To support its proportionality argument, FSF contends that Plaintiffs’ lost profits in the case should be based on a per/download loss of “approximately 35 cents.” Apart from the fact that the argument relies on “facts” not in the record in this case, the contention ignores the nature of Defendant’s infringement. Defendant has not only infringed Plaintiffs’ works through downloading, he has also distributed Plaintiffs’ works for years to potentially millions of other file sharers. The harm to Plaintiffs from such massive distribution over a period of many years is incalculable – and undeniably worth exponentially more than 35 cents. Indeed, the cost of an unrestricted license to distribute Plaintiffs’ copyrighted works for free on the Internet would be astronomical. Thus, Defendant’s suggestion that Plaintiffs’ lost profits total 35 cents per download misconstrues the nature of Defendant’s infringement and should be rejected.Technically, the plaintiffs' brief won't be considered by the district court unless it first grants this motion for leave to file. The hearing on Tenenbaum's motion to dismiss the claim for statutory damages on constitutional grounds is set for April 30.
(h/t Recording Industry vs. The People)