[QUOTE=Blalron]
It seems clear to me that these statutory damages are intended to be punitive even if they are not labeled as such. I can see no realistic scenerio where they are losing even 100 dollars per song, let alone $9,000. Can Congress simply label it compensatory and the judicial review on excessiveness is foreclosed?
[/QUOTE]
No. The difference between the case you cited (and its predecessors) and the case at hand is that the case you cited deals with the imposition of punitive damages in a common law tort case. In the case at hand, the cause of action is established by law, with damages established within the framework of the statutory scheme.
In common law tort cases, there are few or no guidelines for the award of punitive damages. The ability to award them may be established by statute, but often isn’t. The extent of the damages is not covered by statute, either. There is a body of common law in the tort field that allows for punitive damages in certain types of cases, including fraud and bad faith cases. The trouble, as the Supreme Court noted, is that, without some statutory scheme in place for deciding exactly what the punitive damage liability will be, juries can get out of hand in imposing the “punishment” aspect of the case. So the Court has imposed certain guidelines to be observed in such cases; in the State Farm case, the Court was holding that the Utah courts had failed to follow those guidelines.
In the case under discussion here, the liability is set statutorily. Thus, regardless of whether Congress was intending to compensate or punish, there is no worry that the potential defendants won’t know ahead of time what their potential liability is. The liability isn’t random, set at whim of the jury; it is statutorily set. It may have a fairly large range, but the upper limit is known, and calculatable.
Which isn’t to say that Congress can establish ANY damage imposition it wants in civil cases. I couldn’t, for example, get Congress to allow a civil suit by private parties against people who play car stereos too loudly, in which the statutory damages are $1M - $10M; if Congress tried that we can readily imagine that some due process issues would pop up! :eek: But as a general rule, the Court will grant great deference to Congress on statutory compensation schemes; the days of the application of arbitrarily applied substantive due process review are over.
Which is why it is stupid to try and discuss this case in terms of “stealing.” The basis for copyright protection has nothing to do with “theft.” It has to do with understanding that, if we are going to establish the right to control the copying of a created work, then we have to establish penalties for infringing upon that right of control, regardless of whether or not that infringment results in monetary loss. Copyright law says that, if I create a performance of a song, I get to choose when, how, where, and to what extent it gets reproduced. I can be a total dick about it if I want, and if I am, it doesn’t matter. YOU don’t get to make a copy unless I say you can. End of the discussion (well, not quite, of course, because of fair use, but that’s not really implicated in the case under discussion). Congress has decided, for good or for ill, to allow certain copyright holders to address copyright infringment with rather substantial civil remedies, as the defendant in the current case has discovered. Whether those remedies are intended to be remedy or deterrent doesn’t much matter. State Farm isn’t applicable.
