Grossly Excessive Penalties in the Battle Against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement by J. Cam Barker

May 4, 2005 | Intellectual Property | By: Mark VandeWettering

I’ve long thought that there should be some legal challenge to the excessive penalties levied against file sharers. After all, if I go and steal a CD in any store in the US, it would be classified as petty theft, with fines of maybe $500 and a maximum of thirty days of jailtime, which is almost always waived. Yet, if I download even a single copyrighted file, I could be liable for literally hundreds of thousands of dollars. The reality of these cases is that they are never brought to trial. The RIAA has settled thousands of these cases for an average of $3000 a pop. The threat of large cash fines being levied is enough to make settlement virtually the only choice in such cases, regardless of the merits.

It appears that J. Cam Barker of the University of Texas at Austin School of Law has similar thoughts, but while I am not a lawyer, he is. Check out his paper:

SSRN-Grossly Excessive Penalties in the Battle Against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement by J. Cam Barker

The article dissects awards into punitive and compensatory damages, and illustrates how under the principles laid down in the Supreme Court case BMW v. Gore, these awards may be viewed as unconsitutionally excessive.

I’ve read only about half the paper, but it seems surprisingly clear and concise. Check it out.

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