Monday, August 10, 2009

My Billboard column on statutory damages: the looming constitutional battle

Here's my Billboard column on the looming battle over the constitutionality of large statutory damages awards in the wake of the Thomas-Rasset and Tenenbaum verdicts:
It's been a good summer for the major labels' litigators in their battle against individuals charged with copyright infringement.

In June, a Minnesota jury awarded the four majors $1.9 million in damages, finding that single mom Jammie Thomas-Rasset had used the peer-to-peer file-sharing network Kazaa to illegally download and share 24 songs.

And at the end of July, a federal jury in Boston ordered college student Joel Tenenbaum to pay the majors $675,000 for sharing 30 songs, after hearing evidence that he used at least six different P2P networks for nearly a decade, continuing to infringe even after receiving multiple warnings.

But with the defendants challenging the damage awards and likely appealing the verdicts, these cases are far from over. And the courts will now have to confront a difficult and unresolved question in copyright law: Can awards in cases like this be so big that they violate the U.S. Constitution's guarantee of due process?

Please read the whole thing.


  1. Hard to imagine you chose the headline though.

  2. I did not. I believe that was written by Reuters, which has a deal to re-print Billboard articles.

  3. "...limits on statutory damages would reduce their effectiveness as a club to hold over the heads of alleged infringers, to force them into settlements..."


  4. So whassup with the remittur and con law motions in the Thomas case?

    We haven't heard from Kiwi lately...

  5. @ Anonymous 12:25:

    "...limits on statutory damages would reduce their effectiveness as a club to hold over the heads of alleged infringers, to force them into settlements..."

    So....give me a good reason why this ISN'T a legitimate use of the law?

    Amazing how people fail to see that the law's purpose is deterrence no matter how many cases say it.

  6. @Anonymous 1:54:

    Thomas-Rasset has already filed her motion:

    The labels' opposition is due August 12, and her reply August 19.

  7. @ Anonymous 2:01

    In the event the RIAA misidentifies an IP address account holder as the actual infringing party (when really they are not), the threat of very large statutory damages should not be used "as a club", "to force them into settlements".

    Tens of thousands of settlements. How many of those do you think were paid by actual infringers? Even if it were a very large percentage, say 99%, what of the remaining 1%? Dolphins in the net?

    I don't have a problem with using reasonable statutory damages as a means to punish an infringer found liable or as a deterrent for those contemplating infringement. But threatening alleged infringers with large statutory damages to coerce a settlement? No.

  8. Quick comment:
    "Actual damages compensate copyright owners for their losses stemming from, say, an unearned license fee or royalty, a diminishment in the value of their work or profits earned by an infringer. But actual copyright damages are often difficult or impossible to prove." ... the existence of.

    It wouldn't be that hard. They've done all these studies. You have to wonder why they don't release the data to back them up. I've asked them for it for years, why don't you ask them. Perhaps you can start with the LEK study. You know, the one that had at least one figure off by 300%, or which set a value for UK tax losses 10% lower than a similar UK study said the UK lost in VAT alone over the same period. Lavina Carey, of the British Video Association, and head of the Industry Trust for IP Awareness also strongly discounted the LEK study's accuracy.

    A recent examination of Finnish record sales figures dating back to 1980 showed fairly stable sales figures for the last 15 years. A similar examination of box office figures for the last 12 years shows the same trend. These were using the industry's own figures.

    Let's put it this way. As a lawyer, do ANY industry studies claiming loss reach the level of 'beyond reasonable doubt'. It comes down to an accusation, and the testimony of the alleged victim. There is no evidence, no data to back up the accusations. What would a judge say, if you took a case like that to court, a case with no hard evidence to back the claims? When they won't even release the data for the studies THEY commission, what does that say about it? Says to me it wouldn't withstand scrutiny.

  9. @Ben Jones:

    This was a civil case; "beyond a reasonable doubt" has nothing to do with it. And the plaintiffs did not rely on the LEK study in this case. Their evidence of harm was almost entirely from Dr. Liebowitz; I don't believe the plaintiffs bothered to depose him or ask for any of his data.

  10. Ben, No one is saying this is a criminal case, where beyond reasonable doubt would come into it. I commented, asking your personal opinion. We'll Never know for certain why Nesson chose the defense strategy he did, and anything he says now can and will be coloured with hindsight.

    however, you made statements of loss, and my comment was that such losses have never yet been proven to exist. The data the industries publish does not support their claims, and their claims are left unsupported by any data of their own. Indeed the various industry groups around the world actually discredit each others data and claims with their own studies.

    Now, I'm not a lawyer, I'm an engineer. However, if I had a situation, where every piece of data I had to support a premise contradicted each other, my conclusion can only be that the initial premise is flawed or false. That is my point. It is the reasoning behind scientific progress. The heliocentric model of the solar system supplanted the geocentric model because the data (namely Mars' movements) didn't fit the claimed system (geocentric model). Similarly, the data (the sales records for the industries) do not fit the claimed system (downloading=loss)

    I'll also bet that the testimony does not tie in with any other industry loss claims of the last five years except in the most general and broad manner. The reason I brought up the LEK study, is it's massive headline number, but lack of data and eventual admission of error. However, that study had been repeatedly quoted as fact by members of Congress, and used as the justification for bills. Now, if the premise is wrong, then what should be done about laws that are passed based on a faulty premise?

  11. Ben S.

    Why would the copyright owners *ever* opt for actual damages? Is it leagally easier to win the case when going after actual damages?

    Especially so, like in this case where it seems almost impossible to show any direct relationship between one infringer and lost revenue.


  12. @Randy:

    In some circumstances, the copyright owner is better off electing actual damages. For example, let's say a filmmaker used a popular song in a movie without getting a license. The owner of the song's copyright sues. Because it's only one work at issue, the maximum statutory damages would be $150,000. (Remember, statutory damages are per work infringed, not per infringement.) But assume an expert could testify that the normal license fee for use of the song in a movie would be $500,000. In that case, the copyright owner would usually opt for actual damages.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.