Tuesday, July 13, 2010

Don't Download Music Illegally! A (Weak) Warning.

I've apparently got a lot on my mind lately.  Maybe venting it all out is the way to get out of my funk.  I think my head can only hold so much, so letting some of it out, in the form of this blog, might just be the way to free up some space to deal with the minutia at work.

On July 9, Judge Nancy Gertner ruled that the $675,000 jury verdict against a Boston University doctoral student for illegally downloading 30 songs was excessive and violated the constitution, and she reduced the penalty to $67,500.  From $22,500 per song to $2,250 per song.  Her opinion (all 64 pages of it) is here.  I bolded the fact that he is a doctoral student, because I think that's important.  He isn't some fifteen year old goofball who is playing around on the Internet.  This is a guy who had a Bachelor's degree, a Master's degree, and was working on the utmost of the utmost, the Doctorate. 

As an attorney, I have a huge problem with a Judge overturning a jury's verdict simply because the Judge thinks it's too high.  It's happened to attorneys at my firm, and it is immensely frustrating.  The whole point of having a jury trial is to let the jury decide.  That failed to happen here, to the dismay of many trial attorneys across the country.  (I'll just speak on behalf of all of them.) 

The defendant in this case downloaded and distributed thousands of songs.  For purposes of simplicity in the lawsuit, the RIAA focused on only thirty of those songs.  The defendant admitted to copyright infringement; the only thing for the jury to decide (a jury of his peers, which is how the law goes) was damages.  How much should he pay the RIAA for his copyright infringement?  Now, in copyright law, you can choose either statutory damages (of which there is a range of dollar amount that you can receive per copyrighted work infringed) or actual damages.  The RIAA went for statutory damages, probably for simplicity's sake.  It's much harder to prove actual damages, because you have to consider whether or not the downloaders would have actually paid for the work.  Statutory damages can range from $750 to $150,000 per copyrighted work (i.e. a song), depending on whether or not the infringement is willful -- which in layman's terms means that you knew what you were doing was illegal, yet you did it anyway.

Now, keep in mind that the jury could have awarded as low as $750 per infringed song.  They also could have awarded $150,000 per song.  Yet they didn't do either of those things.  They awarded $22,500 per infringed song, which is near the low end of what is allowed.  The Court's opinion discusses how this defendant knew what he was doing, lied under oath, and tried to put the blame on other people before he finally copped to what he had done.  And the jury came to their conclusion.  Yet, the defendant has argued that it is unconstitutional, punitive, etc.  Here's the thing:  breaking the law is supposed to result in punishment.  He knew what he was doing (he started out on Napster, and when that was taken down due to copyright infringement issues, moved on to Kazaa and other file sharing sources), yet he continued to do it, with thousands of songs.  He's frankly very lucky that the RIAA focused only on 30 songs rather than the thousands that he downloaded.

But, of course, even with the reduced verdict he is still pleading poverty.  And I think the Judge did the wrong thing in this case, and focused too much on his financial situation.  It's like if you don't put a quarter in the parking meter, and then get a $25 ticket, but go into court and offer to pay the quarter.  The law doesn't work that way.  If you ignore it - willfully - you have to pay. 

I don't disagree that the Copyright Act, and the statutory damages provisions has some issues.  For example, it is for each infringing work.  I had a client who had one copyrighted item that was distributed all over the Internet by a party.  However, because it was technically one infringing work under the law, under statutory damages she was limited to $750 to $150,000 in damages.  That's it, because it was one work.  And this person destroyed her market.  So, there are some problems there.  But this is a case where there were 30 works, arguably thousands, and the jury actually dealt him a verdict on the low side.  They could've charged him with $150,000 per song.   

As an attorney who has dealt with copyright issues in the past, I don't begrudge the right of the RIAA to go after people (even students and kids) who distribute music.  I tell everyone I know, just get iTunes or download your songs off Amazon or Walmart or some legal source.  For God's sakes, it's like $1 a song.  Doesn't the musician who recorded the song deserve something from you?  Do you want your musicians to keep making music?  Then pay them something.  Let this guy be a lesson.  The RIAA is clearly trying to make people realize that copyright infringement is theft - which it is - and if you do it, you will pay.  Obviously the Judge disagreed on what was "fair" to pay.  I respectfully dissent.          

1 comment:

  1. You mentioned something about the BS that's astrology a while back. I couldn't find your post but I wrote something along the same lines over a year ago: http://mymilkglassheart.com/2008/12/30/stars-in-your-eyes/

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