In the almost five years that have passed since the original verdict, the case has been appealed and re- appealed, and is still ongoing in January 2012. The damages have been going up and down in the various trials, from a whopping $1,920,000 in a re-trial in 2009, to $54,000 after a decision by a judge in 2011. The record company has declared that is not satisfied with this decision, and that it will be seeking to have the damages raised again.
But whether it’s $2,000,000 or “merely” $50,000, this is clearly disproportionate for file sharing 24 songs. No matter how many songs you or your family members may have listened to without paying, you should not even have to think about the risk that you might be forced to sell your house or your car, or continue paying damages to record company for the rest of your life. That simply isn’t proportionate.
In this case, it is not the money that the record company is after. They know Ms. Thomas doesn’t have any, and yet they are said to have spent $3,000,000 on litigating the case so far. They want to set an example, to scare the general public into submission.
In the offline world, there is a long established principle of proportionality, which is one of the cornerstones of a just legal system. But the big rights holders have managed to persuade the legal system that this principle should not be applied to petty crimes and misdemeanors occurring online.
When it comes to copyright enforcement on the Internet, justice is blind – with rage. And unfortunately, this applies not only to US courts, but to European ones as well.
In Sweden in 2011, courts started handing out prison sentences to ordinary file sharers that had been unlucky enough to get caught by the rights holders’ organizations. So far, it has only been a handful of cases, and in each of them the victim of the prosecution got the sentence suspended (since, being ordinary citizens picked more or less at random, none of them had a previous criminal record). But even so, from a legal point of view, the courts found that they had committed a crime that was grave enough to merit prison.
Is this really what we want in our society? There was a time when you could be sure that the headline “Sentenced to prison for listening to music illegally” would refer to a country like Cuba, the Soviet Union, or Chile under general Pinochet. Totalitarian regimes have always had the habit of putting people in prison for listening to music illegally, in order to protect the state against unwanted political influences.
But now we are seeing that headline being used to report court cases in what ought to be respectable EU member states, like Sweden. The purpose this time is not to protect the state against dangerous political thoughts, but to protect the entertainment industry against having to adapt to technological progress. But the sentences are the same: Prison for illegal music listening. Do we really think that this is proportionate, and represents the right way forward?
In 2008, a Danish man was sentenced to pay 160,000 Danish kroner (21,000 euro) for allegedly having shared 13,000 songs on a Direct Connect network in 2005. The verdict was later reduced by the Danish Supreme court in 2011, after 6 years of legal battles, but the first two courts that handled the case both thought that 20,000 euro was a perfectly reasonable punishment for an ordinary file sharer that happened to get picked as a scapegoat by the entertainment industry lawyers.
To put this in perspective, 13,000 songs is not very much by today’s standards. 30 years ago, you would have needed a whole room full of LP records to have 13,000 songs, but today they will easily fit on a 64 GB USB stick in your pocket, which can be copied in minutes. Technology has changed the way that people think about and handle recorded music, especially for the younger generation. It is probably hard to find a Danish teenager who has not downloaded or shared a lot more than that.
Does this make it reasonable that all Danish families with teenagers should live under the threat of having to fork up 20,000 euro if an entertainment industry lawyer comes knocking at the door? Is listening to pop music illegally really as bad as stealing a 20,000 euro car and destroying it?
Today, courts in Europe haves a lot of discretion when deciding how much convicted file sharers have to pay in damages. This is why the Supreme Court could reduce the damages in the Danish case. But this may change if the European Parliament gives its consent to ratifying the controversial Anti-Counterfeiting Trade Agreement, ACTA.
Although the name of this treaty suggests that ACTA would be about commercial goods counterfeiting (which everybody, even the Pirate Party, agrees is a bad thing that should continue to be illegal), the implications of ACTA are much wider than that. In particular, ACTA aims to sharpen the enforcement of copyright on the Internet, in an attempt at combating file sharing.
According to ACTA, the damages for illegal file sharing will be higher, in some cases absurdly high.
In Article 9.1 of the ACTA agreement, it says that
… In determining the amount of damages for infringement of intellectual property rights, a [signing country’s] judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.
(emphasis added)
In other words: To calculate the damages for having a disk full of illegally copied songs, you would multiply the number of songs with the suggested retail price for a song. But although this may look pretty harmless at first glance, it will lead to very drastic consequences in practice.
A two-terabyte disk can hold roughly half a million songs. If you calculate that at the market price of 1 euro per song, the damages for having a 2 TB disk full of music would be half a million euro.
Would that be proportionate or not? Remember that this is not an extreme example, it is something that lots of teenagers do. Would it really be proportionate that the family would have to sell their house and all their possessions if they were found out?
Under current European laws, damages are (at least in principle) limited to actual losses that the party that wins can show that he has actually suffered. They have to be proportional. Not even the lawyers for a film or record company would be able to convince a European court that they have actually lost half a million euro in non- purchases from a teenager who has never seen that kind of money in his life.
But according to ACTA, the film or record companies would no longer have to prove that they have actually lost the money. All they need to do is to multiply the number of songs with the price for one song to get the amount of damages measured by the suggested retail price.
A half million euro claim against a teenager with a 2 TB disk would be considered disproportionate and absurd by any European court today. With ACTA, awarding those damages becomes mandatory.
The copyright lobby knows this, or course. They have been deeply involved in the ACTA negotiations since day one. It is only the citizens and the elected members of parliaments that have been kept in the dark for as long as possible. The plan was to get ACTA signed, sealed, and delivered before too many elected politicians in parliaments knew the real consequences of ACTA as well.
We must now make sure that that plan does not work.
Due Process
In Sweden, with nine million inhabitants, about ten people get struck by lightning every year, and one or two of them die. This is of course very tragic, but this one-in-a-million risk is not enough to make people think that they themselves will get struck by lightning, and it is not enough to make them modify their behavior in any significant way. You will not see anybody wearing a protective hat with a lightning conductor if you walk down the streets of Stockholm.
Before 2011, the risk of getting convicted of illegal file sharing was about as high as the risk of getting killed by lightning. It happened at most to one or two people per year, so it was not something that anybody would seriously expect to happen to themselves.
