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"You conveniently assume that by not providing evidence as to the size of this figure, the plaintiffs, defendants and jury have valued it at zero." It's irrele

"You conveniently assume that by not providing evidence as to the size of this figure, the plaintiffs, defendants and jury have valued it at zero." It's irrelevant what they valued it at: no evidence means no damages. Period. Cases are dismissed every day for failing this fundamental requirement. But, you say, there's a statute that presumes some level of damages. That's true. What's also true is that the statute authorizes punitive damages, lumped together with actual damages. That's a problem under recent due process / punitive damages jurisprudence. Per the Campbell case, you cannot have punitive damages that grossly exceed the actual damages. Here, actual damages appear to be a single person's use of 30 songs, yet the jury awarded $675,000. There is, quite obviously, a large punitive element. You are not in a position to argue these punitives were only a small fraction of the award, since, as noted above, actual damages proven were, at most, $30. Your argument is that Congress can simply sweep these issues aside, lump them together in a statute, and be done with it. That's not how constitutional law works.

seertaak 17y ago
> It's irrelevant what they valued it at: no evidence means no damages. Period. ... > That's a problem under recent due process / punitive damages jurisprudence. Per the Campbell case, you cannot have punitive damages that grossly exceed the actual damages. ... > Your argument is that Congress can simply sweep these issues aside, lump them together in a statute, and be done with it. > That's not how constitutional law works. But if we adopt such an uncompromosing position, the maximum possible "constitutional" penalty by your own criteria is surely not more than $5 (for each song). I submit that your constitutional arguments would lead inexorably to a situation in which it is, in effect, impossible uphold copyright ownership. The deterrent to unauthorized distribution is for all practical purposes removed. Moreover, litigation simply due to the costs, becomes economically irrational, removing the only vehicle of redress for any damages inflicted. You are, in other words, proposing to use a relatively expansive constitutional interpretation of due process in order to usurp another explicit constituional right, namely that provided by Article I, Section 8, Clause 8: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." I think this stretches constitutional law too far (I would go so far as to say that it makes a mockery of constitutional law -- but, hey, I'm an adherent of originalism). And I would certainly hope and expect that were the supreme court to be presented with such an argument it would reject it as frivolous.
- MaxwellKennerly 17y ago
  An adherent of "originalism" would have supported Lessig in the Eldred case; your "original" view is at odds with the understanding of copyright at the time of the Constitution, yet oddly consistent with the understanding of copyright by the RIAA and MPAA. More importantly, your objection is ridiculous. Of course Congress has ample authority to regulate copyright. That doesn't mean unfettered authority to impose excessive punitive damages in civil cases in violation of the due process clause. You act like a clash of constitutional clauses has never occurred in the history of the Republic. The constitution was designed with "checks and balances," a phrase you may have heard before. The bill of rights (including the due process clause) is a check on the powers of the government (including to regulate copyright).

seertaak 17y ago

> It's irrelevant what they valued it at: no evidence means no damages. Period. ... > That's a problem under recent due process / punitive damages jurisprudence. Per the Campbell case, you cannot have punitive damages that grossly exceed the actual damages. ... > Your argument is that Congress can simply sweep these issues aside, lump them together in a statute, and be done with it. > That's not how constitutional law works. But if we adopt such an uncompromosing position, the maximum possible "constitutional" penalty by your own criteria is surely not more than $5 (for each song). I submit that your constitutional arguments would lead inexorably to a situation in which it is, in effect, impossible uphold copyright ownership. The deterrent to unauthorized distribution is for all practical purposes removed. Moreover, litigation simply due to the costs, becomes economically irrational, removing the only vehicle of redress for any damages inflicted. You are, in other words, proposing to use a relatively expansive constitutional interpretation of due process in order to usurp another explicit constituional right, namely that provided by Article I, Section 8, Clause 8: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." I think this stretches constitutional law too far (I would go so far as to say that it makes a mockery of constitutional law -- but, hey, I'm an adherent of originalism). And I would certainly hope and expect that were the supreme court to be presented with such an argument it would reject it as frivolous.

MaxwellKennerly 17y ago
An adherent of "originalism" would have supported Lessig in the Eldred case; your "original" view is at odds with the understanding of copyright at the time of the Constitution, yet oddly consistent with the understanding of copyright by the RIAA and MPAA. More importantly, your objection is ridiculous. Of course Congress has ample authority to regulate copyright. That doesn't mean unfettered authority to impose excessive punitive damages in civil cases in violation of the due process clause. You act like a clash of constitutional clauses has never occurred in the history of the Republic. The constitution was designed with "checks and balances," a phrase you may have heard before. The bill of rights (including the due process clause) is a check on the powers of the government (including to regulate copyright).