The US Supreme Court is being asked to decide whether or not a $222,000 fine for sharing 24 songs in unconstitutional.

Readers may be surprised to learn that, in addition to gay marriage, abortion and semi-automatic weapons, the US constitution also remains frustratingly silent on the subject of Kazaa, so instead, I’d like to look at the more useful question of whether or not this sort of penalty is sensible.

As things stand, the statutory damages for copyright infringement are up to $150,000 per count of willful infringement. A count of wilful infringement is offering a work for download so that’s 150 grand per song.

The RIAA has already stopped suing individuals for file sharing. These lawsuits weren’t completely ineffective: pretty much everybody knows that filesharing is illegal now, but they weren’t terribly effective at preventing online piracy.

For a penalty to be a good deterrent, it has to be severe enough that wouldn’t want it to happen to you, and you have to believe you can get caught. When you’re doing a risk assessment, you might look at it like this:

Risk = Penalty x Chance of getting caught*

If the chance of getting caught is low, the penalty has to be more severe.**

The trouble with this line of thinking is that if the penalty is too harsh, it cannot be meted out more than once.

Let’s say, for example, you’re an intern at NPR and you’ve obtained 11,000 songs by dubious means. You’re on the hook for $1.6 billion in damages. If the RIAA comes knocking, you’re screwed. So screwed, in fact, that you won’t be in a substantially worse position if you do it one more time.

According to one source, about four billion songs are illegally downloaded in the US each year.

At $150,000 per count, the total exposure to damages is six hundred trillion dollars a year.

With only $1.08 trillion in circulation, there’s only enough US currency in existence to cover the fines on about fourteen and a half hours of US music piracy.

Constitutional or not, this is daft.

Something the framers of the US constitution certainly were familiar with, though, was real piracy.

From 1790 until 1897, piracy was punishable by death under US law, and the death penalty remained (at least technically) available under UK law until 1998.

Notorious captains aside, if you were going to catch somebody committing old-fashioned piracy on the high seas, you pretty much had to catch them in the act, which effectively gave the crime a very short statute of limitation. The one time you had to worry about getting executed for pillaging was right around the time you were deciding to do some pillaging.

This solved the $1.6 billion problem, and created an ongoing deterrent that worked (or didn’t) just as well for the 11,000th count as it had for the 10,999th: you knew that if you stopped now, you’d probably get away with it.

Now, this might seem like a rather harsh response to downloading a few songs, but there’s an argument to be made that all we need to do to fix piracy is to reintroduce the death penalty, contingent on actually catching people in the act.***

After all, it wasn’t until the UK abolished the death penalty for piracy 1998 that things started to go downhill…

…and that, my friends, is proof, if ever I saw it.

* There’s an argument to be made that this should have worked: if people were truly rational, they’d understand that you only need a one-in-150,000 chance of getting caught for stealing a song to be a bad deal. Even if it wasn’t effective as a deterrent, the RIAA should have been able to recover its losses: if the losses due to piracy account for $12.5 billion/year, the RIAA only needed to recover damages on one in every 48,000 counts of piracy. The trouble with both of these lines of reasoning is, as it turns out, people who steal music don’t have hundreds of thousands of dollars in assets lying about.

** Or you have to increase the perceived chance of getting caught, effectively tapping people on the shoulder and saying “we can see what you’re up to. This is what they do in France, and it really seems to work.

*** If this doesn’t end piracy, it will at least get us faster broadband.