To Safeguard the Public Domain (and the Public Interest), Fix Copyright’s Crazy Penalties | Electronic Frontier Foundation

"What if a single parking ticket carried a fine of up to a year's salary? What if there were no way to know consistently how much the fine would be before you got it? And what if any one of hundreds of private citizens could decide to write you a ticket? What would happen? People would start avoiding public parking, and stay home more often. Business would decline. The number of false or unfair tickets would rise. Everyone would lose confidence in the system—and in the law—as parking became a huge gamble. Something very close to this scenario is a reality in copyright law. Copyright holders who sue for infringement can ask for "statutory damages" and, if they win, let a jury decide how big of a penalty the defendant will have to pay—anywhere from $200 to $150,000 per copyrighted work. That's a big problem for Internet users, and everyone else who wants to use creative works in lawful but non-traditional ways. Authors of remix video and fan fiction, bloggers, coders, entrepreneurs and others who create, inform, and empower on the fuzzy edges of copyright law must gamble every day. They risk unpredictable, potentially devastating penalties if a court disagrees with their well-intentioned efforts. People from across the spectrum of opinion on copyright—including many who generally support more restrictive copyright law—agree that copyright damages are broken and need fixing. In today’s House Judiciary Committee hearing on the scope of copyright, Professors David Nimmer and Glynn Lunney agreed on almost nothing—but both agreed that copyright’s penalty regime makes no sense today ... So, not surprisingly, penalties in actual cases are hugely unpredictable. Sometimes judges and juries try to set a penalty at approximately the value of the infringing goods, or the loss suffered by the plaintiff. When the defendant is a repeat infringer or behaved egregiously, some courts award a small multiple of actual harm, such as double or triple damages, much like in other areas of the law.  Other times, judges and juries set massive penalties with no relationship to either the actual harm caused or the degree of moral condemnation that the defendant deserves. A website owner who copied two copyrighted poems, earning no profit and causing no more than minuscule economic harm, was ordered to pay $300,000.1 More famously, single mother Jammie Thomas-Rasset was ordered to pay $222,000 for sharing 24 songs online, even though the trial judge believed that the record labels' actual harm was about $50.2.   Without guidelines, the penalties awarded change radically from case to case. One music industry company that sued three different defendants in separate suits for the same type of infringement won $10,000 per song in one case, $30,000 in another, and $50,000 in a third.3  This uncertainty, and the possibility of ridiculously high penalties, is toxic to creativity and innovation. High and unpredictable copyright damages are why many filmmakers struggle to obtain the liability insurance their financial backers require. They're part of why entrepreneurs with new products for using and interacting with creative work don't get funded. And they're a big reason why innovative companies like Aereo, Dish, Pandora, and software developers large and small must spend so much time and money on copyright lawyers instead of artists and engineers ..."