and users of copyrighted material. The general consensus online is that our copyright system is broken, that it is being abused by copyright holders, that the RIAA is the root of all evil, and that consumers have lost all respect for copyright, evidenced by the widespread swapping of music files online. The verdicts awarded are making me realize that perhaps I’ve spent too much time inside the internet echo chamber.

The juries in both cases chose figures that were much higher than the minimum allowed by law. Clearly they took the infringement seriously and placed a much higher value on the rights granted the copyright holder than the defendants, their legal teams, and various online pundits expected (note how often you see the phrase “jaw-dropping” in the coverage of each case). If there was great sympathy for filesharers, and if, as alleged, “everybody does it,” wouldn’t the juries have gone for a lower amount? If even $750 per song is excessive, why did the respective juries opt instead for $22,500 and $80,000?

In both cases, the defendants had some serious ethical lapses:

  • Thomas willfully destroyed evidence
  • Tenenbaum apparently kept right on uploading and downloading music even after the lawsuit was filed
  • Both admitted to lying under oath
  • Tenenbaum tried to shift blame onto various friends and relatives

These are clear reasons why a jury would be unsympathetic.

Even so, the figures chosen by those juries send a clear sign that the public’s attitude toward intellectual property is perhaps not as jaded as has been commonly accepted online. Each jury picked a figure that wasn’t in the high range of what was available, but that was certainly high enough to financially overwhelm either defendant. The RIAA has stated that they don’t expect to collect either fine, and that they’re still willing to settle both cases for much smaller amounts. Barring any further court action, I predict we’ll be seeing a rush of settlements for people whose cases are still pending.

While I don’t agree with the RIAA’s strategy of suing their own customers (it’s ineffective and bad for business), it is heartening to see that people still do place a value on creative efforts and that they are willing to send a strong message in hopes of deterring future copyright infringement.

The development of new technologies has led to a rapidly changing landscape, and copyright laws could certainly do with revision and updating to address these effects. But if there is no respect for the law, and no respect for copyright, then trying to work out fair and forward-looking adjustments is pointless.

The juries’ actions here at least show us that there’s still strong support for promoting “Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

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David Crotty

David Crotty

David Crotty is a Senior Consultant at Clarke & Esposito, a boutique management consulting firm focused on strategic issues related to professional and academic publishing and information services. Previously, David was the Editorial Director, Journals Policy for Oxford University Press. He oversaw journal policy across OUP’s journals program, drove technological innovation, and served as an information officer. David acquired and managed a suite of research society-owned journals with OUP, and before that was the Executive Editor for Cold Spring Harbor Laboratory Press, where he created and edited new science books and journals, along with serving as a journal Editor-in-Chief. He has served on the Board of Directors for the STM Association, the Society for Scholarly Publishing and CHOR, Inc., as well as The AAP-PSP Executive Council. David received his PhD in Genetics from Columbia University and did developmental neuroscience research at Caltech before moving from the bench to publishing.


14 Thoughts on "$80,000 per Song, and Perceptions of Copyright"

Many claim that the fine should be closer to the value of one song download, but that’s ignoring the reason for the verdict — it’s not the downloading that’s a big deal, it’s the uploading.

It’s amazing how few commentators seem to understand this. I never see that point made in a news article.

As the author of one of the posts cited above (“copyright system is broken”), let me assure you that I have no illusions that I speak for “the public’s attitude”. Note civil-liberties is almost by definition an anti-majoritarian stance.

Perhaps your blog entry was not the best example, but there’s a strong undercurrent out there that “the public has spoken” and filesharing is the norm.

There’s a post linked below from the Copyright Alliance Blog that does an excellent job describing “social cascades” and how easy it is to reinforce a particular belief set if one stays in the bubble. The same thing happens when one spends a lot of time investigating new online scientific tools, or the open access publishing movement. People who feel strongly about a technology or a cause make the effort to have their voices heard. People who are ambivalent or feel a mild support or dislike for that technology/cause can’t be bothered to join the conversation. Kind of like Amazon product reviews, where you can understand the motivation for leaving a 5 star review or a 1 star review, but why bother with a 3 star review (“the product was adequate”)?

We should also acknowledge that we are operating under a very different value system when it comes to academic intellectual property where sharing is not viewed as a crime, but as an accepted method for disseminating scientific knowledge.

No publisher has ever sued an author for emailing a copy of a published paper to a colleague.

E-mailing a copy of a paper is still a one-to-one distribution, the equivalent of making someone a tape of an album or a copy of a cd. As far as I know (despite some early efforts resulting in the Home Recording Act) the RIAA doesn’t seem to be going after people who do this.

I’d be curious to know if any publishers out there have experience with authors putting up the pdf’s of their papers on their lab’s website (a much wider distribution scheme) and if this is something that’s tacitly allowed or if takedown notices are sent out.

The verdicts awarded are making me realize that perhaps I’ve spent too much time inside the internet echo chamber.

Hmmmmn….you think?

I found this by way of Copycense’s Twitter feed, where they said their comments on the cases would be very much in line with yours. Yet when I follow their blog’s advice and actually read the copyright statutes and source materials relating to the cases, I come to much different conclusions about this statement: “Many claim that the fine should be closer to the value of one song download, but that’s ignoring the reason for the verdict — it’s not the downloading that’s a big deal, it’s the uploading. Since there’s no way to know how many times each was uploaded, the law provides for statutory damages.”

On what are you basing these statements?

1. In the Thomas case, the jury instructions indicate downloading (specifically, getting via Kazaa these certain MP3s with metadata indicating they were ripped by ‘scene’ crews) and uploading (specifically, “distribution” to other people via Kazaa) were given equal weight, and in fact there was no distinction between them, for purposes of reaching a verdict – effectively sidestepping the “making available” issue and difficulty in providing proof of uploading. A finding that either downloading or uploading had occurred meant that copyright had been infringed, period, and the defendant was liable for a statutory amount. Given the evidence & statements that the files weren’t her own rips, and given the reported admissions from the plaintiffs that actual distribution is difficult to prove, I’d say that case and its outcome very much were about downloading, and you should not suggest the downloading was irrelevant and that uploading was *the* reason for the verdict. It may not have even been *a* reason.

Tenenbaum’s jury instructions did exactly the same thing, reducing the claim to one of mere infringement via either downloading or uploading or both, it doesn’t matter as long as one occurred. Since he told the judge “I uploaded and downloaded music” and answered “Yes” to the question “Are you admitting liability for all 30 sound recordings,” infringement of some kind had occurred, and there was once again no opportunity to decide whether “distribution” in particular had really occurred.

2. Nothing in the statute confirms your assertion that the range of damages is so high because of the difficulty in proving distribution. Such rationales usually aren’t on the books; just the nitty-gritty of what constitutes an offense and what can be done about it. But tracing the history of section 504 in the congressional record, it’s clear that the intent of the statutory damages was simply to ensure they deter would-be infringers.

All that said, I don’t think this really has any bearing on your point in that paragraph, which was that the statutory damages are being used to “teach a lesson.” It’s just that you seem to want to advance the point of view that it’s all about infringement of the distribution right. But thus far, it’s only about infringement of more general copyright, via uploading *and/or* downloading without license.

I’m not a lawyer either, so do take what I say with a grain of salt. The majority of evidence presented in both cases pointed toward uploading, not downloading. There was suggestion of downloading from the evidence presented:

Seeking to head off the argument that these were all just CD rips, MediaSentry’s Chris Connelly pointed to metadata in numerous songs that suggested the material had itself been downloaded from the Internet. “Bleeding Edge Ripping Crew,” said one. “Uploaded by 0ff$3+,” said another.

But that, at least in my opinion, wasn’t the smoking gun in either case–in both cases, a third party was able to download songs from the defendants, and those downloaded files were presented to the jury. The proof was all based around distributing, not downloading. Also, I’m not sure what part of “I uploaded and downloaded music” makes you think that no re-distribution was shown. Isn’t that exactly what “uploaded” means? Weren’t the copies presented by MediaSentry proof enough, particularly when Tenenbaum agreed that the their testimony was accurate?

You are correct in that the judge’s instructions make it clear that either uploading or downloading is indeed infringement. I think that’s in there to get around the “made available” controversy. Regardless, the judge’s orders tell the jury that any monetary award must address, “the effect of the defendant’s prior or concurrent copyright infringement activity.” I have a hard time believing that a jury thinks the “effect” of downloading one copy of one song was $22,500 or $80,000. Those figures clearly imply that they understood the concept of re-distribution.

A good analysis of the copyright act itself (regarding the mp3.com case) can be found here:

One of the major misconceptions of parties who use copyrighted material without authorization is that they are only liable for the actual profits that they make, or for the plaintiff’s actual loses, if they are found responsible for copyright infringement. That is indeed the traditional measure of damages, and it is set forth in section 504(a)(1) of the Copyright Act of 1976, which says that a copyright infringer is liable for “the copyright owner’s actual damages and any additional profits of the infringer…”

Section 504(c), however, gives the plaintiff another option, namely statutory damages: “[T]he copyright owner may elect, at any time before final judgment is rendered, to recover instead of actual damages and profits, an award of statutory damages for all infringements involved in the action.” The plaintiff, therefore, has a choice of whether to get into a serious battle of the accountants and economists or to ask the court to determine a damage amount that it “considers just,” as stated in section 504(c).

There is a great deal of “wiggle room” with respect to what the court “considers just,” and in 1999, Congress increased the amounts. In cases in which the plaintiff cannot prove that the infringement was “willful,” the Copyright Act allows a sum of “not less than $750 or more than $30,000” per infringement. However, if the court finds that the defendant’s behavior was “willful,” the court has discretion “to increase the award of statutory damages to a sum of not more than $150,000” per infringement.

Therefore, depending upon the judge, her definition of “willful,” and her definition of “just,” a defendant in a copyright infringement suit may face liability of as high as $150,000 per infringement.

While the article does go on to note that statutory damages are often used to send a message, it strikes me as relatively clear why they are available under this law, to avoid the battling economists mentioned above. It’s fairly simple to calculate the actual damages done by downloading a song (the standard price of a similar file, 99 cents). Determining the effect of uploading, however, is not as easy to calculate, and as I understand the law, statutory damages are used for acts where it’s not so easy. If the judge decides the award was given strictly for downloading (or strictly for deterrence), then I assume the figures will be overturned as grossly excessive and unconstitutional.

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