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 @ 8:58am

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

    Two things.

    First off, they aren't fines. Fines apply only to criminal cases brought by the state. These are settlements, judgements, or the like. They are not fines and this has significant legal implications.

    As for the "commercial scale", consider this:

    A single set of licenses, shared online, got used more than 3/4 of a million times. Now, compare that to your "commercial" pirate working at a flea market selling a couple of hundred knock off DVDs, and you start to see the problem. Online, a single seeding of a file can lead to an incredibly huge number of illegal copies being made, and as such, represents a larger issue than almost any commercial infringer.

    Common sense man, the flea market guy has a few hundred potential customers, online you have the world's online population. Which one has bigger potential for causing problems?

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