$ 675,000 for Downloading 30 Songs Illegally

The First Circuit upheld a $ 675,000 award against an individual who illegally downloaded thirty songs.  As you may know, the minimum amount of statutory damages allowed by the Copyright is $750 per infringement. The maximum is $30,000 per infringement. However, in the case of "willful" infringement, the Copyright Act provides for statutory damages "of not more than $ 150,000 per infringement. 
 

The lower court in the Sony BMG v. Tenenbaum case, awarded plaintiff $ 22,500 per infringement.  Mr. Tenenbaum appealed claiming that such an award was excessive, and therefore, violated his due process rights.  Arguing that the First Circuit should apply a punitive damages analysis to determine the propriety of the award, Tenenbaum sought a determination that the award was excessive.  The First Circuit declined to review the award under a punitive damages analysis.  Instead, it gave deference to the statutory damages set forth in the Copyright Act.  Using this analysis, the First Circuit, in order to find the award violated Tenenbaum's due process rights would have to find that the award was "so severe and oppressive as to be wholly [disproportionate] to the offense and obviously unreasonable."  The punitive damage analysis would have most likely yielded a favorable result for Tenenbaum. 

 

This begs the question, how is it that the award of $ 22,5000 per downloaded song is reasonable or not disproportionate to the offense?   According to the First Circuit, it thought that the purpose of the statutory damages was to discourage "wrongful conduct" and provide compensation for injury.  Undoubtedly, plaintiff will also seek to recover its attorneys' fees from Mr. Tenenbaum.  Thus, Mr. Tenenbaum's downloading of a couple of album's worth of music will probably cost him a pretty penny.   

Of course, the courts do not ever consider any mitigating factors.  For example, what if after downloading those 30 songs, Mr. Tenenbaum purchased 100 more from the same or similar artists which he would not have purchased had he not liked the thirty songs so much in the first place.  Or, whether Mr. Tenenbaum may have purchased the songs after downloading them?  (Most likely he did not, but what if?). 

While I am all for protection of one's intellectual property, including copyrights, it seems to me that the statutory damages provision of the Copyright Act leads to misuse and abuse.  This is especially true since a copyright registration is probably the easiest of the three (patents, trademarks, copyrights) to obtain.  Seems to me that the better approach to determining the statutory damage amount would be to run it through a punitive damage analysis.  That way, the courts may have greater flexibility in taking into account whether the infringer is a "career" or "professional" infringer or just someone like Mr. Tenenbaum.  

Until then, if you are downloading songs or other copyrighted material, do so from iTunes or Google Play (or other similar application, store, site) and only after paying for it.