With the latest jury in the never-ending series of trials for Jammie Thomas-Rasset, awarding $1.5 million, or $62,500 per song
, many were wondering how the jury comes up with such numbers that seem so ridiculously out of line with any actual damages. The real problem isn't the jury, but the law. Copyright law has ridiculous statutory damages, which by definition
have no basis in actual damages. This leads to purposely nonsensical results like being fined $1.5 million for sharing 24 songs you liked. So why is the jury still picking those numbers? Well, it's all about the framing. If you read the jury instructions to the latest jury
, you can see why the jury more or less picked the number it did. Just take this key section:
You are hereby instructed that a jury in a previous trial has already determined that the defendant's infringement of plaintiffs' copyrights was willful. In this case, there is no issue as to the defendant's liability for willful copyright infringement. As a result, your sole responsibility is to determine the amount of damages to be awarded to the plaintiffs for the defendant's willful infringement of the plaintiffs' copyrights.
In this case, each plaintiff has elected to recover "statutory damages" instead of actual damages and profits. A copyright holder may recover statutory damages even if it did not submit evidence regarding actual damages. Under the Copyright Act, each plaintiff is entitled to a sum of not less than $750 or more than $30,000 per act of infringement (that is, per sound recording downloaded or distributed without license). Because the defendant's conduct was willful, then each plaintiff is entitled to a sum of up to $150,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just.
There's nothing specifically wrong
with the jury instructions. They're exactly what the law basically says the judge should say. But, if you're the average person in the jury box, these instructions effectively
say "pick a number higher than $30,000 and less than $150,000." That's basically it. The numbers are framed right there, and the jury just has to pick. So, the last two juries picked $80,000 and now $62,500. If you're on the jury, you're not really thinking about what this actually means, or if the punishment fits the actions. You're told, by law, you should pick a ridiculously high number, and then you just sorta pick one within that frame, which has already been set for you. If you're told that they can
be fined $150,000 per song shared, and you assume that the law must make sense (because who would pass a nonsensical law?), then at no point do you ever consider the reasonableness of such an award. That seems like a pretty bad judicial system, because it encourages frivolous results that very few people can respect.