Obama Administration: $1.5 Million For Sharing 24 Songs Is Perfectly Reasonable
from the out-of-touch dept
In the latest round of the fight over how much Jammie Thomas-Rasset should pay for sharing 24 songs online, we have the federal government weighing in to say that $1.5 million for those 24 songs is perfectly reasonable and Constitutional. Must help that the White House Solicitor General was previously a litigator for the RIAA in the case, huh (though, he did not write the filing)?
If you don’t recall, there are statutory rates for copyright infringement, which are ridiculously high, and it seems reasonable to question if those awards, which seem totally disproportionate to any “damages,” could be seen as excessive under the Constitution.
The district court judge, Michael Davis, clearly felt so. Ditto Judge Nancy Gertner in the Joel Tenenbaum case. However, the government apparently is going to argue that the statutory rate is the statutory rate and we must respect that. The argument is basically the same behind the implementation for statutory rates in the first place. To paraphrase: “man, it’s freaking hard to have to show actual damages (since there might not be any) and thus we shouldn’t have to do that — but should just be able to use these crazy high numbers.” This argument seems silly frankly. It’s basically saying that even if you could look at damages, you should never have to. That’s a big part of the problem. It leads to cases like this where people are heavily pressured to settle just to avoid the risk of crazy high statutory damages.
But where the government’s argument goes off the rails, is the idea that when it comes to statutory damages, there’s never a due process question over whether the rates are excessive. That makes no sense, but it’s the argument being made:
Contrary to defendant’s contentions, the Due Process Clause does not require that the statutory damage award be proportional to the actual harm defendant has caused the plaintiff. Defendant attempts to derive this rule from BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). But as the district court held, Williams, not Gore, establishes the applicable framework for determining whether an award of statutory damages under the Copyright Act comports with due process.
Gore is inapposite. It imposes limitations on a jury’s authority to award punitive damages in circumstances where the legislature has not constrained the jury’s discretion. It thus requires that the jury award not be grossly disproportionate to the plaintiff’s injury or defendant’s misconduct. Absent such limitations, the Gore Court reasoned, defendants could not have fair, constitutionally sufficient notice of the magnitude of potential sanctions.
The Gore framework, however, does not apply to a statutory regime in which Congress has specified in advance the range of appropriate damages. In that circumstance, the statute itself supplies the constitutionally required notice deemed missing in Gore. Moreover, unlike jury awards of punitive damages, an award of statutory damages is based on legislative judgments that must be accorded deference by the reviewing court. Williams, not Gore, sets forth the appropriate standards for conducting such review.
To summarize this argument, it’s that Congress can do whatever the hell it wants in setting statutory rates, and no one can ever question if those rates are “excessive.” Effectively, it’s saying that Congress doesn’t have to obey the Constitution. That makes no sense. And yes, it relies on this Supreme Court ruling from 1919, which is a pretty narrow ruling, concerning conditions under which you could measure such regulatory fines against the due process clause. However, this argument really tries to make that case do a hell of a lot more than it was designed to do — while also trying to pretend that a whole series of other cases involving excessive fines as they relate to due process don’t matter.
Either way, the end result is that the administration is effectively saying that a $1.5 million award for sharing 24 songs isn’t just perfectly legal and reasonable, but that it’s what Congress intended. All it really does is reiterate just how out of touch the White House is to reality.