A professor specializing in copyright law says that the justice system devised for prosecuting illegal file-sharers is out of control. She argues that it "has evolved in a manner that results in too many arbitrary, inconsistent, unprincipled, and grossly excessive awards and that reform is needed."
The comments came in a paper by Professor Pam Samuelson of the University of California, Berkeley, along with co-writer Tara Wheatland. (Source: publicknowledge.org)
The authors say the biggest problem with the system is that the range of damages which can be awarded for copyright infringement cases is too great, meaning penalties can be wildly inconsistent. They also complain that the minimum level of damages which can be awarded is too high.
The paper deals with statutory damages, which are a preset level of damages awarded in cases where it's difficult to prove the actual financial implications of an offense. In copyright cases, it's usually difficult to prove the exact amount that piracy has cost a company, so statutory damages are used.
$750 Minimum Charge
While some countries use a system where statutory damages for copyright are simply a multiple of the retail price of the product that has been pirated, the United States uses a fixed-range system. Courts are usually allowed to pick damages between $750 and $30,000 for each infringement, though this can rise to $150,000 in cases of 'willful infringement'. (Source: arstechnica.com)
This wide range gives courts scope to use damages punitively: that is, to set damages so high that they act as punishment rather than just compensation.
Minnesota Woman Sued for $222,000
Samuelson and Wheatland note the case of Jammie Thomas, a Minnesota woman sued by Capitol Records for file-sharing. Charged over sharing 24 songs (though it's reported she shared 1,702 in total), the jury was forced to award a minimum of $18,000. They eventually opted for an award of $222,000 and it's claimed some jury members felt an astonishing $3.6 million in damages was fair. The case is currently awaiting a retrial on a legal technicality.
The paper argues that the actual damages suffered by Capitol Records were somewhere in the region of just $50. The writers say the system must be reformed so that the statutory damages better reflect the actual damages caused, and that courts should be allowed to go below the standard minimum level in cases where it would produce an award that seems clearly out of proportion.