DISQUS

eee_eff · 4 years ago

You had addressed the First of the proposed reforms, however you neglected to comment on the second, which is the elimination of statutory damages, which is an idea whose time has come.

Recall that statutory damages were conceived long before P2P; both the types of defendants and the nature of the crimes were completely different in the era in which statutory damages were conceived.

It is, in my opinion, a manifest evil to allow corporations to sue individuals for hundreds of thousands of dollars for downloading a single song. The crime should be more like a traffic ticket, with maybe a fine of $40.00 or so. This would be a reasonable amount that would roughly correspond to the actual damages that the copyright owner incurred.

It would also be appropriate to re-align the amount at issue in recognizance of the significant loss of due process to the defendants that has occurred in the prosecution of illegal file downloading. An interesting parallelism exists here between illegal file downloading and traffic laws: No one expects completely perfect due process in the case of a traffic ticket for these reasons:

1. The traffic laws must be enforced for the proper and safe functioning of public infrastructure.

2. The fines are relatively modest

On the whole, then, people can accept less then perfect due process when a critical public infrastructure needs efficient governance in order to continue to function. The P2P is just such a public network, albeit an incipient one.

The record labels will at first resist this, but if they really stop to think about it, there's a lot for them in this. My concern would be however that we need a balance of the due process/damages and we shouldn't sacrifice too much in the way of due process to get efficient market clearing motivations to operate. (Not enough space in this forum to elaborate on this, but it could be an interesting topic for further study)

Everyone ultimately benefits when all stakeholders perceive the rules to fair. Right now, the rules are tilted dramatically for the large corporations, and against the users of P2P networks.

Braden · 4 years ago

Thanks for your comment, enigma_foundry. Congress utilizes statutory damages in legislation when it thinks actual damages would be too hard to calculate. Statutory damages also serve as a deterrent effect (higher damages apply for "willful" copyright infringement). Is all this necessary in copyright today?

In the case of digital copyright, statutory damages can admittedly become very high, very fast. Remember mp3.com? But with the advent of legal downloading, and with all the economic studies conducted to place a value on the amount of $ the recording industry has lost (or not last, depending on the study), perhaps actual damages or lost profits would be easy to calculate, negating the need for statutory damages.

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