Last Tuesday, the 8th Circuit reinstated a $ 222,000 damages verdict assessed against Jammie Thomas-Rasset, who after three different trials was found guilty of copyright infringement for having illegally shared songs on the now-defunct file-sharing service KaZaA.  When the Recording Industry originally alleged she had infringed upon its parties’ copyrights, Thomas became “infamous” when she, decided to not settle the claim but instead defend herself in court.   The only other person who opted to defend themselves in court against such copyright infringement claims was Joel Tenenbaum, whose own case was also characterized by courts attempting to lessen the jury-awarded damages.

The crux of the 8th Circuit’s opinion was whether the $ 222,000 damages verdict was so high that it violated Thomas’s Due Process rights under the Fourteenth Amendment.  Under the almost century-old Supreme Court decision of St. Louis, I.M. & S. Ry. Co. v. Williams, damages awarded can violate due process if they are “so severe and oppressive as to be wholly disproportioned to the offense an obviously unreasonable.”  Considering that Thomas’s assessment had been for illegally copying and sharing twenty-four songs, working out to be $ 9, 250 per song, how could the 8th Circuit have concluded that the damages weren’t “wholly disproportioned” and “obviously unreasonable?”  Surely the court couldn’t have agreed that illegally sharing a single song online is behavior so egregious that it merits a $ 9,250 fine?!  Well, the court did, and it did so by explaining the context of the Williams quote above.

As the 8th Circuit explains, the reference to which a court judges whether damages are “wholly disproportioned” and “obviously unreasonable” is not the damage suffered by the copyright owners.  Though I’m sure there’s an argument out there saying otherwise, I can’t imagine how the copyright owners suffer a harm equal to $ 9,250 each time someone illegally shares their songs.   Instead, the reference with which we gauge an appropriate damage value is in the purpose behind Congress being able to provide their value statutorily.

If you read the Williams opinion, much of the language surrounding the above quote regards the discretion and latitude Congress enjoys when it writes into law that claimants can pursue specific amounts of damages for having suffered a wrong.  Though a claim’s availability is triggered by the wrong suffered, the remedy thereto is not.  Instead, Congress can make available statutory damages that also encompass the pursuit of an important public policy.  The 8th Circuit explains here that part of the reason the statutory damages award for copyright infringement claims can be so high is because of copyright law’s goal of incentivizing the creation of art.  The 8th Circuit even explained that Congress was well aware of the disconnect between the value of one copyrighted song and the high statutory damages available to the copyright owners.  Congress justified the disconnect with how important copyright protection is and the ease with which it can be widely undermined thanks to the Internet.  In other words, the high statutory damages is meant to be a deterrent more than compensation for a wrong suffered.

Even though Congress enjoys such wide latitude and can set high statutory damages for reasons like this, that latitude is not without limit.  Williams recognized the Due Process Clause of the Fourteenth Amendment does set an upper limit to the amount of damages a statute can make available for a given wrong, but it did not offer much guidance as to what that limit is.  In the context of copyright infringement, where would that limit be?  Having to pay a damages award of $222,000 is enough to forever change the financial lives of most people.  It’s enough to financially ruin most people, but I can imagine many people who have enough earning power to make it through such an assessment and live another day.  What about $ 1 million?  $ 10 million?  The one thing I keep coming back to is that it’s a tough pill to swallow to accept that even an important public policy like this justifies someone’s financial life being completely derailed just because they illegally downloaded a couple dozen songs from a P2P file sharing network.

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