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.”