July 22, 2022 Musicology No Comments

Among other things.

Meta (formerly Facebook) stands accused of copyright infringement and is being sued by production music company Epidemic Sound for “damages” of 142 million dollars!!! We can talk about the ins and outs of that later. First, though, do you wonder how on earth Epidemic Sound came up with that number? Here’s an explanation: It’s way simpler than you might imagine.

Of course, the more common use of the word “damages,” is the harm caused to someone or something. In civil lawsuits, “damages” are the monetary compensation for the harm caused.

In copyright infringement lawsuits, damages come in two basic flavors, “statutory damages” and “real damages.” Real damages often depend on how much the infringer benefited from the infringement. If, oh, let’s say, Ed Sheehan, was accused of owing most of the success of “Thinking Out Loud” to Marvin Gaye’s “Let’s Get It On,” then most of the money he made from “Thinking Out Loud” would be a good place to start the damages calculation for that infringement. That’s an, “If!” mind you, a big “if.” Actually, Ed will probably be embroiled in that ridiculous mess any time now, and he should come away unscathed. We’ve covered that case, and why Sheehan should prevail, almost too thoroughly. But whatever number he’s being sued for, it’s gonna be based on damages of the “real” variety. “Thinking Out Loud” was a very successful Ed Sheeran song, and the plaintiffs will be going after that pile of money.

Epidemic Sound is going for the “statutory” type of damages. A “statute,” is, of course, a piece of written law, and “statutory damages” are damages amounts, or ranges, that are established by law. And they’re established per offense. So, when you’re a music library like Epidemic Sound, and you believe Meta made 950 of the works in your library available to its users without acquiring the proper rights from you the copyright holder, that’s arguably 950 separate acts of infringement. And the statutory damages range for copyright infringement is between $750 and $30,000 for each act of infringement. UNLESS, that is….

Unless the infringement was “willful!” When the court finds, that infringement was committed “willfully,” then the court, in its discretion, can award up to $150,000 per act! FIve times more, potentially. I’ve said numerous times, I have practically never seen a complaint that didn’t say the infringement was intentional. This one says the theft occurred “knowingly, intentionally, and brazenly,” so here we go.

Let’s do a little back-of-the-napkin math now: The maximum statutory damages per act, $150k, times the 950 songs, and you get $142,500,000! Pretty simple. 

I’m reminded of the time Ford was sued by Freeplay Music, a pretty similar situation. 

The TLDR is that Freeplay is a music library as well, and 54 of the works in Freeplay’s library were allegedly used by Ford. And 54 x $150k is $8.1 million, and there you are.   


As to the case’s merits, I’ve no opinion on whether Meta is an infringer here, and even if I did, I’m not a lawyer; I’m a musicologist. And I’ve only begun to read the complaint. It seems to involve the fact that there are rights management tools on Facebook and Instagram that allow rightsholders to somewhat manage the use of their copyrighted material on the platform. And it’s weird if true, as the complaint alleges, that Meta has really ignored Epidemic’s repeated notices of infringement and denied Epidemic access to those tools, but perhaps Meta has some reason to believe they’re somehow not infringers. I can think of all kinds of possible rationalizations. The plaintiffs meanwhile have top-shelf legal representation, so, get your popcorn ready. This could have all kinds of complexities to consider. But the damages calculation that led to a number like $142 million is super simple.

Written by Brian McBrearty