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$1.9 Million Award In Thomas Case Raises Constitutional Questions
Techdirt points out that the EFF is examining the constitutionality of the recent $1.9 million verdict awarded in favor of the RIAA against Jammie Thomas. While on the surface it may seem that this excessive award should be easy to overturn since grossly excessive punitive damage awards are considered to violate the Due Process clause of the US Constitution, the Supreme Court seems to have been ignoring precedent and upholding copyright's importance at any cost. "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 US 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 $1.92 million award for sharing 24 songs cross the line into 'grossly excessive?' And do these Due Process limitations apply differently to statutory damages than to punitive damages? These are questions that the court will have to decide if the issue is raised by Ms. Thomas-Rasset's attorneys."
When it's large damages against a company the Supremes know it's not good. But statutory damages to an individual that lines the pockets of business, that's great! (For 5 of 9 anyways). Summary: businesses good, people bad.
Terrorist, bomb, al Qaeda, nuclear, yellowcake, kill, assassinate. Carnivore is dead... long live Echelon.
The question is not whether or not she downloaded the songs, it should be whether or not she did it with the intent of providing the same to others. I could support damages equal to the market value (plus reasonable punitive damages) of what she obtained iff (sic) she didn't upload anything but to suggest that this woman is even in the same league as someone who sells thousands of copied CDs is just silly. A common belief here is that the jury came down hard on her because she lied in court, but isn't perjury a criminal matter and shouldn't it have no bearing on the damages levied against her for a few dozen MP3s?
If God forks the Universe every time you roll a die, he'd better have a damned good memory.
I wonder myself whether the defense DELIBERATELY anticipated a huge defeat in not refuting evidence or calling expert witnesses,
all in an attempt to "shoot the moon" and get unreasonably high damages awarded which would, as it happened, stir controversy and
undermine the RIAA in future venues up the court chain. Thomas was certainly painted as a victim in media coverage, (rightly so, yes)
and the idea that ANY song is worth 80,000$ for being stolen in ANY form is pretty ludicrous and now widely acknowledged as such.
Speaking as a Brit, I have to ask...
What the hell happened to that former colony ours that fought for freedom and began a war of independence over unfair taxation?
I am TheRaven on Soylent News
The RIAA has been making very telling statements after the verdict.
Yes, it's amusing. They're being quite defensive about it. They've been caught with with their greedy pants down.
Ray Beckerman +5 Insightful
I am a lawyer.
The EFF is going to run out of rope really fast. BMW v. Gore said it was about factors, but it was really about notice. Could BMW really expect such a dramatically large punitive-damages award? Maybe not, for the conduct alleged. Here, legally speaking, Jammie had notice: there was a statute putting her on notice of the fact that a jury could award these damages if it wanted.
Anyway, with the Court's current composition, arguing that BMW v. Gore should be expanded to statutory damages is a non-starter. That opinion barely made it through as it was. Just look at the dissents--Ginsberg, joined by Rehnquist? The Court's only gotten more government-friendly since then.
I don't know much adjudicatory criminal procedure; maybe the 8th Amendment is the way to go.
This verdict is a simple reflection of the fact that the jury has no
sense of perspective on this matter. They probably just pulled a number
out of their collective posteriors. You probably had some crying for
blood advocating the full amount and others advocating the minimum
amount. The foreman probably split down the middle and probably didn't
even bother to AVERAGE the proposed amounts.
Can you relate to 2 million dollars? Do you think the average jurist can?
Do you think the average American can?
So, Minnesotans think that running a P2P app with some music on it rates 50% the maximum penalty.
It makes you wonder what they think merits the minimum or the maximum.
Mebbe the 200x range of damages spelled out in the law just demonstrates how bogus it is.
A Pirate and a Puritan look the same on a balance sheet.
Indeed, but its that way for a reason.
The original intent of statutory damages was 2 fold:
1. To ensure that the infringer does not do it again, and to send a message to other potential infringers, that this behaviour will not be tolerated.
2. To punish commercial infringers for any infringements they may have done that could not be accounted for through actual losses.
It's obvious from the plain evidence in this case that she is not a commercial infringer, and never intended to re-sell the 24 songs, which leaves the other option: To send a message.
I'm pretty sure everyone can agree that $80,000 is insane damages for a single song. So then, in a range of $750 to $150,000, what *IS* fair?
The evidence seems to say that she is guilty, and thus should be held accountable. Actual damages would not send the message that the industry wants to send, but at the same time, ridiculously high damages seems to have the same effect.
Is $750 acceptible? For a total damage award of $18,000? The question is not "Could she reasonably pay the damages?", because the law doesn't care if you can pay it. The question is "How much would make a reasonable deterrent for future infringers?".
Unfortunately, these days, I believe the problem is already out of control, and no amount of damages, reasonable or not, would serve to deter future infringement. Indeed, the same person, after resolving all these issues, being left penniless and bankrupt, is likely to learn from these mistakes and use an encrypted client in the future, and simply download all their music in the future.
Punishing an avid music collector (it's reported that she actually *owns* 200+ cd's) over 24 downloaded songs seems to me to betray all of your future customers.
I don't honestly think theres any way the recording industry can drive this mess for a positive outcome for them. They'll never get the money from *any* damage award, and they're reputation is irreversibly and forever scarred by this lawsuit campaign.
Thomas A. Knight
Author of The Time Weaver