Copyright Infringement and Restitution

Ladies and gentlemen it’s time again for and rant regarding the United States legal system. The Supreme Court just refused to hear a case involving copyright infringement, which may cost the defendant $675,000:

The U.S. Supreme Court has decided not to hear the case of Joel Tenenbaum, who illegally downloaded music during college and now faces a $675,000 fine.

Tenenbaum’s been battling the music industry since 2007, over charges that he downloaded 31 songs online. A federal jury slapped Tenenbaum with a $22,500-per-song verdict in 2009, but a year later, U.S. District Court Judge Nancy Gertner reduced the fine to $67,500, calling the original amount “unconstitutionally excessive.” Then, last November, an appeals court raised the verdict back to its original amount.

For the act of downloading 31 songs Tenebaum is being nailed with a $675,000 fine, or $22,500 per song. Copyright infringement in the United States has nothing to do with protecting copyright holders or restitution, it has everything to do with punishment. Tenebaum isn’t being made to make amends for his infraction, he’s being made an example of because he dared to challenge the state’s cronies. The state doesn’t like it when you challenge it or its cronies and will usually bring down the biggest hammer possible as a demonstration of its power.

Under a just system what would Tenebaum be made to pay? I would argue nothing because I don’t believe infinitely plentiful resources should be protected with violence but let’s assume copyright laws are somehow just, what should Tenebaum be made to pay? He should be made to pay restitution, that is the value he took. Assuming each song can be purchased for $0.99 on the iTunes store the grand total of Tenebaum’s fine should be $30.69 plus all fees paid by the copyright holder to recover the money. Instead Tenebaum is being forced to pay 21,994.134897 times the value he “stole.” How the hell is this just? It’s not, but it is legal:

(c) Statutory Damages. —

(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.

Looking at the law the fact that it was written to punish instead of deliver justice is obvious by the fact that the minimum fine for infringing a copyrighted work is $750.00. This was actually an increase from what the fine once was:

The Berne Convention Implementation Act of 1988 amended section 504(c) as follows: 1) in paragraph (1), by inserting “$500” in lieu of “$250” and by inserting “$20,000” in lieu of “$10,000” and 2) in paragraph (2), by inserting “$100,000” in lieu of “$50,000” and by inserting “$200” in lieu of “$100.” Pub. L. No. 100-568, 102 Stat. 2853, 2860. The Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 amended section 504(c), in paragraph (1), by substituting “$750” for “$500” and “$30,000” for “$20,000” and, in paragraph (2), by substituting “$150,000” for “$100,000.” Pub. L. No. 106-160, 113 Stat. 1774.

Apparently a $500.00 fine for “stealing” a $0.99 song wasn’t enough and thus it had to be increased to $750.00. I find this to be ridiculous. How the hell is this legal? Oh, I almost forgot, Disney and the Recording Industry Association of American (RIAA) are politically well-connected and therefore get special protection from the mob state.

Let’s consider what copyright infringement is for a minute. When you steal a car from somebody you have effectively taken away another person’s right to said car. Two people cannot be in possession of the car at the same time so in order for one person to use it another must go without. If you steal a $30,000 car I would argue that anywhere between $30,000 and $60,000 restitution, plus recovery fees, would be just compensation. The reason I would set an upper limit of $60,000 is because stealing the car really took away the owner’s right to the car and therefore a just punishment would be to have the thief lose his right to a car. Copyright is different since no actual theft takes place.

If I download a song via BitTorrent I’m not depriving another human being of that song. No theft has occurred because theft implies taking another’s right to something, copyright infringement merely implies you violated a state granted monopoly over an infinitely reproducible good. Of course many followers of Ayn Rand have argued that by downloading said song you’re taking away the copyright holder’s “right to a sale” but that implies that the downloader was actually planning to buy the song if it wasn’t available freely, an assumption that is often false. Either way you’re not denying anybody the copyrighted work when downloading a digital copy and thus should not be made to pay double the “damages” incurred.

Justice is supposed to imply righting a wrong, not enriching politically well-connected favorites of the state. Unfortunately our “justice” system is really a punishment system. It’s not about righting wrongs, it’s about making examples out of those who dare disobey the decrees of the state. Courts aren’t used primarily for mediation in disputes but for striking fear into the people.