Do The Statutory Damages Rates For Copyright Infringement Violate The Eighth Amendment?

from the questions,-questions dept

While we often discuss the rather large conflict between the First Amendment and copyright law in the US, Stephan Kinsella is also wondering if the current statutory damages rates in copyright also violate the Eight Amendment and its prohibition on "excessive fines." I somewhat wonder if that issue will come up in the Jammie Thomas appeal, which will focus heavily on whether or not an award within the statutory damages rates was too high, but I believe the focus there will be more on the Fourteenth Amendment, and whether or not it was a violation of due process. In fact, it seems like most of the Constitutional discussions on statutory rates focuses on the Fourteenth Amendment, rather than the Eighth. I'm certainly not a Constitutional scholar (and would love for legal scholars to chime in here), but I believe this is because the courts historically treat these two amendments as related, and effectively argue that the 8th Amendment's ban on cruel and unusual punishment is applied via the 14th Amendment on due process when it involves state laws. So I'm not entirely clear why it's also being used on a federal copyright issue -- but I'm sure someone out there will help explain it to us in the comments shortly!

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  1. identicon
    Anonymous Coward, 14 Sep 2011 @ 1:31pm

    Re: Re: Re: Re: Common sense.... So damned rare, it's now a superhuman power

    Ok great! You admit that the other people in the sharing network should be held responsible for there infringement. We can use some simple math to quantify exactly how much responsibility each person in the network should bear (on average)
    Lets assume there are X number of people all sharing the same file.
    To get the file one person purchased it, and everyone else downloaded it from some combination of the other people in the network. So we have a total number of downloads equal to x - 1.
    But we are not interested in punishing the download, its the making its the uploading that is the REAL harm, each one of those people could have uploaded the file to 1000's of other people, who in turn could have uploaded it to 1000's more. So lets look at the total number of uploads in the network. How do we do that? Well for every complete upload, there has to be exactly one complete download, so the number of uploads for the entire network is equal to the number of downloads: X - 1.
    So the whole network is responsible for x - 1 uploads. If we divide by the total number of people in the network we will end up with the average amount of sharing each person is responsible for. So each person is responsible for (X - 1) / X copies of the file getting out.
    Lets pretend that one of the files was shared by 1,000,000 people, then each person is responsible for .99999 copies of the file getting out.

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