Are Statutory Copyright Damages Unconstitutional?

It was only a matter of time before someone raised the constitutionality of copyright damages as a defense in the context of RIAA file sharing lawsuits. As I had suggested in my comments regarding the Jammie Thomas case, the awards of thousands or hundreds of thousands of dollars in statutory damages for offenses that create actual damages of perhaps $3.50 is fertile ground for accused infringers interested in fighting the RIAA.

Denise Barker, a defendant in an RIAA file sharing case, settled with the group yesterday for $6,050. This, after raising the constitutionality of the Copyright Act's damages provisions, though admitting to sharing major label, copyrighted files over KaZaA. Clearly the RIAA wanted no part of this fight or its sure-to-be-exorbitant legal costs.

I expect this constitutionality question and criminal copyright penalties to be the next battlegrounds for the RIAA and its defendants.

Busy Week for P2P Law - Damages Awarded in Atlantic v. Howell

There's a term we lawyers use: "spoliation." In normal terms that means destroying (or allowing to be destroyed) evidence that is relevant to pending or foreseeable litigation. In even more blunt terms, it means: the stupidest thing you can do if you're being sued by the RIAA and you're moving in a winning direction.

As I discussed several months ago, a federal court in Arizona had handed a significant setback to the RIAA in their case against Jeffrey Howell for sharing copyrighted music with KaZaA. So how did Howell follow up his small victory? He destroyed evidence that he was expressly instructed to preserve by deleting KaZaA from his computer, removing all shared files, reformatting the drive and using software to wipe the drive. That will quickly turn your fortunes around. Howell was just ordered to pay nearly $41,000 to the RIAA - a damage award that may never have been had he simply followed the court's directive.

More details at Ars Technica.

Blogger Who Posted Unreleased Guns N' Roses Tunes May Soon Be a Singing Jailbird

The story of Kevin Cogill, the blogger who posted unreleased tracks from Axl Roses' unreleased Chinese Democracy has seen a lot of coverage over the last week. My thoughts on the matter can be found in the following story at eCommerceTimes.com.

Doug Panzer Comments in Blogger Faces Hard Time for Posting Guns N' Roses Music.