Why I Hope You Get Sued For Copyright Infringement – A Response to the EFF on Maximum Statutory Damages

It’s Monday morning. Time to get pumped for the day. I click on my Pandora icon and a song comes on. I love Pandora One. It costs me about $50 a year, but I can stream music all day. At the gym, my living room, anywhere.

This song sounds good… Geometer by Slidecamp. Never heard of these guys before, but I can dig it. Let’s see if they’re on iTunes. Awesome. The entire album is available for exactly $7.92. That’s about two cups of coffee. I’ll bite.

BOOM – now the entire album is now on my iPad, my iPod, and my computer. I can listen to the song I want on repeat. Sweet. Gonna be a good day at the gym today.

For a second, I can’t help but think back to when I was a kid. There were two ways to listen to music – tapes and CDs. CDs sounded better, but you couldn’t take them into the gym because it skips. So you had to use tapes for any type of workout, and then listen to CDs in your house. After awhile, the CDs would get banged up, scratched, and useless. I think I bought Pearl Jam – Ten about ten times. To get a CD, you had to drive to Sam Goody and buy the entire album when all you wanted was one song. My bedroom had CDs spewed all over the place at any given time. And damn, I left my tape player on the bus again. Hopefully Ms. Gomez found it. It’s got my Green Day tape in there.

My how things have changed since then. Now any content I want is available at the click of a finger through Amazon, iTunes, or often directly from the producer’s website. It’s backed up in the cloud. MP3s don’t skip, and all the music goes to all your devices. And it gets better – movies, software, games, you name it, available in one click. No more braving the mall, no more Sam Goody, no more Electronics Boutique. Everything you want is available right here, right now, and for a fraction of what it used to cost. and if I break my computer I just buy a new one and all my music is back.

Welcome to the new millennium.

What always surprises me is how in this day and age, many people refuse to pay for their content, even though it’s so cheap.

“But I thought it was legal to download stuff off bittorrent!!!”

No you didn’t, you liar.

Let’s do a quick search for Slidecamp, the band that just randomly popped up in my Pandora today. Huh. The album is available on their website for $7, and also available on iTunes:

Screen Shot 2015-02-23 at 8.54.24 AM

I mean, if it’s available for purchase, clearly it’s okay for you to take for free on bittorrent, right…?

C’mon. You’re not that stupid. No one is.

But apparently piracy doesn’t even exist according to fightcopyrighttrolls and the Electronic Frontier Foundation. Surely no one would pirate an album available for an entire $7, right? It’s all just a giant scam or some kind of crazy conspiracy.

Lets test this theory and do a quick Google search for “slidecamp torrent.”

Errrr…. hmmm….

Screen Shot 2015-02-23 at 8.53.17 AM

Yup. People are stealing an album you can buy for $7. At the click of a finger on iTunes or directly off their website. From an obscure artist. The first thing that popped into my Pandora this morning when I decided to write this post.

That’s not very cool.

So, clearly the problem is that copyright laws are too harsh, right? Mitch Stoltz writes:

Copyright trolling is a widespread problem. Although one notorious outfit known as Prenda Law ceased its lawsuit campaign in January 2013 and was later sanctioned for fraud, copyright troll suits (identified in one study as copyright suits against multiple John Doe defendants) were nearly one-third of all the copyright suits filed in the U.S. in 2013.

Alright. So let me get this straight. A band takes the time to make a music album. They hire a studio to help produce it, use their time to come up with something clever, pay taxes, and have artwork designed. They put it on the internet on their website for $7, and also make it widely available on iTunes. Then other people steal it, and the problem is “copyright trolling?”

Does the EFF believe people should have to pay for their digital content, or that it’s okay to steal? Because there is a lot of stealing going on right now.

And yeah, I’ve heard the argument that it isn’t stealing. Apparently downloading (the correct term is really “distributing”) isn’t “stealing” because you’re not “taking” anything. You’re simply reproducing data.

I disagree.

What you’re doing is akin to theft of services. If the plumber comes to my house and fixes the faucet, I have to pay him for the service. If I don’t, that’s a crime under Pennsylvania law. Theft of services. Because the law recognizes that just because something isn’t a physical thing, it can be stolen.

Stoltz also writes:

The potential for six-figure recoveries with no proof of harm attracts those who would use the legal system itself as a money-making scheme.

Or, statutory damages gives those who generate content a means of recouping some of their loss. Shouldn’t people be paid for their work? How is being recouped for your loss a “money-making scheme?”

Finally, Stolz also writes:

For a typical Internet user, a threat of ruinous damages such as those awarded in the Tenenbaum and Thomas-Rasset cases is reason enough to settle a case for several thousand dollars, even when he or she did not infringe any copyrights.

Not quite. Tenenbaum and Thomas-Rasset chose to take their cases to trial because “it’s so unfair” and they believed they had every right to steal the albums they were accused of downloading. The recording companies offered to settle with both of them. Those two forced the content holders to trial because that’s what the internet wanted them to do, and then got burned for it.

Oops.

And let’s get the story straight. Tenenbaum admitted that he stole the music he was accused of stealing.Thomas-Rasset claimed her computer was hacked and the jury said she was a liar. Three times. Three different juries found she was liable for the infringements! At the end of the day, both Tenenbaum and Thomas-Rasset were guilty of what they were accused of doing. They weren’t just randomly targeted. And it was Tenenbaum and Thomas-Rasset who pushed the RIAA to trial – not the other way around.

Who are the wrongdoers in that case?

Yet, the EFF pretends like piracy doesn’t exist and people are just randomly getting sued. That simply isn’t the case. The reality is that piracy is a thing. A LOT of people are doing exactly what Tenenbaum and Thomas-Rasset were doing. The reason these cases settle out of court isn’t because people are getting randomly targeted – it’s because they broke the law and got caught.

Getting me to my point. If you do steal your content and feel the need to take it to trial, I hope you get sued and then hit for maximum statutory damages. Because you’re selfish and cheap, and your actions are causing copyright holders to have to use the court system in order to recoup their losses.

Oh, I know, you’ve read on the internet that you’re the victim, it’s a conspiracy, and everyone else is doing it so you should be allowed to. Even if it’s against the law and you know it’s wrong.

But c’mon. In this day and age, there is no excuse for stealing content. You should get penalized for breaking the law, just like you would stealing a DVD or CD from Target. You’re not the victim.

With piracy so rampant, why should Congress lower statutory damages? To make widespread stealing have even less ramifications?

I have a better solution. Stop stealing shit. Problem solved.

[Editor’s Note: I do mostly agree with Mitch on fair use, which is why this blog uses a creative commons license. I don’t put any money into the blog beyond owning the domain name and my time. It’s not meant to generate a profit. However, fair use is different than pilfering music, movies, software, and books. If I wrote a for-profit ebook about something, and people were distributing it on bittorrent, I would feel differently.]

4 Responses to Why I Hope You Get Sued For Copyright Infringement – A Response to the EFF on Maximum Statutory Damages

  1. Seems to me like you’re attacking a straw man here. If the EFF were arguing that the law should be changed so that people could not be sued for copyright infringement for downloaded songs, then you would have put together an excellent rebuttal. But that isn’t the EFF’s position.

    According to https://www.eff.org/wp/collateral-damages-why-congress-needs-fix-copyright-laws-civil-penalties, the EFF’s position is that the penalties for file sharing are too severe and lack consistency. It is perfectly plausible that the people stealing songs ARE “bad people” who DO “cause copyright holders to have to use the court system in order to recoup their losses” and yet still be unreasonable for a few of the people who happen to share a song 10 times to be liable for $1.5 million.

    Don’t get me wrong: I agree that artists need to get paid, and we have finally begun to see ways in which most of the work CAN be purchased online in ways that are legal and straightforward to use. But that so far as I know, the EFF doesn’t object to that position either.

    • Without statutory damages, it’s not worth all the work. The point of statutory damages is that actual damages are difficult to ascertain and prove at trial. That is why the Lanham Act provides statutory damages in trademark cases.

      The problem I have with Mitch’s article is that it’s not entirely accurate, and doesn’t even identify widespread piracy as part of the problem. He just glossed over the fact that Tenenbaum and Thomas-Russet were also stealing massive amounts of content. Then they forced the RIAA to trial. Not the other way around.

      It also bears noting that Tenenbaum and Thomas-Rasset were given multiple opportunities to settle their cases for a fraction of the judgment obtained against them.

      If we’re going to talk about reforming copyright laws, we also have to talk about how we are going to reduce piracy, too. Too many organizations and bloggers act like it doesn’t exist, or it’s not a problem.

  2. John says:

    Hmmm… comment didn’t seem to post, so here goes again…

    The underlying, unsupported assumption of your argument is that piracy is causing some economic harm. Very difficult to determine (e.g. http://freakonomics.com/2012/01/12/how-much-do-music-and-movie-piracy-really-hurt-the-u-s-economy/), and made even tougher in these days of Spotify, etc.

    It’s primarily porn and sub b-movie studios bringing these lawsuits. That should tell you something. Were there really any losses to be “recouped” from a Steven Seagal movie in 2014 (LOL)? You simply don’t know if people who downloaded it would have actually paid money for it. Producers of content of actual value have gotten over their initial moral panic (read William Patry’s excellent book on this) and realized that piracy is not the problem it seemed to be. Take HBO’s reaction to the rampant piracy of Game of Thrones (HBO exec: “it certainly didn’t negatively impact the DVD sales”). Your differing layman’s opinion on economic harm is drawn from… where exactly?

    While you pontificate about theft, you’re frustratingly obtuse about the extortionate aspect of these lawsuits. There’s a huge opening for abuse here. Anyone with a copyright can file mass lawsuits having nothing to do with recouping “losses” and then wait for the pincers of life-ruining potential penalties and the high cost of legal representation to do their work in bringing in the settlements. I understand your point of view (I pay for all my music and movies too), but you turn a blind eye to mine.

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