This makes a lot of sense to me. In fact Nesson advanced the possibility of a judgment re. the constitutionality of huge damages and the judge told him that she'd entertain those arguments after and if damages were awarded.
Per Ben Sheffner:
Judge Gertner previously announced that she will hold a post-trial proceeding to determine whether the size of the award violates the US Constitution’s guarantee of due process of the law. While no federal court has ever invalidated an award of copyright statutory damages as constitutionally excessive, the record labels’ litigation campaign has spurred arguments that the Supreme Court cases imposing limits on punitive damages should be extended to statutory damages, which may contain a punitive element.
Tenenbaum filed a motion to dismiss the plaintiffs’ statutory damages claim on constitutional grounds, but Judge Gertner deferred ruling on the issue unless and until there was actually a damages award handed down by the jury.
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Re: Nesson Setting Up Case for an Appeal
This makes a lot of sense to me. In fact Nesson advanced the possibility of a judgment re. the constitutionality of huge damages and the judge told him that she'd entertain those arguments after and if damages were awarded. Per Ben Sheffner: