The statutory damages provision of the Copyright Act violates the Due Process Clause of the U.S. Constitution, according to a petition for a writ of certiorari filed Dec. 10 (Thomas-Rasset v. Capitol Records Inc., U.S., Docket No. unavailable, review sought 12/10/12).
The petition appeals a ruling by the U.S. Court of Appeals for the Eighth Circuit holding that the Due Process Clause does not bar a statutory award by a jury of $9,250 for each of 24 songs. Capitol Records Inc. v. Thomas-Rasset, 692 F.3d 899, 104 USPQ2d 1063 (8th Cir. 2012) (177 PTD, 9/13/12).
Is there a constitutional limit to the statutory damages that can be imposed for downloading music online?
The case originated when several record companies sued Jammie Thomas-Rasset, alleging willful copyright infringement. They alleged that she made available unauthorized copies of sound recordings through the Kazaa file-sharing system.
A jury found in favor of the copyright holders and awarded damages totaling $222,000. A new trial was ordered, based on a finding of an erroneous jury instruction. The district court found that merely making files available on the internet did not amount to unauthorized distribution of copyrighted works.
After a third trial, a jury awarded $1.5 million in damages (215 PTD, 11/9/10), but the court reduced the award to $2,250 a song (144 PTD, 7/27/11). The Eighth Circuit held that the court had erred in capping the damages at $2,250 and held that the $222,000 award was not unconstitutional (177 PTD, 9/13/12).
The petition argued that the true measure of actual harm to the recording industry is not what licensing income might have been obtainable had unauthorized music not been made available for free on the internet, but rather what the value of such licenses might be in the face of the availability free, unauthorized copies.
In a footnote, the petition underscored this point by quoting several lines of dialogue from a scene in the 2010 film The Social Network, in which a character based on the creator of the Napster file-sharing service boasted of destroying the retail music business even though he lost his case in court.
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.
According to the petition, the Copyright Act is defective in that it does not provide for abuse-of-discretion-type review of such an award, and it does not permit an award below the statutory minimum, even if such an award might be more just.
The due process violation lay in the fact that the penalty imposed upon Thomas-Rasset amounted not to a redress for her personal infingement of copyrights, but for the effect on the entire music industry caused by peer-to-peer file-sharing globally.
“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,” the petition said.
Thomas-Rasset was represented by K.A.D. Camara of Camara & Sibley, Houston.
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