The issue I have is the discrepancy in amounts. $7500 is targeted to make it just cheaper than dealing with a lawyer. The $150k is statutory damages designed to deal with commercial infringement.
To quote Wikipedia:
Lawmakers will provide for statutory damages for acts in which it is difficult to determine a precise value of the loss suffered by the victim. This could be because calculation of a value is impractical, such as in intellectual property cases where the volume of the infringement cannot be ascertained.
In the United States, statutory damages [for copyright infringement] are set at a minimum of $750 per work, to a maximum of $30,000.
It seems to me that suits on torrent-distributed "pirate copies" need to make a distinction between seeders and others in the network.
A torrent is a tree distribution. When it's working as intended:
- The person who seeded the torrent committed a deliberate action that made the work available to everybody in the network who eventually made a copy.
- The others in the network, on the average, only hosted the down load of one copy. For every person (including the seeder) who hosts the download of one copy, there is one person who didn't host any actual downloads at all, for every person who hosted two downloads there are two who didn't host any, and so on. Sure the early players host a few more downloads - but the late players download none and the average is still one per participant. (That's what makes torrents useful despite the slow upload speeds of most home internet connections.)
Granted it's hard to tell how many downloads any given network participant actually hosted. But if he had not chosen to join the network and download a copy for himself (with software that also made downloads available), the remaining participants would have still gotten their copies. The number of infringing copies made would be reduced by only one. (On the other hand, if a seeder had not seeded, there would be no infringing copies.)
So it seems to me that, by the internal logic of the "statutory damages" law, it could certainly be argued that the seeder enabled some unknown large number of copies, and thus appropriate to apply the high-end damages on the seede. But to apply that to the other participants in the tree - who averaged one copy (effectively: their own) apiece - would be coming to the well repeatedly. The right penalty for the other participants would be the statutory minimum - or even less, because you can show that, with an average enabling of one copy, they don't fit the "unknowable but large number" model that the "statutory damages" legislation contemplates.
Of course there's also the issue of the torrent NOT working as intended: It's possible to configure a client in a "leach" mode, where it only downloads, and this means non-leaching participants host an extra download for each "leach", who doesn't host his "average of one".
But the default configuration is non-leach. How many participants change that (or are otherwise unable to host)? If it's half, the average for the remainder is still only two hosted downloads. If it's 75% they're hosting four. With a statutory minimum penalty of $750 and a $10/copy work you'd have to have 87% leaches to cross break-even. (Aren't there studies of the leach ratio? This is a civil trial under a "preponderance" standard so IMHO such studies should be admissible.) Meanwhile, for every two non-leaches there'd be 13 who could truthfully claim "I didn't host ANY downloads. I shouldn't even be in court."
IANAL. But I'd love to see how a judge would handle a claim that seeders might be due the maximum penalty but every other participant either the minimum or perhaps three times the retail price.