It seemed that the $2,250 per infringing song has become the brand new standard in the US with regards to file-sharing. After the Jammie Thomas case and Joel Tenenbaum case pointed to this standard, it seemed as though the mystery of what the fines are has all but been decided. Apparently, $2,250 per infringement doesn’t sit well with the Obama administration and now they are appealing the case to re-instate the original astronomical fine of $1.5 million.
Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes
Late last month, we noted that the Supreme court has refused to hear the appeal of Joel Tenenbaum. The development seemed to all but cement the standard of a $2,250 fine per infringed work. While we haven’t looked in to what the next steps are for that case, a new development in the Jammie Thomas case shows that deciding on how much to fine an alleged file-sharer is far from over.
Wired’s Threat Level has extensive coverage of the new development:
The Obama administration is set to urge a federal appeals court to reinstate a $1.5 million music filing-sharing verdict a jury levied against a Minnesota woman for sharing two dozen songs on Kazaa.
At issue is a Minnesota federal judge’s decision last year lowering the verdict to $54,000, ruling that the jury’s award “for stealing 24 songs for personal use is appalling.”
The case tests the constitutionality of the Copyright Act, which allows penalties of as much as $150,000 per infringement. It also asks whether federal judges have the power to reduce copyright damage awards rendered by juries.
When I wrote about the fine of $2,250 per infringing track, I commented on how insane that is given that you could buy a large portion of an entire music studio with $2,250 in this day and age (prices of what I looked at included in link) Knowing that, I have a very hard time trying to think of how you could possibly justify a fine that high – especially considering that a single track is traditionally sold for 99 cent online.
Now the government is demanding that the fine should be higher? Besides saying that the US uses statutory damages to determine the fines, how exactly can you justify a fine higher than $2,250 per track anyway? We know that the one download means one lost sale theory is completely debunked for measuring damages and science has told us that the damages due to file-sharing are anywhere between minimal to non-existent. Furthermore, the argument that this is a deterrence issue is also false because the verdicts have not completely deterred file-sharing. Even if it did deter file-sharing, the only deterrence that could possibly occur is that file-sharers won’t use one particular network and opt to use one that is more “secure”, thus really failing to deter anyone.
What’s more is the fact that many would agree that litigating file-sharers is very antiquated. There’s already numerous moves by rightsholders to simply shift the strategy away from litigating file-sharers.
In any case, given the amount of precedent there already is, I think the government has an uphill battle here. There’s already been multiple judges who said that $2,250 per infringing song is the standard in the US. If the Obama administration manages to re-instate the fine, I would seriously wonder what’s the point of the eighth amendment in the constitution. If you can fine a teenager for millions and millions for something as petty as uploading a copyrighted song onto a network for free and it not be a constitutional issue, then what is considered an excessive fine anyway?
Drew Wilson on Twitter: @icecube85 and Google+.
