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.