1. Option 1 doesn't seem very attractive. The trouble is that these statutory damages were not enacted to deal with problems of everyday music piracy. They were present before music downloading came to the fore, and in light of modern practice they are ridiculously harsh. Everyone knows it. So why doesn't Congress change them? Powerful lobbies are part of it. Laziness and the legislative backlog are another. In any case, copyright law isn't equipped to deal with online copying.

   I have long suspected that if some regular individual were actually to go to court, try to fight the suit, lose, and get slapped with $50 million in statutory damages, Congress would act pretty damn quickly to fix this situation. Throughout this nation's history, Congress has always been very efficient in acting to provide legislative relief for problems highlighted in high-profile court cases. What that fix would look like in this case is anyone's guess, but at the very least it would change the statutory damages to more reasonable amounts. Reasonable statutory damages, in turn, would encourage more people to fight the lawsuits. Fighting the lawsuits would make them prohibitively expensive for the record companies, and the suits would cease except in the most egregious cases.

   And in truth, if either party requests, the damages will be a jury issue, where they'll be asked to determine damages at not less than $750 per instance of infringement, and not more than $30,000 (that number increases to $150,000 if the infringement is considered "willful"). Any jury of which I can conceive would come down at the lowest point possible there, but that's still a ton. Then there's the issue of whether an "instance of infringement" is copying a song, or copying an album. Assuming it's copying a song (and I think that's probably how things would end up if it were tried), those amounts are particularly large.

   For my music collection, I just calculated and determined that the minimum damages would be $20 million. The max if my infringement is willful (and it would be difficult, given my knowledge on this subject and IP, to argue that it wasn't willful) would be $4 TRILLION DOLLARS! My copyright infringement is worth half of the United States' national debt? Yep.

   I don't know of any basis on which the courts could strike down the statutory damage amounts (they've already determined that the seventh amendment makes statutory damages a jury issue), but who knows what the courts or legal scholars could come up with? Cruel and unusual punishment? Probably not applicable to these civil cases. These statutory damages as a fifth/fourteenth amendment due process violation? More likely, but still without much precedent for this sort of thing. But who knows? Maybe things could be improved within existing law.

   And in fact, recently a few people have claimed that they're going to fight the suits. These people aren't exactly my ideal test cases, mostly because they actually weren't responsible for the piracy. So they probably will win, which won't help nearly as much.

2. Option 2, while better than the absurdly large figures initially tossed out, isn't exactly fun either. They offer to "settle" for around $8000, and then you "negotiate" the amount down to about $3500 because the RIAA is so nice and understanding of your situation. But these settlements are no more freely negotiated than EULAs in software, or a rental contract in a housing monopoly.

   Sure, the record companies ought to have the right to set the terms under which they're willing to settle one of these cases, just as anyone should in a suit. But when the alternative to settlement is a government-guaranteed fortune, there isn't much of a choice at all. To illustrate this point, consider the following: If the RIAA were offering to settle for $10,000 instead of $3500, would fewer people settle? Probably not by much. There are simply very few people in this country who can afford not to settle, unless they actually aren't liable for infringement. I don't think I know a single person my age whose past actions haven't made them liable for infringement in an amount of at least one hundred thousand dollars. So of course everyone would settle for $10,000 or more. And if people can't negotiate, or the settlement is price-independent, then are those settlements truly negotiated-for? No.

When they're willing to force kids out of college, put liens on families' housing, and generally disregard any real sense of justice in pursuit of profit, and when our politicians are at least complicit in this process, the world is a pretty absurd place.