Unless you’ve been living under a rock for the last decade, you’ve probably heard about the recording industry’s lawsuits against file sharers.  Now, I have no sympathy for people who willfully infringe copyright and yes, in my mind that includes downloading a song.  (At least in the US, it does.  Canada’s a different story.)  However, any sympathy I might have possibly had for the recording industry has long since been countered by their sleazy tactics — both to individuals accused of file sharing and to the artists that the recording industry claims to  be fighting to protect.

Yesterday, CNet posted a story about how the recording industry was told by a judge that “making available” isn’t grounds for copyright infringement.  This is a good thing since many P2P applications can share out portions of your hard drive with little to no notice.  Sure, technically minded folks would easily see what’s happening and change the settings, but Joe User isn’t going to know to do this and could wind up on the receiving end of a lawsuit without having any intention to illegally distribute copyrighted material.

CNet is celebrating this ruling as one more victory against the recording industry’s shotgun approach to lawsuits.  (Sue everyone, press for quick settlements, and seek to bankrupt the people who try to fight the lawsuits instead of settling.)  While I agree, I think that a bigger win would be getting Congress to update the fines involved for violating copyright.

The fines involved were set up by Congress back at a time when the major copyright infringement worry was commercial operations.  The kind that would, today, burn a hundred copies of a DVD and sell them on eBay for $1 each.  The fines were set at $750 to $150,000 per infringement.  It didn’t take into account what I call “casual infringement.”  I define casual infringement as copyright infringement without seeking a profit.  So selling DVD copies illegally is commercial infringement.  Downloading/sharing the latest hit song on a P2P network is casual infringement.

Now that we’ve set up a distinction between the two, we should have differing fines.  After all, why should a home user who shared out 12 MP3s face the same fines as someone who sold burned copies of that music in an attempt to illegally profit off of someone else’s work?  Should both the profit seeker and the home user face fines of $9,000 - $1.8 million?  I would keep commercial infringement fines at the current levels.

Casual infringement, however, I would reduce to be more in line with the actual “damages.”  If a user shares a song, the damage to the recording industry isn’t $1.8 million.  At most, it is the amount of money that sales of the song would have brought in had the downloaders bought the song instead.  We can’t
know just how many people downloaded from a particular sharer’s song.  Not unless we got access to all of the ISPs log files and even then how do you take into account partial file transfers such as on Bittorrent?  So an arbitrary amount should be set.  Let’s say 10 downloads will be assumed unless you have proof of a more exact number.  This will keep the fine at the end high enough to be a real penalty without turning it into a life ruining event.  Assuming 10 people downloaded the songs, the recording industry is out 10 times the price that those 10 people would have paid for the songs.  (There’s an argument about “lost sales” here and I actually agree with it, but let’s put that aside for the moment.)  At iTunes and other online shops, you can buy music for $0.99 per song.  This gives us a fine per song of $9.90.

In the case of a home user who shared out 12 MP3s, the fine would be $118.80.  Not a trivial amount to be sure, but also not bank-breaking.  Of course, a more realistic scenario has the recording industry suing someone who shared out 1,000 MP3s.  In this case, the user would be facing a $9,900 fine.  Much less than the couple hundred thousand dollar fine current copyright law would lead to.  Yet, the user is sure to feel a financial sting (despite they aren’t bankrupted) and will reconsider doing it again.

Of course, this proposal has little to no chance of becoming law.  If anything, Congress’ ear is bent towards the industry which is asking for higher fines.  (Something which was just pulled out of the still bad for consumers Pro-IP Act.)