I've been keeping tabs on several of these cases as of late. I found something interesting (via Ray Beckerman at RecordingIndustryVsthepeople) in the Sony BMG v Tenenbaum pre-trial.
"The Defendant argues that the statutory damages authorized by the Copyright Act, 17
U.S.C. ยง 504(c) -- which range from $750 to $150,000 per infringement -- far outstrip the actual
damages incurred by the Plaintiffs and are therefore unconstitutionally excessive and punitive in
nature. Accordingly, he asks the Court to dismiss this lawsuit. Yet all the parties appear to agree
that, under the doctrine of constitutional avoidance, courts should refrain from deciding
constitutional questions until it is plainly necessary to do so. See Lyng v. Northwest Indian
Cemetery Protective Ass'n, 485 U.S. 439, 445 (1988). In light of this principle, together with the
substantial practical difficulties of comparing actual and statutory damages without a factual
record, the Court will decide this constitutional question only if and when a jury awards damages
against Joel Tenenbaum. The due process challenge is deferred until that time." Order Filed July 15 2009 by Judge Getner .
It seems that the best chance of finding these damages unconstitutional is right now. Judge Getner stated that she would not rule on the issue until possible damages had been assessed by a jury. Now that this has happened in the Thomas case, perhaps her legal team is mounting an argument to that extent.
It also seems plausible that the RIAA tries to settle most of these cases even after a judgment has been awarded to avoid certain constitutionality arguments by the defense. You can pretty much guarantee that Prof. Neilson and Tenenbaum's defense will mount that argument should damages be awarded against him. Lets hope that Jamie has the courage and tenacity to remain standing in this fight and take it as far as need be to defend our rights.
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Constitutional Challenge
"The Defendant argues that the statutory damages authorized by the Copyright Act, 17
U.S.C. ยง 504(c) -- which range from $750 to $150,000 per infringement -- far outstrip the actual
damages incurred by the Plaintiffs and are therefore unconstitutionally excessive and punitive in
nature. Accordingly, he asks the Court to dismiss this lawsuit. Yet all the parties appear to agree
that, under the doctrine of constitutional avoidance, courts should refrain from deciding
constitutional questions until it is plainly necessary to do so. See Lyng v. Northwest Indian
Cemetery Protective Ass'n, 485 U.S. 439, 445 (1988). In light of this principle, together with the
substantial practical difficulties of comparing actual and statutory damages without a factual
record, the Court will decide this constitutional question only if and when a jury awards damages
against Joel Tenenbaum. The due process challenge is deferred until that time." Order Filed July 15 2009 by Judge Getner .
It seems that the best chance of finding these damages unconstitutional is right now. Judge Getner stated that she would not rule on the issue until possible damages had been assessed by a jury. Now that this has happened in the Thomas case, perhaps her legal team is mounting an argument to that extent.
It also seems plausible that the RIAA tries to settle most of these cases even after a judgment has been awarded to avoid certain constitutionality arguments by the defense. You can pretty much guarantee that Prof. Neilson and Tenenbaum's defense will mount that argument should damages be awarded against him. Lets hope that Jamie has the courage and tenacity to remain standing in this fight and take it as far as need be to defend our rights.
Techdirt has not posted any stories submitted by imbmiller.
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