Music to My Ears? - Setting a Precedent for Federal Copyright Infringement

In one of the largest amounts ever awarded in an illegal file sharing proceeding, an Illinois judge has ordered defendant Kywan Fisher to pay $1.5 million to adult entertainment company Flava Works for illegally copying and sharing 10 movies on the file-sharing website BitTorrent. This case highlights a trend in the courts' increasing disapprobation for copyright infringement, and hints at the potential for an increase in the severity of punishments imposed for such crimes. In a world in which illegally downloading a film or audio file is as easy as clicking a button, users may want to think twice before they bypass copyrights or skimp on paying full price for their digital entertainment.

When Napster gained mass popularity in 1999 for allowing users to share files effortlessly and seemingly without consequences, it soon boasted over 25 million users. However, in 2001, only two years after its inception, Napster lost a copyright infringement suit and was subsequently forced to revoke the free access to mp3s that it once afforded its members. Despite indications that the legal system and record companies were attuned to the growing trend of file sharing, other sites such as AudioGalaxy, Morpheus, Kazaa and Limewire sprung up in Napster’s wake, bolstering the trend and creating even more fans of file sharing.

Predictably, however, users of these copycat sites soon saw themselves faced with lawsuits citing illegal downloading and copyright infringement. While no case has been as monumental or landmark in its consequences as Fisher, courts have, since the inception of file-sharing websites, taken seriously and not looked favorably on the activity. In 2010, defendant Joel Tenenbaum, a doctoral student in physics at Boston University, was convicted and slapped with a fine of over $67,000 for downloading and distributing 30 copyrighted songs using file-sharing software. Also in 2010, the case against Jamie Thomas-Rasset went to trial, resulting in a damages award of $2,250 per song, totaling an amount of $675,000.

Not surprisingly, many lawsuits involving illegal file sharing settle out of court, with defendants seeking to avoid costly litigation and potentially astronomical damages amounts. However, the amount of damages awarded in these types of cases has met with some controversy, with some judges deeming excessive amounts “unconstitutional,” overly “oppressive,” and greater than needed to serve the government’s legitimate interests in protecting copyright owners and preventing infringement. In an effort to assuage this controversy, Congress passed the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 which mandated that damages should not exceed $150,000 per infringement if the violation was committed willfully. In the case at hand, the judge utilized the maximum amount allowed under this statute, charging Fisher $150,000 for each of the 10 videos he copied and illegally shared.

In the thirteen years since Napster gained mass popularity, the Recording Industry Association of America (RIAA) and the U.S. Copyright Group have become increasingly zealous in their monitoring and suing individuals who utilize file-sharing sites. After initiating over 20,000 lawsuits against sharers of indie movies and other forms of digital media, the RIAA and U.S. Copyright Group, coupled with the hefty fines that usually accompany conviction, seem to have had a deterrent effect on internet users contemplating downloading an illegally shared file. Together with user’s ability to purchase individual tracks instead of entire albums on iTunes (often for as low as $.99 per song) and a similar opportunity to find songs on Napster for $.70-$.80 each, it appears as if the rate of illegal file sharing should soon be on the decrease.

The precedent set by Judge John Lee last week in Illinois that violators of federal copyright law could potentially find themselves paying millions of dollars for their transgression is a strong one that speaks loudly. In comparison to the minimal amount that it costs to acquire a legally distributed video or audio recording, the prospect of being fined such an astronomical amount will likely have a huge effect on those contemplating taking the easy way out and utilizing illegally shared files.