PENNumbra, the University of Pennsylvania Law Review’s ezine, has published a point-counterpoint by Pamela Samuelson and Ben Sheffner on whether the recent peer-to-peer statutory damages awards violate the Due Process clause of the Constitution, as interpreted in BMW v. Gore. Readers here may recognize Pamela Samuelson from her article with Tara Wheatland, Statutory Damages in Copyright Law: A Remedy in Need of Reform, and Ben Sheffner from his blog Copyrights and Campaigns.
I’d be remiss if I didn’t mention the form of the essays: Both run under two thousand words and remind me of some of the delightfully short writings found in some European IP journals. PENNumbra is a forum that, in this case, offers a nice middle-ground between full length journal essay and blog post.
Some clips from the series:
Samuelson said:
The only plausible explanation for the outlandishly large jury awards against Thomas-Rasset and Tenenbaum was the jury’s desire to punish them for the sins of all file sharers at the direct or indirect urging of the recording industry plaintiffs. See Pamela Samuelson & Tara Wheatland, Statutory Damages in Copyright Law: A Remedy in Need of Reform, 51 Wm. & Mary L. Rev. (forthcoming 2009) (manuscript pt. I-B), available at http://ssrn.com/abstract=1375604 (explaining that courts and commentators are increasingly recognizing that statutory damage awards, especially at the high end of the range, are punitive in intent and punitive in effect). Under the Supreme Court’s due process jurisprudence, juries seem to be punishing these individuals for the acts of millions of other file sharers who are “strangers to the litigation” on behalf of copyright owners who are also “strangers to the litigation” as to copyrighted works that are not before the court. Williams, 127 S. Ct. at 1063 (“[T]he Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation.”). Because there are insufficient constraints on jury awards of statutory damages, courts should draw upon the Court’s due process jurisprudence by reducing grossly excessive statutory damage awards in peer-to-peer music file-sharing cases either to the $750 minimum, which seems to have become the norm in the reported cases, or to something much closer to the minimum. See, e.g., Cooper Indus. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001) (directing de novo review of excessive jury awards).
Sheffner said:
. . . Gore guideposts two and three don’t work at all with copyright statutory damages. In many copyright cases (Thomas-Rasset and Tenenbaum included), it is impossible to compare actual to statutory damages because, as noted above, it is difficult or impossible to measure actual damages. Indeed, statutory damages exist in part to relieve copyright owners of the burden of proving up actual damages where, as a practical matter, they cannot. See F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 231 (1952). And it makes no sense to speak of comparing the actual damages with “the civil or criminal penalties that could be imposed for comparable misconduct,” Gore, 517 U.S. at 583; statutory damages are the “civil… penalties” that Congress has chosen to impose on copyright infringers. If we’re going to debate the constitutionality of statutory damages, we’re going to have to do so under the much more deferential standard set forth in St. Louis, Iron Mountain & Southern Railway v. Williams, 251 U.S. 63 (1919)—under which, as far as I am aware, no award has ever been invalidated.
Reasonable people can disagree over the proper amount of statutory damages for individual non-profit infringers like Thomas-Rasset and Tenenbaum. I, for one, would likely be willing to trade a significantly lower range of available damages for a cheap and streamlined process for adjudicating such cases. See, e.g., Mark Lemley & R. Anthony Reese, Reducing Digital Copyright Infringement Without Restricting Innovation, 56 Stan. L. Rev. 1345 (2004) (“Another way to reduce the cost of enforcement is to create some sort of quick, cheap dispute resolution system that enables copyright owners to get some limited relief against abusers of peer-to-peer systems….”). But these are essentially legislative choices.
Recent scholarship from the 
