RIAA v Jammie: crossing the constitutional line
p2pnet news view Freedom | P2P:- The jury in the retrial of Jammie Thomas-Rasset, “deliberated only a few hours” before concluding she’d, “willfully infringed the copyrights of 24 songs and awarding $1.92 million in statutory damages ($80,000 per recording) to the record label plaintiffs,” writes the Electronic Frontier Foundation’s Fred von Lohmann in Deep Links.
The verdict, “represents a huge increase over the $220,000 award in the original trial, which was overturned by the judge based on a faulty jury instruction pushed by the record labels,” he says, going on
Ms. Thomas-Rasset has said she doesn’t have the money to pay this award (those wondering whether bankruptcy might protect her should consult EFF’s 2007 memo covering the intersection of copyright verdicts and bankruptcy law, as well as In re Barboza, 545 F.3d 702 (9th Cir. 2008)).
Given the size of the statutory damages award, Ms. Thomas-Rasset’s legal team will likely be seriously considering a constitutional challenge to the verdict. A large and disproportionate damage award like this raises at least two potential constitutional concerns.
First, the Supreme Court has made it clear that “grossly excessive” punitive damage awards (e.g., $2 million award against BMW for selling a repainted BMW as “new”) violate the Due Process clause of the U.S. Constitution. In evaluating whether an award “grossly excessive,” courts evaluate three criteria: 1) the degree of reprehensibility of the defendant’s actions, 2) the disparity between the harm to the plaintiff and the punitive award, and 3) the similarity or difference between the punitive award and civil penalties authorized or imposed in comparable situations. Does a $1.92 million award for sharing 24 songs cross the line into “grossly excessive”? And do these Due Process limitations apply differently to statutory damages than to punitive damages? These are questions that the court will have to decide if the issue is raised by Ms. Thomas-Rasset’s attorneys.
Second, recent Supreme Court rulings suggest that a jury may not award statutory damages for the express or implicit purpose of deterring other infringers who are not parties in the case before the court. In other words, the award should be aimed at deterring this defendant, not giving the plaintiff a windfall in order to send a message to others who might be tempted to infringe. It’s hard to know without having been in the courtroom, but if the record industry lawyers urged the jury to “send a message” to the millions of other American file-sharers out there, they may have crossed the constitutional line.
For more on the details of these constitutional doctrines, I recommend a recent article by Prof. Pamela Samuelson & Tara Wheatland, Statutory Damages in Copyright Law: A Remedy in Need of Reform (full disclosure: Prof. Samuelson is a member of EFF’s board of directors). For those who want a shorter summary of the debate in podcast form, I recommend Prof. Douglas Lichtman’s IP Colloquim episode entitled Statutory Damages and the Tenenbaum Litigation. While I disagree with some of Prof. Lichtman’s conclusions, his guests do a wonderful job summarizing the relevant cases and concepts.
“I assume these arguments will first be submitted to the trial judge in post-trial motions,” von Lohmann says, adding:
“After all, this judge has already indicated that he found the previous $220,000 award to be ‘unprecedented and oppressive’.”
$1.92 million – Pay Big Music $1,920,000, Jammie told, June 18, 2009
Deep Links - Record Labels’ $1.9 Million Win in Thomas Retrial Constitutional?, June 18, 2009
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June 19th, 2009 at 12:38 pm
The BS is out in full force.
http://www.minnpost.com/stories/2009/06/19/9654/download_decision_its_meaning_for_music_industry_and_consumers
Mike Spence sounds like he’s only read one side of the coin and thinks he knows what it’s all about.
“This is a huge victory for artists, businesses that create commerce with the artists’ content, and groups like the RIAA, who serve as a consolidated voice for those artists and businesses.” Is the biggest pile of BS I’ve ever read. This is not a victory for artists and it clearly shows just how out of touch with reality and the customers these people are.
“Downloading copyrighted music violates two of the owner’s exclusive rights — making copies of the song, and then distributing those copies.” The owners are the labels, not the artists, so again, artists do NOT benefit from lawsuits.
Artists would benefit if the prices on iTunes and the like were dropped in half. Artists would benefit if they sold their content with a “pay what you feel is right” after sampling concept. Artists would have control if they didn’t sign away their temporary monopolistic privileges (aka ‘rights’) to artistically challenged-commerce-only-focused-technologically-challenged-slow-to-adapt-greedy corporations run by blind people.
“As far as music downloading, it is here to stay, and will grow to surpass physical [CD] sales. Now, more people will hopefully think twice before choosing where to get that new digital song they want. There are many legitimate, affordable and even some legal, free sites. This case probably gave everyone about 2 million reasons to do the right thing.” Sound a bit contradictory, if downloading will grow, how can you assume they are going to be thinking twice on doing the ‘right’ thing for the labels (not for consumers or artists)?
Right, back to sleep Mick Spence, sorry buddy but you need to read more than pamphlets from the RIAA to get a picture of what’s really going on.
June 19th, 2009 at 3:26 pm
The law the used to convicted is unconstitutional anyway and enforcing this law is a crime punished by fine and or prison terms.
June 19th, 2009 at 4:55 pm
This is where it will backfire on the RIAA. It’s time for the DMCA to be re-evaluated. It was written pre-Napster and was intended to be used against TRUE pirates who profit off the works of others. They are grossly abusing it now in their pursuit against mothers and young kids who don’t know any better.