Best of 2009: “Infinity Dollars” — IP damages and the jury”
This post, which is the first of two parts (the second part can be found at the link at the end) was first posted on June 19, 2009.
A lot of people, including judges, lawyers and civilians, don’t seem to really understand what statutory damages are all about. They are not supposed to be a windfall (discussed more here). But just tell that to the jury that awarded “infinity dollars” — practically — to the Lords of Music for what was indeed knowing copyright infringement of two dozen songs, and to the person on whose head the jury just laid that award.
I’m not an “information wants to be free” nutter, and musical compositions aren’t “information” anyway except to the most heartless utilitarian, but Stan Schroeder (presumably no nutter either, but probably to my left on this issue) hits it right on the head:
In one of the most ridiculous verdicts I’ve seen, the jury decided that Jammie Thomas-Rasset, the first woman who was charged with copyright infringement and offered to settle but decided to fight the RIAA, is guilty and owes the recording industry 1.92 million dollars, or $80,000 per song.
As we mentioned in our original article, Jammie’s case was full of holes, and she probably would have done better if she had just settled with the RIAA. But what’s striking here is the amount of money awarded to the recording industry for infringing the copyright for just one song.
It reminds me of a recent Penny Arcade comic which mocks Microsoft’s Zune Pass, which offers unlimited selection of music for 15 dollars per month; since time never ends, this technically amounts to infinity dollars. Since the music is DRMed, if you ever stop paying, you lose all your music.
It’s just a joke, but it makes a good point. How much is one song worth to you? How much is it worth to the author? How much is it worth to the recording industry? You can push arguments to favor each side, and ultimately you can always claim that a song never fully loses its value and it can therefore be set to an arbitrary, insanely high amount of money.
The problem with this approach is that it results in cases like the one against Jammie Thomas-Rasset, who now has (there are indications that the RIAA is still willing to settle with a much lower amount of money, but it’s irrelevant; what’s important is the principle of the matter) to pay 1.92 million dollars for infringing the copyright of 24 songs.
In a word, it’s stupid.
As this fine roundup of the legal issues from the EFF explains, there are lots of problems with this outcome, including a two-pronged constitutional one — is this unconstitutionally excessive, and is there a different standard on that question when it comes to statutory damages? — as well as the whole issue of what has happened to statutory damages in the hands of the Copyright Congress. Of course, there’s the fact that, as explains, “I assume these arguments will first be submitted to the trial judge in post-trial motions. After all, this judge has already indicated that he found the previous $220,000 award to be “unprecedented and oppressive.”
Seems that way, doesn’t it? (Part II is here.)