Thursday, October 8, 2009

My response to Professor Samuelson on Constitutional Limits to Statutory Damages

PENNumbra, the online supplement to the University of Pennsylvania Law Review, has now posted my response to Berkeley Law School Professor Pamela Samuelson in our continuing debate over possible constitutional limits to copyright statutory damages. I argue the position that last summer's awards against peer-to-peer infringers Jammie Thomas-Rasset and Joel Tenenbaum, though large, do not violate the Constitution, and should not be analyzed under the "guideposts" for evaluating punitive damages set forth in BMW v. Gore. Professor Samuelson and I will each get one more round to speak our respective minds.

1 comment:

  1. Your rejoinder at PENNumbra raises an important point that seems to have been lost in all the rhetoric associated with statutory damages. "Statutory damages" are just that, "damages". They are not "damages + punitives" in the conventional sense.

    The commentary by Ms. Samuelson seemingly treats statutory damages as if the are almost entirely punitive in nature. She appears to "buy-in" to the "It is only $0.99/song" argument, and then proceeds to view everything in excess as a punitive award.

    I do not recall the precise jury instructions provided in the Rassert-Thomas and Tennenbaum cases, but my present sense is that "punishment" was not one of the instructions. Please feel free to correct me if I am mistaken.

    Until such time as those like Ms. Samuelson focus their legal arguments with this important distinction in mind (a distinction that in my view is incredibly important in their attempt to promote Gore as controlling), their words will continue to ring hollow.

    On a final note, I was pleased to see "share" presented in quotations. This is a word coined by the developers of P2P software and since adopted by the vast majority of P2P users. Personally, I much prefer using a word that more accurately describes "share", and that is "distribute".

    As Bill Patry notes, many in the content industries use words calculated to, in his view, to cause "moral panic". My purpose here is merely to note that "moral panic" word selection is not limited to just the content industries. Those interests on the other side of the aisle are equally culpable.


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