Just after a general opinion, what would people rate as a fair penalty in this case?
We can see this principle at work in the fines for things such as littering, illegal parking, and drunk driving. Individual instances of these crimes gain a person a small amount of value; the fines for being caught are around one or two orders of magnitude greater than this (at first--often repeat offenses raise the expense another order of magnitude in the form of either jail time or increased insurance costs), in line with the approximation of being caught a non-negligible fraction of the time.
By comparison, illegal file sharing has a vanishingly small chance of getting your life completely destroyed. The problem with this is two fold. First, it isn't at all calculable what the expected value is; there simply isn't enough data to accurately determine what the probability of getting caught from any single illegal act is. Second, the enforcement rate is sufficiently low that, even if it were reliably calculable, people would not emotionally treat it correctly--the same emotional detachment from strongly negative consequences occurs here as the one that makes people take other sorts of extreme risks such as teenage unprotected sex, extreme sports, and going to war as a foot soldier (note that I am not saying that these always have negative expected value; merely that people are not good at estimating these sorts of risks).
The problem the RIAA faces is that enforcement to the degree necessary for a lower level fine to create sufficiently negative expected value is a practical impossibility; there's no reasonable way to effectively catch and fine even 1% of file-sharers (a rough estimate of what order of magnitude of enforcement is necessary to make people effectively able to gauge the risk--such an enforcement rate would not stop illegal file sharing altogether, but it would at least slow it down, much like my other examples). The only long-term option is to change business models to one less completely invalidated by the advance of technology.
I fully agree that the expected cost/benefit balance has to be redressed. Personally, the way I see that occuring is via a variant of the three-strikes rule proposed in France. I think that rule is too draconian; I do think that the internet has enjoyed a penetration level in society similar to that enjoyed by other basic amenities such as water and electricity. So shutting someone off from the internet is a highly draconian measure, perhaps infringing on someones human rights.
But what if rather than cutting someone of completely, you just limited their bandwidth to a size to make, say, reading email and news practical, but make it impractical to fileshare music in any reasonable volumes. What's good about this is that the penalty fits the crime: you'll still be able to enjoy the internet, just not media-intensive stuff. Certainly a nuissance and displeasurable to the perpetrator, but it seems to me a proportionate and fair response, and it directly affects their ability to continue engaging in the illicit activity.
I would be more inclined to suggest limitations on internet usage for 2^N months (or some reasonable facsimile) for an Nth offense.
Of course, any such scheme is dependent upon dramatically better enforcement, in much the same way that, due to ineffective and uneven enforcement, drug laws are not an effective deterrent.
Most 3-strikes proposals, including the HADOPI one, say that someone should be punished on being accused of filesharing by the entertainment industry, not on being found guilty of anything. Is it fair to punish someone if they've not been given due process and been found guilty by a court of law? I say it isn't, but 3-strikes proposals, including the HADOPI one, say that someone should be punished on being accused of filesharing by the entertainment industry, not on being found guilty of anything.
Is it fair to punish someone if they've not done anything wrong, but if amember of their family or a flatmate has? I say it isn't, but 3-strikes proposals say that everyone using an Internet connection should be punished, for what one of them does. This is collective punishment, it's repugnant to the English Common Law legal tradition, and if you do it in wartime, you're a war criminal.
In any case, your arithmetic seems to me to measure the wrong thing. The problem is not that she downloaded the songs. The problem is that she made them available for downloading. If all she had done was burned 24 tracks from a friend's collection and listened to that in her car and gotten caught, then your calculation makes sense. But each time someone downloaded the songs she made available, that person no longer need to buy the album from the artist. That's why two dollars per track, IMHO, is far from being a fair figure from damages. It's the viral aspect which makes P2P different, from, say, copying cassettes like we did when we were kids.
For most minor and petty crimes (such as my examples in another comment; parking violations, drunk driving, etc.), mens rea is unneeded (in the US, at any rate). The question of what degree of mens rea is relevant for intellectual property theft is both open and relevant; simply saying that, for example, it should should require mens rea because larceny (theft) does ignores the fundamental differences between the two.
EDIT: Two clarifying points. First, there is legal language describing the mens rea necessary in intellectual property theft; however, there is not a significant body of case law interpreting exactly what it means. Second, the reason that you can't just copy the mens rea of larceny is that intent to commit larceny is the intent to deprive the rightful owner of the object, which is clearly not a factor in intellectual property theft.
I dunno - it seems that if we're going to punish her for sharing as well, do we then not go after those 7-8 people that downloaded from her? Seems like there's a bit of double-dipping that's possible here (which again would lead to an Infinite amount of damages).
But i'll give you that. We're now at $8-$10 a track. Which makes her fine somewhere between $200 and $17,000, still orders of magnitude less than the actual outcome.
I'm against music piracy and I think those who get caught should be responsible for paying back what they took from the other party. But bankrupting a person serves no societal purpose and actually provides a disincentive because someone who owes more money than they could ever pay will probably end up paying nothing at all. While someone who owes a couple thousand will probably just take the hit and move on.
The sense of entitlement evident in a statement like that is frankly breathtaking. I should be able to break the law, lie about breaking the law, get dragged into court, waste everyone's time, and then, as punishment, I should be given the option to simply delete the offending files? Are you serious? And what about the all the individual downloads of the songs she made available? Should we just ignore those, because the original perpetrator no longer has them?
It's quite obvious that you haven't given this a great deal of thought.