Defendant to RIAA: 428,571 Times Actual Damages is Unconstitutional

New tactic in the fight against the RIAA is to admit guilt, but challenge copyright laws and argue that compensatory damages greater than 9 to 1 violates the Due Process Clause of the 14th amendment.

In the case of Elektra vs Barker attorney Ray Beckerman of Recording Industry vs the People is employing a new tactic in his longstanding tussle with the RIAA. He readily admits that his client did use the KaZaA file-sharing program and should be punished accordingly, but that actual damages should be limited to $3.50 per song she made available for a total of $750 if found liable.

Beckerman challenges the constitutionality of the statute awarding damages for copyright infringement to the extent it could be construed as authorizing more than nine times the actual damages. The Supreme Court has previously ruled that "compensatory damages are intended to redress a plaintiff’s concrete loss" which in this case is a mere 35 cents - 70 cents minus 35 saved for not having to distribute it - per each illegally downloaded song. At most 10:1 makes its a grand total of $3.50 for each song.

For in 2003, in State Farm v. Campbell, the court ruled that a single-digit ratio (that is, no more than 9 to 1) was appropriate as a matter of due process in all but the most exceptional cases. Anything greater is excessive and violates the Due Process Clause of the Fourteenth Amendment.

If you recall, it was Virgin v. Thomas where the defendant Jammie Thomas was found guilty of copyright infringement and was ordered by the jury to pay some $9,250 for each of the 24 songs she illegally made available using KaZaA.

With actual damages being approximately 35 cents per illegally downloaded song the punishment allowed by current law is clearly unconstitutional since it allows compensatory damages from between 2,142 and 428,571 times the actual damages (35 cents) which is far, far greater than the 9 to 1 the Supreme Court has determined to be the maximum without violating the 14th amendment.

Excerpt from the court brief:

6. Upon information and belief, the plaintiffs' lost revenues are approximately 70cents per download.

7. Upon information and belief, the plaintiffs' saved expenses per download are approximately 35 cents per download.

8. Upon information and belief, the plaintiffs' actual damages are approximately 35cents per download.

9. Plaintiffs' damages theory, that it is entitled to statutory damages of from $750 to $150,000 per song file downloaded would lead to an unconstitutional construction of 17 U.S.C.§ 504, which would lead to a result plainly violative of due process, since the damages awarded under any such theory would range from 2,142 times the actual damages to 428,571 times the actual damages sustained. See, e.g. Parker v. Time Warner Entertainment Co.,331 F.3d 13 (2d Cir.

2003); UMG Recordings, Inc. v. Lindor, 2006 WL 3335048 (E.D.N.Y. 2006); In re Napster Inc., 2005 WL 1287611 (N.D. California 2005).

This new tactic by Ray Beckerman takes the fight to the very law itself governing copyright infringement and could mean that future defendants would be held liable for several hundreds of dollars and not hundreds of thousands making the fight against file-sharers even more unpalatable for copyright holder groups like the RIAA.