Is there any constitutional limit to the statutoryThe 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 movie The Social Network to make the point that the recording industry has seen better days).
damages that can be imposed for downloading music
online?
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:
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.
And, of course, they claim that this case clearly shows that statutory damages are completely disproportionate:
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.”
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:
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.
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:
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.
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 possible, 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.
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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