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Grossly Excessive Penalties in the Battle Against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement

Grossly Excessive Penalties in the Battle Against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement

Barker, J. Cam , "Grossly Excessive Penalties in the Battle Against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement" . Texas Law Review, Vol. 83, No. 2 83 Texas L. Rev. 525 (2004)

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Abstract

    The recent copyright-infringement lawsuits targeting individual file-sharers have in common the following facts: a statutory damage award with a substantial punitive component, a large number of like-kind violations, and fairly low reprehensibility as assessed under the relevant Supreme Court test. The substantive due process principles laid out by the Court in BMW v. Gore provide a roadmap for evaluating whether the aggregated punitive effect of these awards has become unconstitutionally excessive.

    In this paper, I argue that there is a constitutional right to not have a highly punitive statutory damage award stacked hundreds or thousands of times over for similar, low-reprehensibility misconduct. I point to the rationale behind criminal law's single-larceny doctrine, identify the concept of wholly proportionate reprehensibility, and use this to explain why the massive aggregation of statutory damage awards can violate substantive due process.

    I conclude that massively aggregated awards of even the minimum statutory damages for illegal file-sharing will impose huge penalties and can be constitutionally infirm like the punitive damage award of Gore itself. Yet practical and institutional reasons will likely make this norm underenforced by the courts, pointing to Congress as the actor that should modify copyright law to remove the possibility of grossly excessive punishment.

    Keywords: grossly excessive, substantive due process, BMW, Gore, punitive damages, civil penalties, statutory damages, file sharing, copyright, underenforcement

Facts on copyright

  • Fair use and fair dealing Main articles: fair use and fair dealing Copyright does not prohibit all copying or replication. In the United States, the fair use doctrine, codified by the Copyright Act of 1976 as 17 U.S.C. Section 107, permits some copying and distribution. The statute does not clearly define fair use, but instead gives four non-exclusive factors to consider in a fair use analysis. In the United Kingdom and many other Commonwealth countries, a similar notion of fair dealing was established by the courts or through legislation. The concept is sometimes not well defined, however in Canada, private copying for personal use has been expressly permitted by statute since 1999. In Australia, the fair dealing exceptions under the Copyright Act 1968 (Cth) are a limited set of circumstances under which copyright material can be legally copied or adapted without the copyright holder's consent. Other technical exemptions from infringement may also apply, such as the temporary reproduction of a work in information technology.
  • The first-sale doctrine is known as exhaustion of rights in other countries and is a principle which applies to other intellectual property rights. In addition, copyright, in most cases, does not prohibit one from acts such as modifying, defacing, or destroying his or her own legitimately obtained copies of copyrighted works, so long as duplication is not involved. However, in countries that implement moral rights, a copyright holder can in some cases successfully prevent the mutilation or destruction of a work that is publicly visible.
  • Copyright (international symbol: ) is a set of exclusive rights granted by governments to regulate the use of a particular expression of an idea or information. At its most general, it is literally "the right to copy" an original creation. In most cases, these rights are of limited duration.

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