In successive months during the summer of 2009, the music labels won two monstrous jury verdicts for willful copyright infringement against two peer-to-peer file sharers. In June, a Minneapolis jury found single mother Jammie Thomas-Rasset liable for $1.92 million for downloading and sharing twenty-four songs on KaZaA’s file-sharing network. One month later, a Boston jury ordered college student Joel Tenenbaum to pay $675,000 for downloading and sharing thirty songs in the same manner. Neither jury made a finding about the damage caused to the music labels by the defendants’ activities. Rather, both awards were based on the Copyright Act’s range of statutory damages of $750 to $150,000 per work—available to those who register their works prior to infringement.
In this month’s debate, Professor Pamela Samuelson and Ben Sheffner discuss whether such “whopping” statutory damage awards are constitutional. In her Opening Statement, Samuelson argues that while not all statutory damage awards—or even all those extracted from peer-to-peer file sharers—are unconstitutional, it is “difficult to square [the verdicts from this summer] with Congressional intent or with the Supreme Court’s due process jurisprudence.” Relying on the “guideposts” established by the Court in BMW of N. Am., Inc. v. Gore to judge punitive damage awards, Samuelson lays out the case for reducing the “grossly excessive” jury verdicts.
Professor Samuelson's opening argument is already posted; my response will appear next week.