Two recent decisions should cause anyone who plans to download music from the Internet to be extremely careful and to think twice before doing so.
By way of background, the Copyright Act gives the copyright owner the option of recovering either actual damages or what are known as “statutory damages” when its copyright has been infringed. Statutory damages do not have to have any relationship to the actual damages suffered, and are more in the nature of a penalty than traditional damages. The Copyright Act provides for statutory damages of between $750 and $30,000 for each act of non-willful infringement and statutory damages of between $750 and $150,000 for each act of willful infringement.
In Sony BMG Music Entertainment v. Tenenbaum, the defendant used well-known file-sharing services like Napster, Morpheus, Kazaa and LimeWire to download and distribute 30 separate songs. After a 5-day trial, the jury found the defendant liable for 30 separate acts of copyright infringement (one for each song) and assessed statutory damages of $22,500 for each song. In total, the defendant was found liable for statutory damages of $675,000, which damage award was upheld on appeal.
In another case, several music companies sued an individual who downloaded 1,700 songs using the Kazaa file-sharing service. The defendant was found liable for copyright infringement and ordered to pay $220,000 in statutory damages.
We know from our experience and work in the music and film industries that the music companies (and many film companies) employ sophisticated software and investigative techniques to identify individuals who they believe are illegally downloading their copyrighted works, and they will not hesitate to sue the offenders once identified. So one must ask – is it really worth risking a penalty of $22,500 (or possibly even more) just to download a song?
Our best advice is the old adage – what seems too good to be true probably is. Always assume that a song, video or other work available for download is protected by copyright and that you need permission (and usually will have to pay some kind of fee) to download it. Always use a recognized and legal service (like iTunes and the like) to download your music and videos and you won’t run into the same problems as the defendants in the cases discussed above.