> your distinction isn't relevant, because the record company elected statutory damages, thereby eliminating the need to prove an actual damages from "sharing."

a) The plaintiff is not a "record company", it is: SONY BMG Music Entertainment, Warner Bros. Records, Inc., Atlantic Recording Corporation, Arista Records LLC, and UMG Recordings, Inc. If you can't even get the basic facts of the case right, how can you be trusted in your opinion as to whether the damages awarded are constitutional, or anything else regarding the case, for that matter?

b) While it's true that downloading is all that is "needed" for eliciting statutory damages in a case like this (being a form of copyright infringement), it is not true to say that the "distinction" isn't relevant. As you ought to know, the jury is left considerable discretion in its decision of how large to make the damages. The nature of the infringement has an impact on the damages awarded (this wide leeway for statutory damages exists precisely because the impact of copyright infringement is hard to measure and varies widely according to circumstances), so it is ridiculous to claim that Mr. Tenenbaum's sharing of the files had nothing to do with the damages awarded. Just to underscore this point, look at Judge Gertner's order granting the plaintiffs' rule 50 motion on liability:

<snip>4 Judge Nancy Gertner: Electronic ORDER entered with respect to reconsideration of rule 50 motion: The Court has reviewed the transcript of the defendant's testimony, which had not been before the Court at the time of the earlier ruling. The last question asked by Mr. Reynolds on direct examination was Question: "Mr. Tenenbaum, on the stand now, are you now admitting liability for downloading and distributing all 30 sound recordings that are at issue and listed on Exhibits 55 and 56 of the exhibits?" Answer: "Yes." Notwithstanding the protestations of Tenenbaum's counsel, Tenenbaum's statement plainly admits liability on both downloading and distributing, does so in the very language of the statute (no "making available" ambiguity) and does so with respect to each and every sound recording at issue here. Thus, the Court reverses its earlier ruling; Rule 50 motion is granted with respect to infringement. The only issues for the jury are willfulness and damages. (Gertner, Nancy) </snip>

Note that the order specifically mentions "distributing"; not just "downloading". You can find the instructions for the jury at http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Intern... . The nature of the infringement is mentioned in the instructions, as well as the financial impact on the plaintiff. How could sharing the file possibly be irrelevant to this?

Obviously, you shouldn't "trust" my "opinion" at all. It's just an opinion on the internet from someone you never met.

You should, however, think about the underlying issues. Fact is, the plaintiff proved only $0.99 in actual damages per song from Tenenbaum's use and apparently (I write "apparently" because I have not seen the transcripts, just the report I linked to in the post) chose not to present any evidence of actual damages arising from distribution. It's in the court order, but the actual damages (which is the relevant issue for a 'Campbell' due process analysis) proven were solely from his personal use.

Your "hard to measure" argument is a good one, and the one that the RIAA will raise on appeal. Yet, damages in every case are "hard to measure" and that doesn't stop courts from routinely limiting those damages on constitutional grounds. Can Congress grant copyright holders a presumption in court -- without proving anything at all -- that, for each song made available online for any amount of time in any capacity, the defendant suffered up to $15,000 in actual damages? That's not so clear to me. And you haven't said why it's clear to you.

(I chose "$15,000" because it's the only way the statutory $150,000 could be constitutional under the Campbell case's "single-digit" punitive ratio.)

> the plaintiff proved only $0.99 in actual damages per song from Tenenbaum's use and apparently

The plaintiff didn't "prove" "$0.99 in actual damages per song", or any other figure, for that matter. It was in fact the defence that brought in the expert witness who demonstrated downloading the song via AmazonMP3 (this turned out to be counter-productive, because it showed just how easy and cheap it was to behave legally).

Let me say that again: Plaintiffs did not prove any figure for "actual damages", whether $0.99 or otherwise. When asked this specific question by the defence, the plaintiff's experts and witnesses repeatedly stated that it is up to the jury to determine the statutory damages.

You cannot separate the awarded damages into the compensatory and punitive damages, because the jury hasn't given you the information to do so. Therefore your argument on the constitutionality of the compensatory/punitive damage ratio falls apart.

If you think I'm wrong, the right way to proceed at this point is to provide evidence from court materials, not other cases that you think are relevant or your guesses. All the information is freely available, so there's really no excuse for you to be more specific in relation to the facts of the case. In particular, if you can provide me with evidence from court documents that the jury used or was instructed to use a certain figure as the "compensatory damage" figure and told to derive a punitive one on top of that, then you will have proved that you are correct.

Otherwise, you're just another lawyer emitting hot air -- rather like Professor Nesson.

See my reply above. The record companies did indeed prove unauthorized use of the songs by Tenenbaum, and thus the approximately $0.99.

Your "cannot separate" argument completely misses the point: just because Congress lumps compensatory and punitive damages together in one statute doesn't mean constitutional protections don't apply. If that were the case, Congress would easily legislate its way around every Supreme Court ruling by lumping issues together.

Are you arguing there is no punitive element at all to the statutory damages? If so, then why are the damages raised for the exact same conduct if it is "willful?"

> The record companies did indeed prove unauthorized use of the songs by Tenenbaum, and thus the approximately $0.99.

a) "and thus" is a deduction that you form yourself. At no point did the plaintiffs assert this to be their figure for the financial damages resulting from the defendant's actions. If you can find such a statement in the transcripts, please produce it.

b) Even assuming the plaintiffs had made a statement of fact regarding the financial damages wrought by the defendant's unauthorized reproduction of the copyrighted material, there is the significant unknown of the financial damages wrought by the defendant's unauthorized distribution of the material. You conveniently assume that by not providing evidence as to the size of this figure, the plaintiffs, defendants and jury have valued it at zero. This is of course completely wrong.

c) Since the financial damages wrought by the defendant's behaviour is the sum of the financial damages wrought by each individual infraction, and the damage of one of those infractions hasn't been determined by either the plaintiffs or the defendants, and moreover, the jury hasn't provided us with the formula they used to arrive to their value of the damages, we have no way of knowing the punitive/compensatory ratio, and your argument breaks down.

To look at it somewhat differently, supposing the plaintiffs had only filed suit for unauthorized distribution. What happens to your argument then? Answer: depending on how dim-witted you are, you'll either argue that the ratio is infinite or (more sensibly) you'll acknowledge that the ratio is indeterminate, whence one can't draw any conclusions as to its constitutionality.

> Are you arguing there is no punitive element at all to the statutory damages?

Of course not. It is right and proper that there is a punitive element to the statutory damages, simply to deter further unauthorized distribution. All I'm saying is that you're not in a position to say that this quantity is (total damages awarded) - $1.

"You conveniently assume that by not providing evidence as to the size of this figure, the plaintiffs, defendants and jury have valued it at zero."

It's irrelevant what they valued it at: no evidence means no damages. Period. Cases are dismissed every day for failing this fundamental requirement.

But, you say, there's a statute that presumes some level of damages. That's true. What's also true is that the statute authorizes punitive damages, lumped together with actual damages.

That's a problem under recent due process / punitive damages jurisprudence. Per the Campbell case, you cannot have punitive damages that grossly exceed the actual damages. Here, actual damages appear to be a single person's use of 30 songs, yet the jury awarded $675,000. There is, quite obviously, a large punitive element.

You are not in a position to argue these punitives were only a small fraction of the award, since, as noted above, actual damages proven were, at most, $30.

Your argument is that Congress can simply sweep these issues aside, lump them together in a statute, and be done with it.

That's not how constitutional law works.

> It's irrelevant what they valued it at: no evidence means no damages. Period.

...

> That's a problem under recent due process / punitive damages jurisprudence. Per the Campbell case, you cannot have punitive damages that grossly exceed the actual damages.

...

> Your argument is that Congress can simply sweep these issues aside, lump them together in a statute, and be done with it.

> That's not how constitutional law works.

But if we adopt such an uncompromosing position, the maximum possible "constitutional" penalty by your own criteria is surely not more than $5 (for each song).

I submit that your constitutional arguments would lead inexorably to a situation in which it is, in effect, impossible uphold copyright ownership. The deterrent to unauthorized distribution is for all practical purposes removed. Moreover, litigation simply due to the costs, becomes economically irrational, removing the only vehicle of redress for any damages inflicted.

You are, in other words, proposing to use a relatively expansive constitutional interpretation of due process in order to usurp another explicit constituional right, namely that provided by Article I, Section 8, Clause 8: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

I think this stretches constitutional law too far (I would go so far as to say that it makes a mockery of constitutional law -- but, hey, I'm an adherent of originalism). And I would certainly hope and expect that were the supreme court to be presented with such an argument it would reject it as frivolous.

An adherent of "originalism" would have supported Lessig in the Eldred case; your "original" view is at odds with the understanding of copyright at the time of the Constitution, yet oddly consistent with the understanding of copyright by the RIAA and MPAA.

More importantly, your objection is ridiculous. Of course Congress has ample authority to regulate copyright. That doesn't mean unfettered authority to impose excessive punitive damages in civil cases in violation of the due process clause.

You act like a clash of constitutional clauses has never occurred in the history of the Republic. The constitution was designed with "checks and balances," a phrase you may have heard before. The bill of rights (including the due process clause) is a check on the powers of the government (including to regulate copyright).

For all we know those files were deleted by the recipients in which case there is no damage. Normally in a lawsuit where you claim damages you have to prove that those damages actually exist.