As the RIAA's legal battle against suspected file-sharers has unfolded, one of the arguments put forth by some defendants is that the statutory damages sought by the RIAA are unconstitutionally excessive. That's one of the defenses articulated by Ray Beckerman, attorney for the defendant in UMG v. Lindor. In a ruling issued yesterday, Judge Robert M. Levy ordered the record labels to provide Marie Lindor with the expenses incurred for each of the 38 songs at issue in the case, writing that Lindor's request may "lead to the discovery of admissible evidence."

The request by Lindor seems innocuous enough. "(A) Set forth all expenses incurred by plaintiffs, per authorized song file download, in connection with the thirty eight (38) songs..., and (B) annex copies of all documents kept in the ordinary course of business of plaintiffs sufficient to support said statement of expenses."

In a court filing last month, the RIAA argued that Lindor's request was unclear and that she already had information sufficient to make a defense that the statutory damages sought by the labels ($750-150,000) are unconstitutional. Most tellingly, the RIAA also says that "they do not have the analysis requested" and could not perform it without "enormous expense" requiring "lengthy and complex analysis."

In Capitol v. Thomas, the only file-sharing case to go to trial so far, Sony BMG head of litigation Jennifer Pariser testified that she had no idea about the extent of the actual damages suffered by the recording industry. "We haven't stopped to calculate the amount of damages we've suffered due to downloading, but that's not what's at issue here," she told Jammie Thomas' attorney during cross-examination.

The jury found that Thomas willfully infringed on the labels' copyrights, awarding them $9,250 in statutory damages for each song. Thomas quickly announced her intention to appeal, and her first step was to ask the judge to slash the damages award. In her notice of remittur, Thomas made the same argument as Lindor, saying that the jury's award was unconstitutionally excessive.

Beckerman has argued that the RIAA's actual damages are in the neighborhood of 70¢ per song, less than 0.1 percent of the minimum statutory damages provided for by the Copyright Act. The RIAA initially fought to keep its wholesale pricing secret, but its lead counsel has since admitted that the 70¢ figure is in the right neighborhood. Beckerman would like to see any damages capped at no more than 10 times the amount of actual damages should infringement be proven.

The RIAA's position is that statutory damages need not be tied to actual damages, and that it's fine with whatever a jury is willing to mete out. The group might also argue that capping damages at 70¢ per song is not appropriate, given that the songs may have been downloaded countless times from the defendant over a P2P network. One potential problem with that argument is that the labels are unable to show any evidence that the songs have been downloaded by anyone other than SafeNet, the company retained by the RIAA to investigate illicit downloading.