Public Knowledge does not like the $222,000 verdict awarded by the jury in the Thomas file-sharing case. Mr. Siy of Public Knowledge claims that the verdict “shows the lunacy of the current statutory damages limits” because the award cannot be reasonably explained by a desire to deter similar wrongdoing.

That claim is easily refuted. A jury could readily conclude that deterrence required a damage award that exceeded the approximately $24 a downloader would save by downloading 24 songs illegally times the denominator in the odds of getting caught in the act. According to data from the NDP Group, about 8,000,000 U.S. households used some sort of file-sharing program in 2007. RIAA sues infringing users of those programs in waves of about 1,000 cases, so the odds of being caught at a given moment would be about 1 in 8,000. Consequently, a jury could readily conclude that deterrence necessitates a damage award greater than $24 times 8,000—a damage award in excess of $192,000. The admittedly proper goal of deterring similar wrongdoing can thus explain the Thomas verdict. No more is required to affirm a jury verdict on appeal.

Moreover, Public Knowledge forgets: Lawsuits like Thomas reflect its own notions of sound public policy in action. While the trial focused on liability for sharing 24 songs, the defendant was sued because she allegedly shared over 1,700 songs.

In Grokster, Public Knowledge argued that distributors of file-sharing programs should not be liable for the infringing acts of their users—even if their programs were actually used for infringement 97% of the time, and even if those distributors had induced (i.e., encouraged or duped), people using their programs to infringe copyrights. But Public Knowledge had no such sympathy for the single mothers or children using these dangerous toys for their intended (infringing) purpose:

Public Knowledge (testifying before Congress): “An industry-initiated lawsuit against a large-scale infringer could also have the benefit of serving as a deterrent to other bad actors. As we have seen in other contexts, specifically targeted lawsuits and other legal action can have a deterrent effect, and also educate the public as to what is legal.”

So, as the Digital Freedom-To-Get-You-Sued Campaign rolls out across campuses, students who have paid big settlements because they made eminently foreseeable infringing uses of file-sharing programs should stop by—and thank the people who advocated suing students as a means of enforcing copyrights on the Internet.

posted by Thomas Sydnor @ 9:56 AM | Enforcement & Remedies, Free Culture Movement, Internet: P2P, Search Engines...

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