The US government has weighed in on the constitutionality of the $222,000 damage award in Capitol v. Thomas with a brief filed yesterday. The government suggests that the court avoid ruling on the constitutionality of the statutory damages clause of the Copyright Act. Should the court feel the need to rule on the constitutionality, it should find that the damages award does not violate the Due Process Clause of the Constitution.

After a three-day trial, single mother Jammie Thomas was found to have willfully infringed on the record label's copyrights. The jury awarded the RIAA statutory damages of $9,250 per song, for a total of $222,000, out of a maximum of $150,000 per track.

Thomas quickly vowed to appeal the verdict, and when her motion of remittur was filed the following week, she asked for a ruling that the damages handed down by the jury were unconstitutionally excessive. The Copyright Act allows for statutory damages of $750 to $150,000. Thomas argued—as have other defendants—that since the labels make around 70¢ per song, even the $750 damage floor violates the Due Process Clause of the Constitution.

In its reply to Thomas' motion, the RIAA argued that statutory damages need not have any relationship to actual damages. Furthermore, the group said that she had no basis to challenge the constitutionality of the damages since she had not objected to the jury instructions.

The Department of Justice agrees. "This Court may find that defendant has waived her challenge to Congress's statutory damages provision by submitting 'jury instructions and approv[ing] the verdict form that allowed the jury to consider the full range of statutory damages under the Copyright Act," the DoJ argued in its brief.

The DoJ also says that Thomas' motion ignores the fact that statutory damages are given in place of actual damages. "Statutory damages compensate those wronged in areas in which actual damages are hard to quantify in addition to providing deterrence to those inclined to commit a public wrong," argues the DoJ.

It's also impossible for the true damages to be calculated, according to the brief, because it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement. That's significant, because it shows that the DoJ is siding with the RIAA when it comes to the issue of whether making a file available for download on a P2P network constitutes distribution. It was a contentious issue during the Thomas trial, with the jury instructions originally stating that making songs available is not the same as distribution. The RIAA objected to that instruction, and in its final form, all the jury had to do was find that Thomas made the files available.

"[G]iven the findings of copyright infringement in this case, the damages awarded under the Copyright Act’s statutory damages provision did not violate the Due Process Clause; they were not 'so severe and oppressive as to be wholly disproportioned to the offense or obviously unreasonable,'" concludes the DoJ.

Given that Capitol v. Thomas was the first file-sharing lawsuit to go to trial and the fact that statutory damages have become a significant issue in a number of P2P lawsuits, the judge's decision in this case will be very closely watched.