Over the past few decades, one thing that's been fairly consistent coming from the legacy entertainment industry is this incredible blind faith in the claim that "if only the public were more educated about copyright law, piracy would go away." This mantra never goes away. This was the stated rationale
behind the RIAA's many thousands of lawsuits against individuals. It's been the stated rationale
behind programs like six strikes and Hadopi. And it's the reason behind a series
of ridiculous school propaganda programs
, the latest of which (which doesn't appear much different from past versions) is being rightfully mocked
Of course, as we've noted over and over again, there is almost no indication at all the "problem" the industry faces is an education problem. Instead, it appears to be a problem of their own making
, in that they refuse to recognize what the public is demanding, and thus are failing to deliver the product properly. Furthermore, this focus on "education" has never been shown to work. Past attempts to educate school kids resulted in kids rolling their eyes and verbally mocking such obvious propaganda. Furthermore, historical attempts at "educating" people not to copy have never worked
. And that's because it's never actually been an education problem. Sure, many in the public may not be fully educated on the ins and outs of copyright law. But, that's generally not why they're engaging in unauthorized access to content. They're doing it because they want to see/hear/read/run/play the content, and often that's the most convenient way.
This incredible disconnect by the MPAA is exceptionally clear in the actions the MPAA was taking in its legal fight against IsoHunt, right before the two sides agreed to a silly $110 million settlement
that will never be paid. Right before that settlement, TorrentFreak had a great article mainly discussing the MPAA's nearly apoplectic desire to avoid letting the jury hear anything about (the lack of) actual damages
arising from IsoHunt. It was an interesting story, though not quite as sensationalistic as the original article suggests. The MPAA is actually legally correct in arguing that one of the key points for having statutory damages is so that the copyright holder doesn't have to go through the process of determining actual damages. I (and many others) have serious problems with the whole concept of statutory damages for this very reason -- because it seems absurd to order incredibly high damages when no actual harm was done -- but that is what the current law is.
That said, I think the story is more interesting because of a few other points. First, the MPAA totally misrepresented the law and what IsoHunt was arguing. The MPAA was correct in noting the nature of statutory damages, but took it out of context concerning that lawsuit. The MPAA would have been correct if IsoHunt was using the effort to research actual damages to try to get out from paying any
damages. But it was not. IsoHunt had already lost that part of the lawsuit, and it was clear that the company was going to have to pay something
. The question was how much
IsoHunt was arguing, quite reasonably and well within the law, that in helping the jury determine where in the wider range of statutory damages
the award should end up, it would be helpful
to look at actual damages. That's perfectly reasonable. As it stands, a jury can award between $750 and $150,000 per infringement. All IsoHunt was arguing is that some showing of actual damages is reasonable for the jury to learn about to determine where in that rather large range the award should fall. That's both within the law and reasonable.
But much more insane and questionable was the MPAA's conduct in trying to pile on many more infringements after the fact
. The case itself revolved around a claim of infringement of 44
different movie files, which IsoHunt was found guilty of "inducing." We have serious issues with the idea that a third-party software provider should be found guilty for the actions of its users, but, given that the court has already decided this, the range of statutory damages should clearly be based on those 44 files
. Instead, however, at the very last minute, the MPAA added 3,903
more files to the list (3,190 of which are TV shows instead of movies) and said the statutory damages should be calculated on each of those files. That jacked up even the minimum
statutory award from $33,000 to $2.96 million. And moved the maximum up from $6.6 million to $592 million. At that rate, $110 million looks like a "bargain."
But -- and this is the important part -- at no point has anyone, including the MPAA, proved in a court that IsoHunt "induced" the infringement of all of those files
. In fact, as IsoHunt notes, they barely had any time to process the details of those files. In July, the MPAA suddenly announced that it was adding a bunch of files that weren't reviewed during the trial stage. It then refused to tell IsoHunt what those files were until September 16, when it provided it with a massive list of 4,145 files, barely giving IsoHunt any time at all to review all of those claims to see if they were legit. Furthermore, IsoHunt pointed out that, just in looking through the list and grabbing random samples, it found numerous examples where "the claimed infringement does not match the claimed work."
It should seem obvious that it's a massive abuse of basic due process to try someone over a specific legal infraction, and then only after the fact, at the point where damages are assessed, to magically add in thousands of more alleged infringements, which were never actually reviewed during the trial. And that's especially true in copyright cases, where different files may have different fact patterns and different defenses.
So why is the MPAA doing this? Even the judge in the case is befuddled, but the MPAA has its reason: education
Even the judge was confused why the MPAA wanted to pile on so many extra files when it was clear that it wouldn't make a difference. The transcript reveals the whole "we want to learn them internet folks" mentality coming from the MPAA's lawyers:
THE COURT: What do you estimate to be the resources of [Defendants]? . . . What do you suspect?
PLAINTIFF’S COUNSEL: Based on our estimate, Your Honor, we believe a couple to a few million dollars would exhaust Mr. Fung's or defendants' ability to pay...
PLAINTIFF’S COUNSEL: A couple to a few million dollars would exhaust defendants' --
THE COURT: Does that mean, like $2 million --
PLAINTIFF’S COUNSEL: Two million dollars to $4 million, $5 million at the most.
THE COURT: So why are you making such a fetish about 2,000 or 3,000 or 10,000 or 100 copyrights?
MR. FABRIZIO: Your Honor, the purpose of statutory damages is not only to seek compensation from the defendants, extraordinarily important purpose is to create -- send a message to other would-be infringers like defendants, and there are thousands of them....
THE COURT: But if you strip him of all his assets -- and you're suggesting that a much lesser number of copyrights would accomplish -- copyright infringements would accomplish that, where is the deterrence by telling the world that you took someone's resources away because of illegal conduct entirely or 50 times over?
But this is how the legacy entertainment industry guys think -- and it (once again) shows how out-of-touch and clueless they are. In the past, they've made this same argument in trying to justify the massive awards courts ordered against Jammie Thomas-Rasset
and Joel Tenenbaum
. The highly compensated lawyers think that awards of many millions of dollars (or over $100 million against companies like IsoHunt and Limewire) help "educate" people away from such things by scaring them.
But what they don't realize is that this strategy almost certainly backfires badly every single time. That's because the money is too high
. To average people making average amounts of money (i.e., not the lawyers the RIAA and MPAA hires, nor the execs from either of those organizations), millions of dollars is not a large number that is scary. It's an inconceivable abstract concept
. It's so insane
to actually feel unrealistic. It has no deterrent factor, because it's incomprehensible. Your average person doing some random file sharing recognizes that having to pay over a million dollars for such actions is so patently ridiculous that it doesn't even register as being something to be afraid of. It's not realistic.
You don't "educate" people with such high numbers. It's only the money-obsessed RIAA and MPAA that think the higher the number, the scarier the message, and the more effective the education. The reality is quite different. It just makes people respect those organizations less, and find the entire legal effort completely surreal and detached from reality. The RIAA and MPAA have gotten these types of awards before, and it has had no real impact
. People continue to access unauthorized content, and new platforms and services (often harder to track down) pop up every single time one of these sites gets shut down.
The MPAA thinks that it has to keep ratcheting up the "education" by seeking ever more ridiculous numbers, but at what point do they realize this doesn't work and has never worked
? When the "punishment" seems perfectly absurd to anyone with common sense, and tactics like piling on thousands of extra infringements not mentioned in the trial raise significant questions of due process and fairness, all the MPAA is doing is making sure that people have less respect and less interest in actually paying attention to the details of copyright law, because the MPAA (along with the RIAA) has worked so damn hard to "educate" the world that the punishments associated with copyright law make absolutely no sense.