With Limewire officially shutting down following its (totally expected) legal loss
earlier this year, you might have though the case was totally over. However, the record labels quickly claimed that with the loss, Limewire should have to pay a billion dollars
, which seemed a bit extreme. In typical RIAA fashion, the labels didn't feel like they should have to prove any damages at all, but that the judge should just order statutory rates. However, Limewire asked the judge to have the record labels actually prove
their losses -- and, somewhat stunningly -- it appears the judge has agreed
, despite the record labels' claim that trying to prove damages would represent a "crushing burden":
On Tuesday, Judge Freeman said tough noogies, with some interesting language written in the margins of a court-endorsed memo to the parties. She scribbled -- barely legible -- that Lime Wire should enjoy enough discovery to mount a defense on the damages issue. Both Lime Wire and the labels must pick 100 works -- 80 songs and 20 albums -- that each believes to be representative of the damage (real or not) that file-sharing has on the record companies. In addition, 100 more works -- another 80 songs and 20 albums -- will be selected at random.
It's not entirely clear, from there, how each side will go about showing damages, but it is interesting that the plan seems to be to look for empirical evidence to determine actual
damages. I'm really surprised by this -- since my understanding was that with statutory rates, the whole idea was that the copyright holder never had to bother proving any actual damage (something I disagree with -- but it's what I thought the law said...). Either way, it certainly would be nice if there were some reasonable
data to work with, so this should be worth following.