Earlier this year I helped write EFF's amicus brief in Capitol v. Thomas. Capitol had sued Ms. Thomas for unauthorized file-sharing of 24 songs. After a jury awarded Capitol $1.5 million in statutory copyright damages, the trial judge reduced the award to $54,000 on Constitutional grounds.
The defendant record companies appealed the reduction of statutory damages, and last week the Sixth Circuit Court of Appeals agreed. The Court reinstated an earlier jury award of $222,000. That's damages of $9,250 per song, for songs that sell for about a dollar at retail. The Court rejected arguments by EFF and Ms. Thomas that such statutory damages awards were unconstitutional. The Court appeared to hold that an award of statutory copyright damages (1) didn't depend on whether the defendant's activities were non-commercial; (2) could punish the defendant for the acts of others (in this case, other file-sharers): and (3) did not have to bear any relationship to actual damages.