Judge: Illegal Downloads Don’t Equate To Lost Sales
;)
US District Judge James P. Jones has ruled that copyright holders cannot equate each illegal download with a lost sale. Just because somebody downloaded your song, doesn’t mean that they would have purchased it otherwise. Practically what that means is that you cannot seek restitution based on the amount that hypothetically would have been gained if the person would have purchased your song through legal channels.
Via ArsTechnica:
Record companies cannot collect restitution for every time a song has been illegally downloaded, a US District judge has decided. Judge James P. Jones gave his opinion on United States of America v. Dove, a criminal copyright case, ruling that each illegal download does not necessarily equate to a lost sale, and that the companies affected by P2P piracy cannot make their restitution claims based on this assumption.
I’m not sure how much I like this ruling. While I can see the point that the judge is making, the essential argument on the part of the defendant is, “Well, I wouldn’t have downloaded the song if I couldn’t steal it.” That’s the equivalent of me stealing a Ferrari from the local dealer and my defense being, “Well, sir, I definitely wouldn’t ever have bought that car, so I stole it. Therefore, I can’t be forced to pay the dealer for how much the car is worth.” Seriously?!
“Those who download movies and music for free would not necessarily purchase those movies and music at the full purchase price,” Jones wrote. “[A]lthough it is true that someone who copies a digital version of a sound recording has little incentive to purchase the recording through legitimate means, it does not necessarily follow that the downloader would have made a legitimate purchase if the recording had not been available for free.”
So now it’s the copyright holder’s fault for not making their content avialable for free? Take that back to my Ferrari analogy, “Well, sir, I wouldn’t have stolen the car if they would have just given me the pink slip for free.” That makes no sense.
I should point out that this does not absolve defendants of criminal charges, but severely limits the restitution that copyright hodlers can seek. Civil suits can ask for monetary damages based on some other scale, but it appears that copyright holders will not be able to calculate that value based on the price of their content. How then should they determine what they’re owed? I don’t want to see people steal songs, but I don’t want to see copyright holders abuse this ruling the other way either, and start collecting thousands of dollars per song shared instead of the actual value they would have charged for the song. Make sense?
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2 Responses to “Judge: Illegal Downloads Don’t Equate To Lost Sales”
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It will take some time to see the effect of this decision on real damage suits. Of more interest to me is the growing sentiment that groups of downloaders should be charged as co-conspirators in restraint-of-trade actions rather than as individual offenders. Once you bring conspiracy into the mix, the criminal aspects far outweigh the commercial damages issues.
Yes. The damages per pirated track include damages up to $150,000, and a minimum of $750 for individual file sharers. That does not take into account the conspiracy play.