Jammie Thomas Asks Supreme Court: How Much Is Too Much For Copyright Infringement?

from the here-we-go dept

Is there any constitutional limit to the statutory damages that can be imposed for downloading music online?

Statutory damages imposed in this way are unpredictable, unconstrained, and equally as punitive as punitive damages; the jury’s role in imposing them is even more divorced from finding facts, from deciding what happened, than it is in imposing punitive damages. The order-of-magnitude difference between the verdicts in this case, $222,000 in the first trial, $1,920,000 in the second trial, and $1,500,000 in the third trial, demonstrates this. The verdicts are unpredictable and, in a deeper sense, arbitrary; they are not tied to any fact or rationale that justifies them, that explains why the law imposes this particular penalty on this particular defendant.

Thomas–Rasset contends that the award of statutory damages against her violates the Due Process Clause because it is tied not to the actual injury that she caused or other features of her conduct, but to the injury caused by file sharing in general. Like punitive damages, statutory damages are imposed not only to compensate the plaintiff, but also to deter the defendant and others from engaging in similar conduct in the future. While this general approach, punishing one offender to deter others, is constitutional within limits, even gross limits of fair retribution for an individual’s conduct, due process limits the extent of the punishment. This Court recognized as much in reviewing awards of statutory damages as early as a century ago.



In Williams, decided in 1919, a railroad challenged statutory damages of “not less than fifty dollars nor more than three hundred dollars” imposed for overcharging two passengers by 66 cents in violation of Arkansas’s regulation of railroad rates. 251 U.S. at 63–64. The railroad argued that such statutory damages “contravene due process of law” because “the penalty is arbitrary and unreasonable, and not proportionate to the actual damages sustained.” ... This Court held that the Due Process Clause “places a limitation upon the power of the states to describe penalties for violations of their laws” and that due process is denied “where the penalty prescribed is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.”

Under Williams and the other early cases, the award of statutory damages in this case is unconstitutional because it is “grossly excessive” and “wholly disproportioned to the offense.”.... $222,000 for 24 songs that would have cost $24 on iTunes is absurd. Nor can $222,000 be justified by the kinds of other features of the offense identified in Williams.

a defendant may be punished for his own similar acts only, Campbell, 538 U.S. at 422–23 (“A defendant’s dissimilar acts, independent from the acts upon which liability was premised, may not serve as the basis for punitive damages. A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business.”), and only for the injury that he inflicted on the particular plaintiff in the case, not for any injuries that he inflicted on nonparties, Phillip Morris USA v. Williams, 549 U.S. 346, 353 (2007) (“the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation”). These cases preserve the civil nature of a case notwithstanding the imposition of a punishment: the case remains between two parties, and the civil punishment must be justified with reference to the acts between those parties, not acts in the world in general.

But lawyers should care about these cases for an entirely different reason: This is not just. It is unfair, it is not due process, for an industry to sue 12,500 people and threaten to sue 5,000 more, wielding a statute for which they lobbied, under which they can threaten hundreds of thousands or millions of dollars in statutory damages, where the only way to resist is through modern, complex, expensive federal process, so that the only reasonable choice is to pay the settlement and be done. That’s extortion, not law. We cannot govern that way.

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Back in September, we wrote about the latest in the Jammie Thomas-Rasset saga, in which an appeals court had ruled that the(of three) district court rulings in her case, in which she was told to pay $9,250 per song was perfectly reasonable . As we noted, this was more or less a procedural thing, in an effort to get to the main event: a challenge on the Constitutionality of ridiculously high statutory damages for copyright. And... that's where we are now. Thomas-Rasset has petitioned the Supreme Court to hear her appeal on exactly that question:The argument, as when it has been brought up earlier, is that such huge fines represent a 5th Amendment due process problem, as the awards simply are so far out of line with any reason. The filing runs through a brief history of the recording industry's fight against file sharing (amusingly quoting from the movieto make the point that the recording industry has seen better days).Thomas-Rasset makes the case that the three different verdicts, with three different crazy amounts from three different juries highlights the problems with today's statutory damages, and how disconnected they are from reality:And it's that arbitrary nature that becomes a Constitutional problem under the 5th Amendment:And, of course, they claim that this case clearly shows that statutory damages are completely disproportionate:There's a lot more in the full filing, but it also takes on things, like the claims that the record labels should be able to get more from Thomas-Rasset, because they have to cover for other files sharers. That doesn't fly:There are a number of legal arguments... and one appeal to emotion, which comes off as a bit weak, though you never know how well some of those might play out:I am skeptical that this will result in a ruling in favor of Thomas-Rasset (even if the Supreme Court grants cert -- which I'd say is, but unlikely). However, perhaps I'll be pleasantly surprised. This is an absolute long shot, especially given a Supreme Court that, while skeptical of patent expansion, has shown a bizarre willingness to let Congress continue to stretch and change and expand copyright law at every turn.

Filed Under: copyright, due process, jammie thomas rasset, statutory damages, supreme court