That’s Just Silly

A few posts back I mentioned that sometimes I’ll read a news story and wonder if someone is getting an early start on April Fool’s Day – and if it’s the author of the piece or the person they interviewed for the story. Unfortunately, all too often there are multiple witnesses to the facts of the story, plus documentary evidence, Internet sites, and court transcripts that all indicate the story is real and not a hoax; just absurd by its very nature. Such was the case with the most recent story about the recording industry trying to recover funds from a file-sharing site, in this case LimeWire. Even granted that the court action was brought by thirteen record companies acting in concert under their industry advocates – and even granted that LimeWire was responsible for thousands of users making millions of downloads, $75 trillion US seems a bit excessive…

You can read the Law.com coverage about the case if you want to, but the background of the story is that the recording industry was demanding the highest possible damages for every possible download of every possible file on the site – which works out to $75 trillion according to their math, or more than five times the US national debt. Or, if you like, it’s somewhere between $240,000 and $250,000 for every man, woman and child in the United States (depending on just how many undocumented residents we’ve actually got). It’s clearly a ridiculous amount of money to demand from a legal standpoint, not just because there is no reason to believe that everyone who ever went to LimeWire downloaded every file that was ever available at LimeWire, or even because that much money may not even exist, but because that’s not the way lawsuits actually work outside of the funny pages…

Keeping in mind that you should not get your legal advice from bloggers without law degrees, anyone who has spent even one class period in a civil law class knows that you can’t just make up some amount of money that may not really exist and demand that anyone who you don’t like pay it. Damages in a civil case come in two types: compensatory and punitive; compensatory are supposed to make good whatever damage the other party has done to you, and punitive are supposed to punish the other party so they don’t do it again. This is why you will often hear the plaintiff (the party that brings the suit) going on and on about how horrible the action was, how much they have suffered as a result, and how important it is to be sure that the defendant (the party they are accusing of wrongdoing) never does this again. However, in this case, the damages requested are completely absurd for both purposes…

There is simply no way that a bunch of file-sharing music fans on the Internet would ever have purchased $75 trillion through regular channels if LimeWire wasn’t available. In fact, if you know the kind of people who share files online, you already know that most of them wouldn’t have spent ANY money to purchase the majority of those files. The linked article mentions that the judge is going to limit the damages to one fine per file, which seems a bit more realistic (you figure that at least one user downloaded every file in the LimeWire catalog at least once), but I’d have to say that even that is probably more than the recording industry would have made on those properties if they were trying to sell the same downloads. As to the punitive use of damages, it’s highly doubtful that LimeWire has $75 trillion; since file-sharing sites BY DEFINITION don’t charge anything, the site probably only makes whatever they can get from banner advertising – which isn’t much. In fact, it’s unlikely that LimeWire’s total assets are even $75 thousand, let alone adding nine more zeroes onto the end…

What this action has done is make the recording industry look bad – yet again. The damages they are demanding are clearly enough to destroy LimeWire millions of times over, which should be enough even to prevent the company from declaring bankruptcy and then re-forming as a conventional firm the way Napster did – even assuming that they have the corporate protections in place to do that in the first place. Now, no one is saying that you shouldn’t sue to recover money people have taken from you by using your copyrighted material without permission, but attempting to take everything they will ever have and then destroying their company into the bargain just looks mean. It would be an ill-considered action even for an industry that doesn’t already have massive public relations issues; for the recording industry, it’s only a matter of time before they eradicate whatever fragment of relevance they have left and are pitched out onto the ash-heap of history…

All of which makes me say that this case was kind of a silly idea…