If a song has been downloaded from a torrent site 17,000 times, it doesn't necessarily equal 17,000 lost sales, according to US District Judge James P. Jones. The judge recently ruled against using this kind of reasoning in determining restitution in a criminal copyright case, though it doesn't necessarily affect civil cases against downloaders.
Record companies cannot collect restitution for every time a song has been illegally downloaded, a US District judge has decided. Judge James P. Jones gave his opinion on United States of America v. Dove, a criminal copyright case, ruling that each illegal download does not necessarily equate to a lost sale, and that the companies affected by P2P piracy cannot make their restitution claims based on this assumption.
Daniel Dove was originally found guilty of criminal copyright infringement for running a torrent group called "Elite Torrents" between 2004 and 2005. The jury in the case had found Dove guilty of reproduction and distribution of copyrighted works, as well as conspiracy to commit criminal copyright infringement. At the time, Judge Jones sentenced Dove to 18 months in prison for each count, plus a special assessment of $200 and a $20,000 fine ($10,000 per count).
However, the RIAA and Lionsgate Entertainment had both submitted requests for restitution—they had argued that each individual copy of content downloaded through Elite Torrents was the equivalent of a lost sale. For example, the RIAA said that 183 albums were transferred through Dove's server 17,281 times, then multiplied that by the wholesale price of a digital album in 2005 ($7.22) to conclude that its member companies were owed almost $124,769 in restitution, or $47,000 if Dove agreed to be part of an RIAA "public service announcement" about piracy. Similarly, Lionsgate said that it owned copyrights to 28 of the 700 or so movies that Dove served up—Lionsgate argued that Dove caused the movie industry to lose some $22 million, and since Lionsgate owned copyrights to about 4 percent of the available movies, it was owed $880,000.
Jones wrote in his opinion that equating each download with a lost sale is a faulty assumption. "Those who download movies and music for free would not necessarily purchase those movies and music at the full purchase price," Jones wrote. "[A]lthough it is true that someone who copies a digital version of a sound recording has little incentive to purchase the recording through legitimate means, it does not necessarily follow that the downloader would have made a legitimate purchase if the recording had not been available for free."
It's important to note that this decision does not directly affect the thousands of civil cases that the RIAA has launched against accused copyright violators. Dove was convicted as a criminal copyright offender where restitution is a consideration, while the RIAA's civil suits can ask for monetary damages determined on an entirely different scale. For example, Jammie Thomas was found liable for $222,000 in damages in 2007 after "making available" only 24 songs (that verdict has since been overturned, however, as the "making available" theory has been riddled with holes via different rulings). "The factors that go into the calculation of restitution are different than the ones that go into the calculation of statutory damages in civil cases," the Electronic Frontier Foundation's Fred von Lohmann pointed out to Wired.
Still, the Dove ruling is reassuring in that it emphasizes once again the concept that a sheer number of downloads doesn't necessarily equal monetary losses. This is the same assertion made by software groups about piracy, such as the Business Software Alliance (BSA), and it keeps getting shot down.
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