Calling the Eighth Amendment

Music downloaders, beware: a jury has determined that a 32-year-old Minnesota woman violated the copyrights on 24 songs owned by four major record labels, and it returned a verdict for the labels in the amount of $1.92 million. That's about $80,000 per illegallly downloaded song. That's even though each downloaded song could have been purchased legally for $1.

The copyright statute authorizes "statutory damages" (i.e., damages that may be unrelated to a plaintiff's actual damages) in any amount between $750 and $30,000 per copyright violated that the court considers just, and in cases where the violation was wilful, the amount may be increased to up to $150,000. So the amount, incredible as it is, is within the statutory limits (wilfulness was apparently proved). The statute does make it seem as though the court, not the jury, sets statutory damages, so I'm a little surprised that the jury is involved here, but I'm not really familiar with the practice on this point.

In any event, even allowing for the need to impose a penalty that goes beyond the actual damages suffered and that will provide an appropriate deterrent to illegal behavior, clearly this verdict is ridiculous. Indeed, off the top of my head I'd be inclined to say that it's a case for application of the Eighth Amendment, which prohibits the imposition of "excessive fines." The Supreme Court has held that this amendment does not apply to damages in a civil suit between private parties, but it has constrained punitive damages using the Due Process Clause, and here statutory damages are serving a similar function.

But first I would apply the statutory copyright provision that the statutory damages should be such damages "as the court considers just." The defendant is liable for more than $24 and should pay an amount that would appropriately deter illegal music downloading. But I think about $10,000 or $15,000 would amply serve that purpose (defendants have apparently been settling for $3,000-5,000, so the fine imposed after trial needs to be more than that). $1.9 million is absurd.

Update: A little research (actually I asked a colleague, but that's part of research!) reveals that in 1998 the Supreme Court held that the Seventh Amendment right of jury trial includes the right to have the jury determine the amount of statutory damages in copyright cases. So that's why a jury verdict was involved. But presumably the court could still apply any constitutional constraint on the amount of damages awarded.