Are you willing to pay $22,500 to download a song? Not likely, but apparently that’s the going rate for music piracy.
And that’s what Joel Tenenbaum, convicted in 2009 of illegally downloading and distributing 30 songs using file-sharing services, will pay. His total bill? $675,000.
“The current Copyright Act sets a range of $750 to $30,000 for each act of non-willful infringement and a range of $750 to $150,000 for willful infringement. It is up to the discretion of the judge or jury to decide the appropriate amount of the award under the facts of a particular case… Conceivably, Mr. Tenenbaum could have been held liable for up to $150,000 for each of the 30 songs he downloaded illegally.”
If the Recording Industry Association of America (RIAA) had its way, Tenenbaum would have paid even more. A lot more: the RIAA’s original lawsuit sought $4.5 million in damages. From David Baarlaer (Lawyers.com), after an appeals court reinstated the $675,000 award against Tenenbaum last year:
“The music industry takes piracy seriously. It may have already paid over $3 million in legal fees in the [Jammie] Thomas-Rasset case [also convicted of music piracy] and may only get a judgment against her for $54,000. Both numbers are drops in the bucket, though, considering the RIAA’s estimate that the music industry loses billions of dollars each year to piracy. Not to mention the loss of tens of thousands of jobs in the industry.
It’s no surprise, then, that Jennifer Pariser, Senior Vice President of Litigation for the RIAA, is ‘very pleased’ with the ruling against Tenenbaum, adding that the ‘court’s summary of the facts makes plain why statutory damages are necessary and why the appropriate measure of damages should be left to the jury’s discretion.’”
Unfortunately for Tenenbaum, District Court Judge Rya Zobel appears to agree. Earlier this month, Judge Zobel upheld the constitutionality of the original award and denied Tenenbaum’s request to lower the amount of damages. From Foley Hoag’s Michael Boudett:
“Judge Zobel … implied strongly that Tenenbaum was actually somewhat fortunate, in that the award was at the low end of the available statutory damages applicable to willful infringers, and even ‘below the statutory maximum for non-willful infringement.’ Finding that Tenenbaum had infringed on a large scale after repeated notice, had destroyed evidence of his activities, and had admittedly lied in discovery, she concluded that there was ‘ample evidence of willfulness and the need for deterrence based on Tenenbaum’s blatant contempt of warnings and apparent disregard for the consequences of his actions.’”
There’s an important lesson here, one that digital pirates would do well to heed. Again, Haight and Weller:
“… when in doubt, assume that music, a song, a movie, a book, lyrics, photographs, artwork, and other types of tangible works are still protected by a valid and subsisting copyright, whether registered or not, since the life of a copyright is very long. It is safer to assume you need permission to use it, and find a legal way to do that. Thus, forewarned is forearmed.”
Read the updates:
• Are You Willing to Pay $22,500 to Download A Song? - Mintz Levin
• Update: $675,000 Jury Verdict Against Music File-Sharer Upheld - Foley Hoag LLP
• Music Lover on the Hook to the Tune of $675K - Lawyers.com
• Advanced Copyright Issues on the Internet - July 2012 - Fenwick & West LLP
• Can You Go to Jail for Downloading Movies? - Lawyers.com
• Music Law Weekly Case Update For Music Industry Executives - September 21, 2011 - Loeb & Loeb LLP
• In Re: Sony BMG Music Entertainment, et al.,: Petitioners’ Reply Brief - Electronic Frontier Foundation
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