Saturday, October 3, 2009

Samuelson v. Sheffner on constitutional limits to copyright statutory damages awards

Professor Pamela Samuelson of Berkeley Law School and I are participating in an online debate hosted by PENNubmra, the online supplement to the University of Pennsylvania Law Review. The topic: Does the Constitution impose limits on the size of statutory damage awards? The issue, of course, is of much interest to copyright litigators and others, following last summer's massive awards against peer-to-peer infringers Jammie Thomas-Rasset and Joel Tenenbaum. Here's the introduction, as framed by PENNumbra:

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.


  1. As a favor, please do not fall prey to using the word "share" to describe the activities of those who distribute works over the internet. "Share" has such a nice ring to it, but it also masks the true nature of the activity.

    Second, in the P2P world there are "seeders" and "leechers", the latter generally limiting their activities to downloading and the former to both downloading and uploading. "Seeders" are praised and "leechers" reviled (as the name certainly suggests). To say that "seeders" are little more than "innocents" who sought no profit is not at all accurate. They are persons who distribute content with the expectation that content will be provided to them and approbation received for being a content providing member of the P2P community.

    Third, Gore is of interest, but proponents of it as a limitation on statutory damages have as yet to present any complelling case. They proceed on the assumption that it should apply without squarely confronting the differences between punitive and statutory damages awards. For example, the former is intended as a form of financial punishment for a bad actor. The latter does do the same to some unspecified degree, but it also serves a larger purpose transcending merely the case at hand.

    Finally, opponents of statutory damages awards in the context of P2P cases keep harping that the defendants "only infringed a few works". If this was the total extent of their activities it is almost a certainty lawsuits would never have been initiated. The fact of the matter is that both Tenenbaum and Thomas-Rassert participated in the distribution of hundreds, if not thousands, of files.

  2. Please do not view my comments in any manner suggesting that they are directed to matters I believe you may overlook. Quite the contrary.

    I took a quick look at both Samuelson's recent paper and her comment. I was struck by her many conclusions and assumptions that do not have any factual support in the record of the lawsuits that have proceeded at least as far as the conclusion of discovery. Time and time again she states her opinion that the statutory damages awarded are well in excess of actual damages sustained by the rights holders. Of course, she fails to note that proof of actuals in cases such as these are impossible in those cases where the downloader was a "seeder" and not a "leecher". The former distributes to the world. The latter merely cops a freebie. The former does not lend itself to an actual damages calculation, whereas the latter may permit such a calculation. It seems to me she falls prey to the "It's only $0.99 of Itunes syndrome" as so many seem want to do.

    She also relies quite heavily on a distinction she appears to label "ordinary" versus "wilfull", almost as if those who upload and download via P2P should somehow be treated in a manner markedly different from the current statutory damages provisions.

    Her argument seems to be "Wow, who would have thunk big numbers such as in Tenebaum and Thomas-Rassert would have ever been awarded. Obviously "due process" as a constitutional matter has been eviscerated."

    While the unusually large awards in the above two caes were quite surprising, there are other legal doctrines that do permit the trial judge to make what he/she believes are appropriate adjustments to the awards. Perhaps Samuelson would do well to incorporate such other doctrines into her analysis before issuing her clarion call "OMG, something has to be done!".

    Then again, I should expect no less from one who appears to buy into the kool-aid that seems to be in large supply in the San Francisco area.


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