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I'm the author of the article. Let me clarify (this is hinted at with the asterisk footnote at the bottom of the post) what happened here: the record company el

I'm the author of the article. Let me clarify (this is hinted at with the asterisk footnote at the bottom of the post) what happened here: the record company elected, under the copyright statute, not to prove any actual damages and instead use "statutory damages." At that point, they didn't need to prove anything at all other than "infringement," which would include his own use of the music and of his making them available to others, regardless of how much infringement there really was. That's part of what's so preposterous about our copyright regime: it permits copyright holders to elect, at their discretion, to pursue an amorphous claim with fantastically huge damages that doesn't require they prove much. It's like if a slip and fall plaintiff could elect "statutory damages" of millions of dollars if they proved nothing more than that the defendant spilled something on the floor. Such would be swiftly declared unconstitutional.

seertaak 17y ago
> At that point, they didn't need to prove anything at all other than "infringement," which would include his own use of the music and of his making them available to others, regardless of how much infringement there really was. Your logic is wrong. While it is true that all the plaintiffs needed was unauthorized reproduction, that doesn't mean that finding additional infringements won't cause a jury to award higher statutory damages: indeed, the jury is specifically instructed to take into account the nature of the infringements.
- MaxwellKennerly 17y ago
  See my response to you below. You're confusing multiple issues. For purposes of my discussion about the constitutionally-permissible compensatory-to-punitive ratio, the sole question is what actual damages were proven. At trial, the defendants only proved $0.99 actual damages for each song. Your argument about other unproven damages has already been rejected by the 'Philip Morris' Supreme Court case, which explicitly said jurors could only consider, when deciding on punitive damages, actual damages proven in court. (In that case, the jurors had considered damage to other smokers in the state who weren't plaintiffs in the actual case.)
  - seertaak 17y ago
    > At trial, the defendants only proved $0.99 actual damages for each song. I suspect you mean the plaintiffs. In any case, it really doesn't matter; the damages in this case are not separable into punitive and compensatory parts. You can argue that this is unconstitional, but you can't argue that that damages awarded are unconstitutional on the basis of your or the defendant's estimate of the compensatory damages, seeing as those aren't what the jury used in their determination of damages. So your $0.99 "actual damages" is a red herring. Had there been more of an onus on the record companies to provide more evidence of actual damages, they would almost surely have been able to provide at least rough estimates, using studies that were cited in the expert testimony of Stanley Liebowitz. There was however, no onus to do so, so it was reasonable for the plaintiffs not to go in greater detail here. > Your argument about other unproven damages What argument about "unproven damages"? I have not used that language, please don't put words in my mouth. It's fine for you to quote me; please don't misparaphrase me.
    - MaxwellKennerly 17y ago
      I was referring to the unproven damages you wrote about above, the unproven distribution damages. Fact is, at trial, the only actual damages proven was the unauthorized personal use of a $0.99 song. "Had there been more of an onus on the record companies to provide more evidence of actual damages, they would almost surely have been able to provide at least rough estimates ..." Yet, it looks like they didn't, likely because they would have been much, much lower than the $150,000 per infringement available under the statute, and they wanted the jury to think big numbers. It was a tactical gamble, the same type made daily in trials across the country. Like I wrote in the post, Congress can't simply call a duck a goose and get around the due process protections established by the Gore, Philip Morris, and Campbell cases. The statute's language does not trump due process and the fundamental fact that we have actual damages proven at trial (~$0.99 per song) and a grossly excessive award ($22,500.00 per song) awarded by way of a punitive element ("willful"). They are "punitive" damages by any measure. That undoubtedly triggers due process protections.
      - seertaak 17y ago
fatdog789 17y ago
You clearly don't understand what statutory damages are. Statutory damages are not punitive damages. Statutory damages are compensatory damages, for when calculation of actual harm is impossible or practically so, though harm clearly exists. Here -- it's clear that the record company lost some money from the defendant's file sharing eating into sales, but how much? Statutory damages are the only compensatory damages that are allowed to account for the legal costs of pursuing action. Attorney's fees are not awarded as part of compensatory damages, and are usually are only available for intentional torts. Finally, Statutory damages are in lieu of all other compensatory damages, and judges will rarely if ever grant punitive damages alongside a statutory election. In response to your arguments above: Philip Morris is a punitive ("make an example of") damages case. It only applies to punitive damages. It does not apply to compensatory damages.
- MaxwellKennerly 17y ago
  See my response above. "Statutory" does not equal "solely compensatory," particularly not where the statute includes a punitive element for "willful" conduct.

seertaak 17y ago

> At that point, they didn't need to prove anything at all other than "infringement," which would include his own use of the music and of his making them available to others, regardless of how much infringement there really was. Your logic is wrong. While it is true that all the plaintiffs needed was unauthorized reproduction, that doesn't mean that finding additional infringements won't cause a jury to award higher statutory damages: indeed, the jury is specifically instructed to take into account the nature of the infringements.

MaxwellKennerly 17y ago
See my response to you below. You're confusing multiple issues. For purposes of my discussion about the constitutionally-permissible compensatory-to-punitive ratio, the sole question is what actual damages were proven. At trial, the defendants only proved $0.99 actual damages for each song. Your argument about other unproven damages has already been rejected by the 'Philip Morris' Supreme Court case, which explicitly said jurors could only consider, when deciding on punitive damages, actual damages proven in court. (In that case, the jurors had considered damage to other smokers in the state who weren't plaintiffs in the actual case.)
- seertaak 17y ago
  > At trial, the defendants only proved $0.99 actual damages for each song. I suspect you mean the plaintiffs. In any case, it really doesn't matter; the damages in this case are not separable into punitive and compensatory parts. You can argue that this is unconstitional, but you can't argue that that damages awarded are unconstitutional on the basis of your or the defendant's estimate of the compensatory damages, seeing as those aren't what the jury used in their determination of damages. So your $0.99 "actual damages" is a red herring. Had there been more of an onus on the record companies to provide more evidence of actual damages, they would almost surely have been able to provide at least rough estimates, using studies that were cited in the expert testimony of Stanley Liebowitz. There was however, no onus to do so, so it was reasonable for the plaintiffs not to go in greater detail here. > Your argument about other unproven damages What argument about "unproven damages"? I have not used that language, please don't put words in my mouth. It's fine for you to quote me; please don't misparaphrase me.
  - MaxwellKennerly 17y ago
    I was referring to the unproven damages you wrote about above, the unproven distribution damages. Fact is, at trial, the only actual damages proven was the unauthorized personal use of a $0.99 song. "Had there been more of an onus on the record companies to provide more evidence of actual damages, they would almost surely have been able to provide at least rough estimates ..." Yet, it looks like they didn't, likely because they would have been much, much lower than the $150,000 per infringement available under the statute, and they wanted the jury to think big numbers. It was a tactical gamble, the same type made daily in trials across the country. Like I wrote in the post, Congress can't simply call a duck a goose and get around the due process protections established by the Gore, Philip Morris, and Campbell cases. The statute's language does not trump due process and the fundamental fact that we have actual damages proven at trial (~$0.99 per song) and a grossly excessive award ($22,500.00 per song) awarded by way of a punitive element ("willful"). They are "punitive" damages by any measure. That undoubtedly triggers due process protections.
    - seertaak 17y ago

fatdog789 17y ago

You clearly don't understand what statutory damages are. Statutory damages are not punitive damages. Statutory damages are compensatory damages, for when calculation of actual harm is impossible or practically so, though harm clearly exists. Here -- it's clear that the record company lost some money from the defendant's file sharing eating into sales, but how much? Statutory damages are the only compensatory damages that are allowed to account for the legal costs of pursuing action. Attorney's fees are not awarded as part of compensatory damages, and are usually are only available for intentional torts. Finally, Statutory damages are in lieu of all other compensatory damages, and judges will rarely if ever grant punitive damages alongside a statutory election. In response to your arguments above: Philip Morris is a punitive ("make an example of") damages case. It only applies to punitive damages. It does not apply to compensatory damages.

MaxwellKennerly 17y ago
See my response above. "Statutory" does not equal "solely compensatory," particularly not where the statute includes a punitive element for "willful" conduct.