ACTA Stipulates Increased Damages For File Sharing

What the copyright lobby never wanted to see: Elected members of the Polish parliament protesting against ACTA

”ACTA changes nothing” has become the favorite mantra of those who want to push the agreement through at any cost. This in itself is of course a strong signal that there is something very suspect about the whole issue. If ACTA really changes nothing, why are they spending so much effort on getting it through?

The answer is that those who are saying that ACTA changes nothing are either lying, or have been misled themselves. The whole purpose of ACTA is to increase the enforcement of intellectual property rights, including on the internet. Of course it changes things.

One example of a very concrete change that ACTA will bring if it is adopted, is the damages that you will have to pay to the film or record company if you are convicted of illegal file sharing.

According to ACTA, the damages for illegal file sharing will be higher, in some cases absurdly high.

In Article 9.1 of the ACTA agreement, it says that

… In determining the amount of damages for infringement of intellectual property rights, a [signing country’s] judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

(emphasis added)

In other words: to calculate the damages for having a disk full of illegally copied songs, you would multiply the number of songs with the suggested retail price for a song. But although this may look pretty harmless at first glance, it will lead to very drastic consequences in practice.

A two-terabyte disk can hold roughly half a million songs. If you calculate that at the market price of 1 euro per song, which is quite normal, then the damages for having a 2 TB disk full of music would be half a million euro.

Would that be proportionate or not? Remember that this is not an extreme example, it is something that lots of teenagers do. Would it really be proportionate that the family would have to sell their house and all their possessions if they were found out?

Under current European laws, damages are (at least in principle) limited to actual losses that the party that wins can show that he has actually suffered. They have to be proportional. Not even the lawyers for a film or record company would be able to convince a European court that they have actually lost half a million euro in non-purchases from a teenager who has never seen that kind of money in his life.

But according to ACTA, the film or record companies would no longer have to prove that they have actually lost the money. All they need to do is to multiply the number of songs with the price for one song to get the amount of damages measured by the suggested retail price.

A half million euro claim against a teenager with a 2 TB disk would be considered disproportionate and absurd by any European court today. With ACTA, awarding those damages becomes mandatory.

The copyright lobby knows this, or course. They have been deeply involved in the ACTA negotiations since day one. It is only the citizens and the elected members of parliaments that have been kept in the dark for as long as possible. The plan was to get ACTA signed, sealed, and delivered before too many elected politicians in parliaments knew the real consequences of ACTA as well.

We must now make sure that that plan does not work.

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More on ACTA and damages: FFII.org,