[Infowarrior] - Texas Law Review Paper on constititutionality of RIAA damages in file-sharing

[Richard Forno]

Abstract:     

The recent copyright-infringement lawsuits targeting individual file-sharers
have in common the following facts: a statutory damage award with a
substantial punitive component, a large number of like-kind violations, and
fairly low reprehensibility as assessed under the relevant Supreme Court
test. The substantive due process principles laid out by the Court in BMW v.
Gore provide a roadmap for evaluating whether the aggregated punitive effect
of these awards has become unconstitutionally excessive.

In this paper, I argue that there is a constitutional right to not have a
highly punitive statutory damage award stacked hundreds or thousands of
times over for similar, low-reprehensibility misconduct. I point to the
rationale behind criminal law's single-larceny doctrine, identify the
concept of wholly proportionate reprehensibility, and use this to explain
why the massive aggregation of statutory damage awards can violate
substantive due process.

I conclude that massively aggregated awards of even the minimum statutory
damages for illegal file-sharing will impose huge penalties and can be
constitutionally infirm like the punitive damage award of Gore itself. Yet
practical and institutional reasons will likely make this norm underenforced
by the courts, pointing to Congress as the actor that should modify
copyright law to remove the possibility of grossly excessive punishment.


link:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=660601