Singularity Law

In a recent filing with a federal court in Minnesota, the Motion Picture Association of America (MPAA) asserts that it should be permitted to recover up to $150,000 per copyrighted movie allegedly traded online using P2P file sharing without having to prove that anyone actually made a copy of that movie. That is in accord with the position taken by the Recording Industry Association of America (RIAA) with regard to music files.

To allow such an absurd claim to prevail would be to overrule hundreds of years of jurisprudence. For, you see, copyright infringement is a tort. And whether we deem copyright infringement to be an intentional tort, or based on strict liability, in either case the plaintiff must show some conduct that invaded the exclusive rights of the plaintiff as set forth in 17 U.S.C. §106.

It is also axiomatic that no liability attaches unless the defendant actually “copied” the plaintiff’s work, that is, unless the defendant’s work resulted from some electronic or mechanical process linked ultimately to a copy of the plaintiff’s work, or the defendant had “access” to a copy of the plaintiff’s work and produced something that is “substantially similar” to that work.

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The MPAA and RIAA argue that they should be absolved from having to plead or prove such actions, since Internet technology does not permit such proof. Once a user places a file containing a copyrighted movie or sound recording on their hard disk, there is no evidence of whether anyone ever downloaded (copied) that file. Therefore, the argument goes, since we cannot prove that an infringing act ever occurred, we should not be required to do so. We should be allowed to demand $150,000 in statutory damages per song without proving a necessary element of our case – namely, a violation of at least one of the exclusive rights of Section 106.

I am sure every tort plaintiff would love to be able to avoid having to show all of the elements of a prima facie case and still recover enormous damages. I am sure someone who fell down at Wal-Mart would like to recover damages without having to show that the retailer did something wrong. But that’s not how the law works. The plaintiff has to make a prima facie showing of all of the elements of its claim before going to court. If it cannot, it should not file suit.

In the filings by the MPAA and RIAA, they have essentially conceded that they have no evidence that people with movie and music files on their computers are violating the law. As such, they should not be filing lawsuits or threatening college students with meritless claims in an effort to extort money from them. And the lawyers who file these meritless suits should be prepared to pay Rule 11 sanctions. This situation has got to end. Hopefully the judge in the Minnesota case will send a strong message to these organizations that their conduct will no longer be tolerated.