This topic angers me.  Fines for infringement under the Copyright Act range from $750 to $150,000 per infringement.  That’s a wide spectrum!  More disturbing is that the Act leaves the pricing decision in the hands of the judge, without any real guidelines for them to follow.

This week, a judge ordered Whitney Harper to pay $27,500 for illegally downloading 37 songs…I’ll do the math for you – that’s $750 a song, i.e., the minimum allowed.  Earlier this year, Joel Tenenbaum was held liable for $675,000 for file sharing 30 songs – that’s $22,500 per song.  It gets better.  Nearly a year ago, Jammie Thomas-Rasset was ordered to pay $1.92 million by a jury for downloading 24 songs…$80,000 per download!  How does the court conclude how much to, for lack of a better word, charge per song?  Is it based on the popularity of the song?  Does Lady Gaga or Jay-Z rank higher than Skid Row or Journey because the former are currently more mainstream?

Is it fair or just?  Does it take $22,500 or even $80,000 per song to teach a lesson to the infringer?  Will raising the maximum limit of the fine to $1 million per infringement make the message clearer?  Will any price hammer home the message that infringement is illegal?  Is the money paid by the defendants actually going to the artists?  After a brief Google search, I was surprised to find out that the RIAA keeps the money.  (See http://torrentfreak.com/riaa-keeps-settlement-money-080228/) If the artists aren’t getting the money for their work, what’s the point of the Copyright Act or the RIAA and their lawsuits?*  With so many questions unanswered and uncertain, am I the only one that thinks this whole thing is a scam?  Even in criminal sentencing, there are guidelines for judges to follow.  You can’t just sentence a man to life in prison or death for stealing a loaf of bread.  There has to be some proportionality…the punishment has to correspond with the crime committed, right?**  No such logic seems to exist in the Copyright Act.  Aren’t we entitled to know what to expect for a crime we commit?

“The current damages range provides compensation for copyright owners because, inter aia, there exist situations in which actual damages are hard to quantify,” the Justice Department wrote.  (See http://www.wired.com/threatlevel/2010/01/obama-supports-filesharing-verdict/#ixzz0glneHPQW)

Wait a second!  Isn’t one of the basic rules of Remedies that the measure of monetary damages sought cannot be speculative?  Isn’t what’s going on here exactly that?  In other words, isn’t the fact that there are no guidelines for judges to follow leading to remedies or damages for the RIAA that are completely arbitrary and speculative?  Is the RIAA really suffering $80,000 in damages per song?  Are they able to prove damages of $80,000 per song?

“Furthermore, in establishing the range, Congress took into account the need to deter the millions of users of new media from infringing copyrights in an environment where many violators believe they will go unnoticed.” (See link above.)

With the average out-of-court settlement with RIAA being $3,500 (http://www.wired.com/threatlevel/2009/06/riaa-jury-slaps-2-million-fine-on-jammie-thomas/), number of infringements unknown, it makes you wonder why every infringer doesn’t settle with the RIAA.

Motions to set aside judgment have been filed in both the Tenenbaum and the Thomas-Rasset cases.  It will be interesting to see what the final ruling will be.  At this point, one thing seems certain – Whitney Harper should consider herself lucky for being charged only $750 a pop!

*I especially found it humorous that Bruce Springsteen’s name was added as a plaintiff to a suit filed by the ASCAP against a N.Y. bar.  Shouldn’t The Boss sue ASCAP?  But, I digress.

**I realize the Tenenbaum and Thomas-Rasset cases were jury trials, but that can’t justify the absurd amounts awarded in the Tenenbaum case, right? I can only hope that Set Aside motions will prevail, if I am to have any continued faith in the justice system.