Over at Boingboing.net, Cory Doctorow linked to a rather obscure post on Donny's Blog noting that in its lawsuit against the Swedish BitTorrent site ThePirateBay, the RIAA's statutory damage claim suggests that the amount of music piracy tied to this one site in a single month is many times the GDP of France:
A blogger multiplied the number of music downloads from ThePirateBay in a month by the $150,000 the RIAA asks for in statutory damages for each download and discovered that the music industry believes that one month's worth of downloads costs it more than the GDP of France.
The blogger in question:
... Lately we've been hearing more and more about the RIAA suing people over downloading music. Many people are skeptical of of the figures of lost revenue the RIAA reports, giving arguments like not every song downloaded equals a song that would have been bought. With all of this talk, I decided to investigate the cost of piracy, using the perfectly reasonable figures given by the RIAA: $150,000 per infringement.
The Copyright Act permits a copyright owner to claim $150,000 per infringement, and the RIAA has been using that figure when they've sued individuals. However, they claim that they only lose 300 million per year due to piracy, which would equate to only 2000 songs downloaded per year. Clearly something is wrong - to find out the real cost of piracy, I went to http://www.thepiratebay.org to find out how many songs are downloaded in a month, in order to make a more accurate estimate of the losses to the music industry.
Now here's the thing. Of course "Donny's" tongue is firmly in his cheek, and we can all agree that the harm to the RIAA and its members from one month of piracy at ThePirateBay, whether calculated as lost sales, or the retail price the songs would have fetched in a store, doesn't come close the GDP of France. And certainly many would agree that the RIAA's damages claims in this lawsuit and others tend to overstate their actual losses. But the $150,000 figure cited by Donny doesn't relate to any sort of actual loss. It's a statutory damages figure provided for under U.S. copyright law (17 U.S.C. Sec. 504):
Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
The next subsection goes on to say that if the plaintiff can prove the infringement was willful then that $30K figure rises to $150K. These statutory damages seem intended to provide the option of a nice high figure to serve the dual functions compensating the copyright owner(s) when actual damages are hard to prove, and acting as a punitive deterrent. But an important thing to notice is that Donny not only misinterprets what a statutory damage claim means, but more importantly, he misreads the statutory damage provision. The statutory damage amount ($30K in the paragraph above, $150K if willful) is not per infringement, but rather, per work -- "for all infringements involved in the action, with respect to any one work." So if RIAA were to prevail, and be awarded the maximum statutory damages, the total would be $150K times the total number of individual song titles that people downloaded, not the total number of files. In Donny's analysis, that means that, roughly speaking, RIAA would be entitled not to $11 trillion ($150K times the 73+ million individual downloads), but rather, $355 million ($150K times the 2370 torrents available that month).
Yes, it's still a staggering figure -- we're only adding up claims with respect to a single month and yet the total is roughly equivalent to a third of what the music industry claims they lose as a result of "piracy" in an entire year ($1 billion -- Donny's says the RIAA's yearly loss claim is $300 million, but actually RIAA claim they lose that much in counterfeit disc sales alone). Put another way, if based on a single year, RIAA could theoretically win a judgment against ThePirateBay of $4 billion, or 4 times what they claim they lost to "piracy" from all quarters. And yes that seems excessive. But it's not the GDP of France. It's not even the GDP of Malawi. Moreover, there's no chance of collecting, since ThePirateBay doesn't have that much money.