Harper

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In the

Supreme Court of the United States

WHITNEY HARPER,

Petitioner,

v.

MAVERICK RECORDING COMPANY; UMG

RECORDINGS INC.; WARNER BROTHERS

RECORDS INC.; SONY BMG

MUSIC ENTERTAINMENT,

Respondents.

 


 

A Motion in Support of the Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

 



QUESTIONS PRESENTED

Is notice in real-space sufficient to trigger 17 U.S.C. § 402(d) in cyber-space infringement?

Does the strict-liability provision of the Copyright Act violate the Free Speech and Due Process Clauses of the Constitution?

By applying the strict-liability provision of the Copyright Act to internet expression, have courts allowed congress to exceed its authority under the Copyright Clause?

 


 

SUMMARY OF ARGUMENT


In this effort to remove any consideration for genuine innocence from the enforcement of copyright law, the Petitioner and her supporting amici seek to reverse the core principle stated in BMG Music v. Gonzalez, which states that “the statutory question…is whether ‘access’ to legitimate works was available, rather than whether infringers earlier in the chain attached copyright notices to pirated works.”[1]


BMG and the Fifth Circuit’s loose construction of “access” precludes the defense of innocent digital infringement from being recognized where it is hypothetically possible for a digital user to gain access to a notice of copyright affixed to a physical copy of copyrighted expression.  This effective elimination of notice requirement for digital users is accomplished despite the explicit language of 17 U.S.C. § 402(c), which requires notice to be placed “on the surface…label or container, in such a manner and location as to give reasonable notice of the copyright.”  Notice placed on a physical object at some distant location in real-space does not provide “reasonable notice of copyright” in the context of digital files in cyberspace.


Notice requirements in the American system were innovated, in part, to avoid this very question.  The majority of the legislative and judicial history of notice requirements confirms that the statutory provisions were concerned only with claims of copyright placed on the objects in question because those are the notifications that would be encountered en route to infringement.  Furthermore, there is a robust history demonstrating deep concern that expansive copyrights might endanger innocents with infringement liability.  These concerns precipitated valuable mechanisms that made infringement easy to avoid. They further permitted the elimination or mitigation of liability for those who infringed innocently.


If unreviewed, the jurisprudence resulting from this case would represent the last step in the total departure from these carefully crafted mechanisms and raises constitutional concern with regard to the Free Speech, Due Process, and Copyright Clauses.  This Court should decline the invitation to remove any enclave of innocence for the public in cyberspace interaction. To do so would only continue the trajectory toward institutionalizing the downsides of copyright that had purposefully been avoided for the first 200 years.


Apart from disallowing the last remaining defense afforded to those who infringe unknowingly, the removal of any recourse for unknowing infringement in the Digital Era would have a chilling effect on entrepreneurship and innovators who seek to cope with the realities created by the Internet. As the United States becomes a population of digital natives, the impropriety of utilizing pre-Internet doctrine to govern Internet actions is manifest.  The costs of abandoning the meager protections afforded by innocent infringement are high and broad, while the benefits are reserved for a small group of specialized interests.

 


 

ARGUMENT

I.  Legislative History with Regard to Notice and Mental State in Copyright


In a recent decision finding that a large statutory award against an individual file sharer violated the Constitution’s Due Process Clause, Judge Nancy Gertner stated, “Congress likely did not foresee that statutory damages awards would be imposed on noncommercial infringers sharing and downloading music through peer-to- peer networks.” Sony BMG Music Entm't v. Tenenbaum, 2010 U.S. Dist. LEXIS 68642 (D. Mass. 2010).  Indeed, from the very beginning of the Anglo-American system, commercial infringers who gained economic profit by their infringement were the intended targets of copyright enforcement:


…before the Recording Industry’s unprecedented assault on peer-to-peer end-using consumers, non-commercial individuals who acted for personal benefit, made no profit, and caused no significant actual damage had never been sued for statutory damages.[2]


As such, the following history concerns almost exclusively commercial infringement since commercial infringers are the only individuals copyright had been concerned with for about 300 years.


During the first 200 years of copyright law, the risk of liability for infringing innocently was minimal because “the risk of committing any act of infringement was relatively small.”[3]  Fewer works were protected, fewer exclusive rights existed, and the means to copy were prohibitively expensive.  However, over the past 100 years, exponential expansion of the protections conferred upon copyright owners, both in quality and kind, coupled with the democratization of the technology necessary to copy has led to a drastic increase in the likelihood of committing unknowing infringement.  Meanwhile, the recourse for unknowing infringement has severely diminished.


In the late 18^th^-century, only about five percent of all copyrightable works were in fact protected.[4]  Copyright law only guarded against “verbatim duplicative copying” of an “entire work or substantial portion thereof.”[5]  Moreover, the means by which anyone could accomplish such an infringement was prohibitively expensive and rare.  When Congress ratified the Copyright Act of 1790, there were only 127 printing establishments in the entire United States.[6]  Since infringement was so narrowly defined and the technology to infringe was concentrated in the hands of very few professional printers, the only groups at risk of infringement liability were “those most likely to have an awareness and understanding of copyright law, since they might well use the law to protect their own works.”[7]  Indeed, copyright law was originally penned only for those whose livelihoods depended in part on an understanding of copyright laws.  In this context, initial copyright protections were not intended to cover “non-commercial infringers who acted for personal benefit…”


However, even in this time period when only a small segment of the population would have been subject to the strictures of copyright, Congress still gave heavy consideration for those who might infringe innocently.  Since the “intangible nature of copyright’s subject matter” made innocent infringement a “greater risk than…invasions of more tangible property,” the copyright system in the early years was profoundly concerned with avoiding the imposition of liability on those who might infringe unknowingly.[8]  The legislature sought to make unknowing infringement “particularly unlikely” by clearly marking what works were protected.[9]  Attempts to modify the British system through the first 200 years of American copyright can shed light on how the idea of notice was to be used in the context of infringement.


            a.  The Introduction of Notice Requirements in Anglo-American Copyright Law.

Despite the general improbability of infringement during the late 18^th^-century, the Statute of Anne from 1709 demonstrates a genuine concern for those who might infringe unknowingly from the very beginning of Anglo-American copyright law:


Many Persons may through Ignorance offend against this Act unless some Provision be made whereby the Property in every such Book as is intended by this Act to be secured to the Proprietor or Proprietors thereof may be ascertained…[10]


The British system of notification relied on a private registry in London maintained by the Stationers’ Company—the guild that regulated printers, publishers, and booksellers.[11]  The Statute of Anne conceived of the registry as a single, central, and complete authority that made avoiding offense a relatively simple exercise in constructive notice.  Since printers were concentrated in London, the time and investment necessary to produce a book during the 18^th^-century made checking the register before any commercial printing a quick and worthwhile endeavor.


In practice, the central and comprehensive repository envisioned by the Statute of Anne proved imperfect due to the gradual spread of printers outside the London area, difficulties in manually searching through years of records, and a general lack of participation from printers.  Nevertheless, one of the vital premises that would guide the next 200 years of copyright reform was established:  “[B]ecause copyright protection presented a serious risk of imposing liability on those who had infringed innocently, potential infringers were to be provided with a simple means of determining whether” the work in question “was in fact copyrighted.”[12]


The 1790 Copyright Act modeled the Statute of Anne, however this first American copyright act required registration of the title in the district in which the author resided, deposit of a copy with the Secretary of State, and recordation in a domestic newspaper for four weeks.[13] Despite the addition of public announcement, this too was an imperfect solution.  The copyright term was 14 years during the 1790s; with over 200 newspapers across 13 districts, the process of searching 14 years of records scattered throughout the country created a cumbersome process for verifying copyright.[14]  In the 1830s, Justice Baldwin aptly characterized how this system failed to comport with the intent of providing notice to would-be infringers:


A publication in any newspaper, printed anywhere in the United States for four weeks, would be compliance with the law; it cannot be pretended, that this would answer any valuable purpose as notice, or for information, to warn any person from invading the copyright.[15]


Shortly after the 1790 Copyright Act, Congress adopted a notice requirement that elegantly remedied the issue of notice Justice Baldwin had described.  In 1802, an amendment to the 1790 Act required that those seeking copyright protection, in addition to the official procedures enumerated in the original act, “give information by causing the copy of the record…to be inserted at full length in the title-page or in the page immediately following the title of every such book or books…”[16] By mandating that the record be reproduced in the book itself and every reproduction of that book in circulation, Congress effectively made disclosure of copyright as easy as flipping a few pages into any book.  This solution remained in all copyright acts through the 19^th^-century and “mandatory notice remained a cornerstone of U.S. copyright law until 1989.”[17]


Of this solution, Justice Baldwin remarked:


The publishing [of] the copy of the record on the title leaf, as directed by the act of 1802, was to ‘give information.’  It was effectual notice, for none who would look at the book would fail to see the impress of copyright on the title-page, or the next succeeding one; so that none could offend ignorantly.  [Publication of notice in a newspaper] was mere legal implied notice; [publication of notice on every printed copy of a work] was a notice in fact, which no man could either overlook or mistake.[18]


A secondary benefit of the notice procedures stipulated by the 1802 amendment was the ease with which an inquirer could ascertain what works were in the public domain.  In fact, this advantage was enshrined in a subsequent section that imposed a $100 fine on any person who posted a copyright notice on their work without having actually acquired the legal copyright.[19]  Such a fine for improperly displaying copyright notice appositely demonstrates that the preclusion of legitimate copying was to be avoided:


…some protection is also due on the other side, that innocent and ignorant invaders of the privilege [of copyright] may not be involved in suits and penalties, by the want of accessible means of information of the subject and extent of the grant. With this wise and just object in their view the legislature, at the same time and in the same instrument by which they confer the privilege, enjoin or direct the person who would enjoy it to do certain things . . . that all may know where to go to be correctly and precisely informed of what it is he claims; what is his right, and that thus they may avoid any infringement of it. This is an essential part of the scheme for the encouragement of authors, so as not to bring others innocently into trouble or, it may be ruin.[20]


Because of the requirement to place notice in every work, one would necessarily have encountered copyright notice en route to a potential infringement.  The “effectual notice” Justice Baldwin spoke of was achieved because anyone “who would look at the book” would see the notice in their hands, before their very eyes.  For almost 200 years, copyright rules were written with this assumption in mind.


Today, the shortcomings of the Anglo-American system prior to 1802 are again on exhibit in the Harper case.  That some properly executed notice exists elsewhere in real-space, far removed from the objects and instance of infringement—away from the immediate cognizance of the potential infringer—would be a return to the decentralized, cumbersome, and incomplete pre-1802 copyright system that Justice Baldwin disparaged.  Furthermore, the reliance on hypothetical availability of notice is even more impractical than that established by the Statute of Anne since the local record store is markedly less comprehensive and even less authoritative than the registry of the Stationer’s Guild.


            b. The Necessity of Culpable Mental State in early Statute and Jurisprudence

For the most part, the effectual notice obtained through narrowly defined rights and actual notice accompanying each protected work were an effective means to prevent unknowing infringement but its efficacy was not absolute.  For example, in light of exact notification requirements, if an infringer were to remove the copyright notice from a copyrighted work or perhaps append their own name and then sell the manuscript to a printer, the third party would have “no simple way of discovering from the [fraudulent] notice and registration records that the manuscript was in fact an infringing copy” and that any subsequent copying would have constituted infringement.[21]  The same risk applied to those in the business of selling books, maps, and other works protected by copyright.  It would certainly be an undue burden for a vendor to verify the copyright status of every book in a large bookstore to ensure that the copies from each individual supplier were authorized.  To this end, mental state historically played a significant role in the determination of liability either “at the express direction of the legislature” or “as a matter of judicial interpretation.”[22]


In the Statute of Anne, the liability of vendors who sold infringing copies was statutorily limited to those who sold infringing copies of works while aware of the infringing nature thereof.  Penalties only applied to those who, without consent of the copyright owner, sold or reprinted infringing works “…[k]nowing the same to be so Printed or Reprinted, without the Consent of the Proprietors”[23] [emphasis added].  Thus, sellers were “entirely absolved from liability for unknowing infringement.”[24]


In the U.S., eight of the twelve states with copyright laws before the 1790 Act followed the example of the Statute of Anne by requiring knowledge of infringement in order to determine liability for vendors.[25]  When Congress enacted the 1790 Copyright Act, there appears to be a deliberate decision to federally limit liability for sales of infringing goods to those with culpable mental state.[26]


Importantly, over the many adjustments to copyright law and its many interpretations that occurred between 1790 and 1909, congress never took the opportunity to abandon the knowledge requirements for vendors.[27]  As late as 1879, the requirement for culpable mental state was underscored in a major U.S. legal treatise.[28]  Furthermore, in an 1897 revision of the “fraudulent copyright” prohibitions described above, Congress imposed a penalty only on sellers who “knowingly” issued or sold articles with false copyright notice.[29]  With genuine concern for individuals acting in good faith, 120 years of U.S. copyright law excused all liability for sellers who unknowingly sold infringing goods.


Despite an expansion of the categories covered by copyright law over the 19^th^-century, the courts never abandoned the considerations for those who might infringe innocently.  For example, by the mid 1800s, courts began to concern themselves not just with verbatim, literal copying, but also imitative works.  In order to prevent condoning infringement merely by making a few “immaterial variations,” courts held that close imitation of a copyrighted work could also infringe.[30]  However, liability for infringement by imitation was also limited to those acting in bad faith.


The principle of colorable alterations guided the application of judgment against imitative infringement where “colorable” means “covert, pretended, feigned, counterfeit, collusory, done for appearance’ sake.”[31]  There exists a wide body of evidence demonstrating that even this new conception of infringement required a culpable mental state, sometimes going so far as to further require an attempt to mask bad faith.[32]  The courts “worked hard to distinguish between acceptable and unacceptable imitation” with “the defendant’s mental state” the primary delineating factor.[33]  While the courts sought to expand the type of actions subject to copyright law, they simultaneously offered potential innocent infringers strong protection against liability.  Similar expansions took place in the judiciary regarding informational works, abridgment, and fair use; nevertheless conscientious consideration for innocent infringement was prevalent.[34]


Meanwhile, Congress revised federal statutes in the 1831 Copyright Act to expand their scope by including certain derivative uses of visual and musical works.  The new 1831 Act explicitly provided that selling or reproducing a protected “print, cut, or engraving, map, chart or musical composition…either on the whole, or by varying, adding to, or diminishing the main design with intent to evade the law” without the owners authorization would constitute infringement.[35]  Thus, the culpable mental state was a requirement in both jurisprudence and statute through 1909.


Notably, the receipt of actual notice, either by service of process or other written notice, defeated many of the aforementioned defenses against innocent infringement.[36]  In other words, personalized notice supplied directly to the infringer defeated innocent infringement defenses.  These exceptions to liability illustrate the deference granted to notices provided en route to an infringement or otherwise in the immediate experience of the infringer.


            c.  Deterioration of Consideration for Unknowing Infringement over the Twentieth Century.

The most relevant deviation from the first 200 years of copyright law was the gradual loosening of notice requirements that, after eighty years, ultimately led to the complete elimination of their necessity to achieve protection.  These changes in notification procedures, starting in 1909 and ending 1989, were the summation of incremental corrections to the longstanding dependence on “compliance, and exact compliance, with formalities—notice, registration, and deposit.”[37]  Without strict adherence to statutory stipulations, copyright owners’ exclusive rights could easily be defeated by technicalities such as an erroneous date and consequently place their works in the public domain.  While the evolution of these protections was indeed warranted, the unintended casualty was consideration for the commercial innocent infringer.[38]


The Copyright Act of 1909 altered the copyright regime in the United States in many dimensions and began the recent history of vague and broad statutes.  Compared to the previous body of law that narrowly defined the rights granted to copyright owners, this Act enumerated “exclusive rights but never expressly defined infringement and articulated no knowledge or mental-state requirement for any violations.”[39]


The 1909 Act also represented the first statutory protections for copyright owners who attempted to comply with statutory guidelines in order to gain protection, but somehow the notice failed to appear.  Under the 1909 Act “the omission by accident or mistake of the prescribed notice from a particular copy or copies [did] not invalidate the copyright.”[40]  As such, works were protected even if there were copies circulating without proper notice, so long as authors “sought to comply” with notice provisions.[41]  However, recognizing the importance of notice as a signifier of copyright, Congress reduced the remedies available against an infringer who was deceived by an absent notice.  Copyright owners who mistakenly omitted notice on their works were prevented from “[recovering] damages against an innocent infringer who has been misled by the omission of the notice.”[42]  Despite still being held liable to pay the copyright owner any profits gained from the infringement, damages were unavailable if notice was omitted on the work from which the infringement took place.


In a more extreme departure from the previous 250 years of copyright laws, the 1976 Act began the policy still in effect of painting exclusive rights “in broad terms…and then [providing] various limitations, qualifications, or exemptions.”[43]  For example, the statutory damages provision does “not offer any meaningful guidance on the question of what amount of damages [are] appropriate” for certain offenses.  “It merely instructs the fact finder to select an amount within an extraordinarily broad range.”[44]  This open-ended approach casts an enormous net in which both malicious infringers and innocuous offenders are haphazardly ensnared.


The 1976 Act also continued the “[liberalization of] the copyright notice requirement, principally by relaxing the rules on the form, content and position of copyright notice, and by providing more generous excuses for errors or omissions of notice.”[45]  Despite this loosening of mandatory notification requirements, the House Report on the 1976 Act identified several important informational functions of notice provided on a copyrighted work.  These include easily determining that copyright protection is claimed, who claims it, and when the protection began:


[A] person acting in good faith and with no reason to think otherwise should ordinarily be able to assume that a work is in the public domain if there is no notice on an authorized copy or phonorecord and…if he relies on this assumption, he should be shielded from unreasonable liability.[46]


Following the precedent from the 1909 Act, the 1976 Act also relaxed the remedies available against anyone “who innocently infringes a copyright, in reliance upon an authorized copy…from which the copyright notice has been omitted.”[47] The infringer “[incurred] no liability for actual or statutory damages” at all “[i]f such person [proved] that he or she was misled by the omission of notice” on the work.[48]


Tellingly, in allowing the mitigation of the minimum from $200 to $100 for an infringer who “was not aware and had no reason to believe that his or her actions constituted an infringement of copyright,” Congress stated that the provision offered “adequate insulation to users, such as broadcasters and newspaper publishers, who are particularly vulnerable to this type of infringement suit.”[49]  This declaration demonstrates the kind of offenders, namely commercial ones, Congress had in mind when authoring the statutory damages clauses.


Even the latest congressional action in § 504(c), which raised the statutory damages range to its current level, indicates that Congress has not yet addressed ordinary, non-commercial individuals.  Because the bill that would become Digital Theft Deterrence Act of 1999 was drafted a month prior to the release of Napster, “the timing of the Act suggests that legislators did not have in mind the problem of consumers sharing music through peer-to-peer networks.”[50]  Indeed, the paragraph concerning “copyright thieves” in the House Judiciary Committee’s report on the act was copied verbatim from the House Judiciary Committee’s report on the No Electronic Theft Act of 1997.[51]  The NET Act was intended to “reverse the practical consequences of United States v. LaMacchia” where wire fraud charges were dismissed against a student who created a bulletin board for the mass piracy of copyrighted software.[52]  Again, non-commercial consumers who acted only for personal use and did not profit were not a consideration.


Aptly, Judge Stearns opened his opinion in LaMacchia by saying that the “case presents the issue of whether new wine can be poured into an old bottle.”[53]  Since the charges were dismissed and Congress moved relatively quickly to correct the perceived shortcomings, it is evident that targeted action is sometimes necessary to correct inadequacies in ill-fitting statutes.  In attempting to rectify the deficiencies that let LaMacchia off the hook, Congress crafted an amendment that seemed prudent at the time, but has proved to be an ill-fitting vessel for new situations such as the file sharing cases currently in the courts.


            d.  The Berne Convention

In 1989, Congress sought to comply with international copyright policies by adopting the Berne Convention, which eliminated the mandatory notice requirement altogether.[54]  However, the Berne Convention was originally written in 1886, more than a century before the United States agreed to it.  It was not until the U.S. became a net exporter of copyrighted works that serious consideration was given to joining the international agreement.[55]


Numerous alterations to the European copyright regime took place in order to win the United States’ accession to the Berne Convention.  In 1952, the Universal Copyright Convention was formulated as an incremental step created  “for the specific purpose of making it possible for the United States to join the Berne Convention.”[56]  Even still, it took another three decades before the United States consented to the agreement.  According to the U.S. Representative at the Berne Convention’s 100th anniversary in 1998, “We took a perverse pride in the fact that we did it our way.”[57]  Despite submitting to the international accord, the United States still respected its own legislative history and incorporated it into the domestic implementation of the Berne Convention.


After explaining that notice would no longer be required to protect works after the Berne Convention Implementation, the Senate Report on the Berne Convention Implementation Act indicated that Congress still acknowledged the usefulness of the informational functions of providing notice:


…the committee recognizes the value of including notice of copyright on publicly distributed works.  The placement of such notices on copies of works alerts users to the fact that copyright is claimed in the work in question, and may prevent many instances of unintentional infringement.[58]


Pursuant to this acknowledgment, Congress preserved “an incentive for use of the same type of copyright notice” in the form of what is now 17 U.S.C. § 402(d).[59]  Thus, despite not being required to obtain copyright protection, notice still played an important role in copyright considerations.  Notably, the Berne Convention does not itself contain any innocent infringement defense.  In adopting the Convention, the United States made the additional effort to retain some protection for innocent infringement.


            e.  'Mitigated Liability is the Last Consideration for those who Infringe Unknowingly

If unreviewed, this case will remove the last remaining vestige of consideration for unknowing infringers.  Over the last century, the carefully considered mechanisms that protected innocent infringers and had existed for the first 200 years of copyright have gradually been eroded.  The only remaining means of defense for those who infringe innocently is the mitigation of statutory damages found in 17 U.S.C. § 504(c). Indeed, it is the last weak bulwark against the broad, open-ended rights granted by current copyright interpretation.


Today, even outright knowledge of copyright claims is insufficient:


… knowing that a work is protected by copyright offers a potential user little help in avoiding innocent infringement under modern copyright law, in large part because the scope of the copyright owner’s rights is so much greater today. The early constructive notice approach…depended on a relatively clear demarcation between a copyright owner’s exclusive rights and uses of a work that did not infringe. Today, though most [non-infringing] uses of copyrighted works are those allowed under significantly indeterminate doctrines such as the idea-expression dichotomy or fair use— doctrines with extremely uncertain boundaries. Someone who wants to use a work without infringing must determine not only whether the work is copyrighted but, more importantly, whether the use is permissible. Because of the multi-factor, context-sensitive standards that copyright law uses to determine fair use or distinguish idea from expression, it is generally very difficult (and often essentially impossible) to answer that latter question with certainty, short of adjudication.[60]


These complexities demonstrate the unwieldy process by which someone who is thoroughly educated in copyright might be forced to reason through their use.  Certainly it would be even more troubling to require this kind of reasoning from a teenage minor, with no schooling in matters of copyright, surfing the Internet in her parents’ kitchen and experiencing novel copyright situations that have not yet even been fully adjudicated.


By the end of twentieth century, the copyright system had radically departed from its 200 year old roots.  As Congress and the courts expanded copyright protections and the types of works protected, the opportunities to infringe grew dramatically:


In contrast to the early years of U.S. copyright law, copyright infringement is far more likely to occur today.  The amount of material subject to copyright protection has increased dramatically.  Within this much broader range of subject matter, far more works are in fact protected because the formalities required to obtain copyright have gradually been entirely eliminated.  This increased number of copyrighted works is protected for a far longer period of time…Furthermore, copyright now protects this vastly increased universe of copyrighted material against many more types of unauthorized use…as a result, it is much easier to commit copyright infringement today than it has ever been.[61]


At the same time, while copyright laws have expanded dramatically over the past 100 years, the safeguards, so deliberately placed, have drastically deteriorated:


…early copyright law sought to avoid holding innocent infringers liable in part by making clear which uses of a copyrighted work were prohibited and by making it easy to determine whether any particular work was copyrighted.  Current copyright law has eliminated both features of this “constructive knowledge” mechanism and thereby has substantially reduced its usefulness as means to allow users to avoid infringing.[62]


The Internet has provided a treasure trove of novel circumstances.  The increased severity of enforcement actions coupled with open-ended protections means that more individuals than ever are open to copyright penalties.  One judge has opined that “Congress likely did not foresee that statutory damages awards would be imposed on noncommercial infringers sharing and downloading music through peer-to-peer networks,” yet the R.I.A.A. has managed to open copyright litigation against noncommercial individuals.  With the diminished importance of notice, the trajectory that led the courts to the outlandish decisions of Thomas-Rasset, Tenenbaum, and Harper are evident.


II. Constitutional Problems Arise by Imposing Strict Liability as a Consequence of Removing Notice Requirements from the Instant of Infringement and Considerations for Mental State

There are two readings of 17 U.S.C. § 402(d).  The first is that only a notice on an object that would be encountered en route to infringement will defeat innocent infringement.  The second is that notice essentially anywhere could trigger the clause.  Of these two readings, the first is most preferable because “where an otherwise acceptable construction of a statute would raise serious constitutional problems” courts should “construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.”[63] With this in mind, the Fifth Circuit erred in not reaching the question of whether notification located in real-space, away from the instant of infringement, was sufficient to trigger § 402(d).  As a consequence, this decision has tremendous ramifications, including constitutional ones, if left unchecked.


            a. Procedural Due Process Concerns with Regard to Strict Liability.

Strict punishment of Internet expression threatens end users’ due process rights under the Fifth Amendment.  Internet infringers lack actual notice that they are doing anything illegal and further lack any targeted notice as to the penalties that might befall them.[64]    Even with actual access to copyrighted material in real space, innocent infringers lack any reasonable means to know whether Internet content providers have authority to distribute the expression through the website or program.


Infringers often face punishments of more than 750 times the value of the actual harm. They receive no clear indication about where their penalty falls in the “extraordinarily broad” statutory damages range or what the total award might be.  Given the unlimited ability to aggregate statutory penalties, the full amount of the award is essentially unlimited.  Defendants’ procedural Due Process rights are violated because they are neither given fair notice regarding the nature of their actions nor the severity of their potential penalties.[65]


            b. Substantive Due Process Concerns with the Large Statutory Awards.

The aforementioned punishments are grossly excessive in relation to the legitimate interests of the state in imposing them.[66]  Assuming arguendo that proper notice is given, Due Process concerns “are not obviated merely because the defendant [could] see [the grossly excessive award] coming.”[67]  In claiming that the Due Process Clause prohibits governments from “imposing grossly excessive punishments on tortfeasors,” this Court has established that the Due Process Clause imposes “substantive limits” on punitive damages awards.[68]  It has also been established that “[t]he touchstone of due process is protection of the individual against arbitrary action of government.”[69]  With these considerations in mind, two very recent decisions have applied punitive damage reasoning to statutory damages awards.[70]  These cases demonstrate that even awards falling within the “extraordinarily broad range” approved by congress may “lack any rational foundation and [smack] of arbitrariness.”[71]


In the case of Jammie Thomas-Rasset, a jury found the Defendant liable for willful infringement of 24 sound recordings and awarded $9,250 per song for a total of $222,000.[72] Chief Judge Davis ordered a new trial because of an error in jury instructions.  Despite noting in dictum that “the award of hundreds of thousands of dollars in damages” for file sharing was “unprecedented and oppressive,” the second jury returned a verdict even larger—$80,000 per song for a total award of $1,920,000.  After this “shocking” award, Judge Davis ordered the plaintiffs to accept remitted damages of $2,250 per song or submit to a new trial.[73]


Though Judge Davis did not reach the constitutional question, the wild variation between awards clearly underscores the Due Process shortcomings of such a broad and undirected statutory damages regime. Judge Davis agreed with numerous other courts that “although Plaintiffs were not required to prove their actual damages, statutory damages must still bear some relation to actual damages.”[74]


The second case did reach the constitutional question.  In the case of Joel Tenenbaum, Judge Nancy Gertner found that even damages assessed within the range approved by congress could violate Due Process either in aggregate or by selecting statutory ranges out of all reasonable proportion to actual damages. After extensively analyzing the degree of reprehensibility in the defendant’s conduct, Judge Gertner concluded:


…file-sharing, in general, is fairly low on the totem pole of reprehensible conduct.  Although the activity is quite pernicious in the aggregate, it regrettably is quite common, and most file sharers do not receive any direct pecuniary gain from their activity…But among this group of comparatively venial offenders, Tenenbaum is one of the most blameworthy since he engaged in the activity for a long period of time, knowing it to be illegal, and then lied in a futile attempt to cover his tracks.[75]


In reducing an award of $675,000 for 30 songs, Judge Gertner said such a penalty was “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.”[76]  She goes further, claiming that “even in copyright infringement action, there should be some nexus between the jury’s statutory damages award and the actual damages suffered by the plaintiff and the profits, if any, obtained by the defendant.”[77]


For consideration, the record companies submit economic harm file sharing has caused in aggregate.  However, “the Constitution prohibits [a] state, acting through a civil jury, from using punitive damages to punish a defendant for harm to nonparties.”[78]  As such, only the actions of the individual infringer may inform a jury’s decision.  In assessing actual damages, Gertner determined that the damage caused by Tenenbaum was either as low as $0.70 per song or as high as $15 per song.  Even considering services that allow for unlimited downloading, the flat monthly fee is less than $15.[79]


With these considerations in mind, an award that allows only the minimum statutory amount approved by Congress would yield damages between 50 and 1,071 times the actual damage per song.  Even if the innocent infringement award were allowed, the ratio would land somewhere between 13 and 285 times the actual damage per song.  In State Farm v. Campbell, the Court noted “that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”[80]  So within the context of file sharing, even the smallest amount of statutory damages weighed against the maximum considerable amount of actual harm still produces a ratio that this Court has ruled out of bounds.


Gertner also compared Tenenbaum’s damages award against those imposed on restaurants, bars, and venues who infringed by not paying appropriate license fees for music.[81]  These businesses “are arguably more culpable” than non-commercial infringers because they generate business and revenue from their infringements.  However, in these cases the ratio of penalty to actual damage was only between 2 and 6 times the licensing fee saved.  Gertner, apparently disturbed by the result of this exercise, stated that she “cannot conceive of any plausible rationale for the discrepancy between the level of damages imposed in public-performance cases and the damages” and those imposed in file sharing cases.[82]


Agreeing with Chief Judge Davis in the Thomas-Rasset case, Gertner concluded that “three times the statutory minimum is the outer limit of what a jury could reasonably (and constitutionally) impose in [Tenenbaum’s] case” and subsequently slashed the award down to 10% of the original sum.[83]  She went on to state that this significantly reduced award was “still severe, even harsh”[84] and “higher than [she] might have awarded in [her] own independent judgment”.[85]


While there is a long history of allowing treble damages for willful infringement, Judge Gertner failed to reason why, after such a long and lucid argument, she still opted to allow a ratio against the statutory minimum rather than against actual damages.[86] Doing so still yields a per-song award exponentially higher than the ratios allowed by this Court in State Farm (approximately between 150 and 3,214 times actual damages).


Consequently, allowing strict liability to be imposed, even on those who infringe innocently, automatically imposes an award that violates substantive Due Process.


            c.  Substantive Due Process Concerns with the Aggregation of Minimums

While the Tenenbaum decision appears to be a step in the right direction, Judges are likely reticent to challenge the copyright juggernaut that has been constructed over the past 100 years without some input from the Court or directive from Congress that contains targeted treatment of file sharers.  Until then, innocent consumers like Harper are at risk of virtually limitless penalties due to the aggregation of statutory minimums.


Considering the 300-year history of copyright, it is only relatively recently that the technology to copy has democratized to the extent that every individual in America with a computer has the means to copy large quantities of files quickly, whether or not they are aware or intend to do so.  Compare this against the 127 technology holders in the 1790s.


An mp3 file is only about 3 megabytes.  High-speed Internet bandwidth is about 37 kilobytes per second.  That means it takes approximately 81 seconds to download a single mp3 music file.  With a single day’s worth of downloading, a person could have 1,066 songs.  If strict liability is imposed, that means that ordinary noncommercial file sharers who download for personal use and gain no pecuniary benefit would automatically be liable for $800,000 for one day’s infringements.  Two days would merit a penalty in the millions.


Given the “minor harm” done by file sharers, it is shocking to the conscience that such an award could so easily be reached.  Legislative history makes it difficult to imagine that Congress had such an outcome in mind.  Indeed, as discussed previously, even the latest revision to statutory damage provisions was written a month before Napster launched.


Two recent cases have dealt with the concern of aggregated damages.  In Parker v. Time Warner, the Second Circuit discussed the “stacking” of “statutory damage awards that have a punitive component.”  In this case, cable television subscribers brought a class action alleging privacy violations against Time Warner pursuant to the Cable Communications Policy Act of 1984.  The statutory damages allowed by the CCPA impose $1000 per violation.  Aggregated across approximately 12 million subscribers, the resulting liability would have been in the billions.  The judge noted the potential for “devastatingly large damages [awards], out of all reasonable proportion to the actual harm.”  While the case was ultimately decided on other grounds, the judge further acknowledged


[i]t may be that the aggregation in a class action of large numbers of statutory damages claims potentially distorts the purpose of both statutory damages and class actions…in a sufficiently serious case the due process clause might be invoked..[to] reduce the aggregate damage award.


In the concurring opinion, Judge Newman advocated employing the principle that “statutes are not to be applied according to their literal terms when doing so achieves a result manifestly not intended by the legislature.”[87]  As discussed above, it is likely Congress never conceived that the statutory damages provision would apply to noncommercial file sharers.  By imposing large awards on ordinary individuals, it appears as though such a result has been achieved.


Judge Newman further “construed the statutory damage provision to authorize an award of substantially less than the minimum amount prescribed by the statute.”[88]  In the Western District of Texas, Judge Sparks applied Judge Newman’s principle to decide Texas v. American Blastfax, Inc.  The Telephone Consumer Protection Act imposes “$500 in damages for each violation” of the prohibition against unsolicited faxes.[89]  The defendant was accused of sending 4.6 million unsolicited faxes.  In considering this immense aggregation of statutory penalties, Judge Sparks “read the statute against its literal terms” and authorized an award of only $0.07 per violation.[90] This reduced the statutory penalty by a factor of 7,142 and “eliminated any punitive portion of the statutory damage award.”[91]


While Judge Sparks noted that non-aggregated statutory damages do not create constitutional concern, these cases demonstrate a judicial concern for the relatively new phenomenon of massive aggregation across many similar infractions.  Mass aggregation raises the question of “Wholly Proportionate Reprehensibility.”[92]  This Court has referred to “the degree of reprehensibility of the defendant’s conduct” as “[p]erhaps the most important indicium of the reasonableness” of an award.[93]  This Court has also indicated that “repeated misconduct is more reprehensible than an individual instance of malfeasance”[94] However, the question remains as to whether that reprehensibility increases linearly with each iteration of the same infraction across tens, hundreds, thousands, or even millions of such infractions.   One author has posed it thus:


We might think that reprehensibility is “wholly proportionate to the number of copyrights infringed…But is it indisputably true that the actions of a person who has downloaded two hundred copyrighted songs are twice as blameworthy as the actions of someone who has downloaded one hundred songs?...[O]ne could…argue for “partially proportionate” reprehensibility by employing an analogy to criminal law’s single larceny rule….[This rule] states that a series of property crimes should be considered as a single count of larceny if done as part of a general fraudulent scheme.  The rule’s rational is that once a defendant commits to a larcenous course of action, for example the burglary of a consignment store, most of his blameworthiness comes from that decision to commit burglary, not from a decision to take two items from the store instead of one…[A]n analogy can be drawn between the criminal defendant who enters a store and steals multiple items and the civil defendant who installs file-sharing software and downloads many files.  In both cases, the defendant’s blameworthiness is not a one-to-one multiple of the number of property right violations, for some of the defendant’s reprehensibility comes from committing to the illegal course of action.[95]


Indeed, Judge Gertner cited to this very principle in her decision in Tenenbaum, but did not appear to put it into practice.[96]  Nevertheless, she did raise the issue of continuing to assign damages in a wholly proportionate manner over many similar actions.


TXO and Blastfax were concerned with awards in the billions of dollars against large companies.  It stands to reason that smaller aggregations and penalties might also trigger the same concerns, especially when the defendants are minors and students.  Importantly, over all of the R.I.A.A. actions, the labels have only sued over a handful of files rather than the entire library of each individual.  They may not be so magnanimous if wholly proportionate reprehensibility is allowed.


Moreover, although the R.I.A.A. has sued around 20,000 individuals, only a handful have actually made it to court with many settling or receiving default judgments around the statutory minimum per song.  In Tenenbaum, Judge Gertner expressed concern that “an unscrupulous plaintiff could use the threat of an unpredictably high statutory damages award to extract an unfair settlement.”[97]  This concern is manifest in the potential for plaintiffs to threaten an essentially unlimited aggregation of statutory damages.  Guidance is needed from this Court or the legislature to allow penalties more befitting of the actual harm done as well as provide predictable outcomes for ordinary noncommercial infringers.


            d. Chilling Effects with Regard to Strict Liability.

In the Tenenbaum case, Judge Gertner acknowledged that “the threat of arbitrarily high statutory damages awards could unduly deter socially beneficial activities” without requiring  “some relationship between the jury’s verdict and the damages the plaintiffs incurred and the benefits [a defendant] gained through…infringement.”  She further conceded that if she found statutory damage awards within the range set by Congress “rarely, if ever, constitutionally suspect” that her decision would “threaten to unduly deter individuals from engaging in other activities that might confer greater benefits on society than [infringing] file-sharing does.”[98]


Indeed, strict punishment of Internet expression threatens content providers’ freedom of speech under the First Amendment.  By strictly punishing even innocent infringers, copyright law forces users to avoid downloading from unfamiliar voices on the Internet.  Strict punishment favors voices that have established a reputation for being authorized to represent copyright holders.  Yet the financial burden of establishing this reputation becomes prohibitive for most voices seeking to distribute legitimate ideas.  Under strict punishment, virtual pamphleteers can no longer be trusted, and so their ideas must be ignored.[99]


Similarly, strict punishment of Internet expression threatens users’ right to receive speech under the First Amendment.  Facing strict punishment, users become wary of downloading speech from unknown providers.  Damages that punish a user for a reasonable mistake while receiving infringing material will deter users’ receipt of legitimate speech.[100]


            e.  Strict Liability for Downloaders Overreaches Historical Copyright Limitations .

Lastly, Congress exceeds the scope of its power under the Copyright Clause by strictly punishing Internet expression.  The 1976 Copyright Act does not attach liability to receiving a physical copy of a work that infringes copyright, and so prior to the Internet—when copyright distribution to end users occurred via physical transfer—end users never needed to determine whether providers of content had authority to distribute under copyright law.


With the Internet, end users must now make that determination because the methodology of distributing content on the Internet necessitates that end users create copies of the content.  Unlike in the past, end users now face a penalty for mistaking whether providers of content have authority to distribute under copyright law.  This burden to virtual end users, which results from strict punishment of Internet expression, impedes the dissemination of knowledge.[101]


III.  Conclusion

As noted in Judge Gertner’s decision in the Tenenbaum case, one must “accord substantial deference to legislative judgments concerning appropriate sanctions for copyright infringement” however, such “deference must not be slavish and unthinking.”  She goes on to note that “there is substantial evidence indicating that Congress did not contemplate that the Copyright Act’s broad statutory damages provision would be applied to…students…who file-shared without any pecuniary gain.”[102]  Consequently, she posited that


[if] Congress did not foresee that section 504(c) would be used to mulct individual file sharers…in damages, it makes no sense to say that [a judge] must defer to Congress’ judgment that section 504(c)’s statutory damages ranges are appropriate in [such cases]; section 504(c) does not embody any such judgment…[103]


As Judge Stearns noted in LaMacchia, these cases all present the issue of whether new wine can be poured into an old bottle.  In Thomas-Rassett, Tenenbaum, and Harper, evidence is abundant that current statutory provisions are an ill-fitting vessel for the nuances of file sharing.


As Justice Baldwin stated in 1834, “…some protection is also due on the other side, that innocent and ignorant invaders of [copyright] may not be involved in suits and penalties, by the want of accessible means of information of the subject and extent of the grant.”  Notice on each work was a key innovation in U.S. copyright that provided indisputable notice to each person, in his or her immediate experience, that a work was copyrighted.  It was a central component of nearly 120 years of American copyright.


Even as notice requirements were relaxed, great deference was paid to the important functions such a notice provided to potential infringers.  The Innocent Infringer Defense is the last remaining vestige of consideration for those who might infringe unknowingly.  Notice somewhere out in real-space is not sufficient in the confines of cyberspace interactions.  To affirm Gonzalez would be to impose strict liability on ordinary individuals, a group Congress never intended to target.


In view of the legislative history and the gravity of the concerns that the Fifth Circuit’s ruling has raised, we move the court to grant certiorari on this case.'



[1]See BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005).

[2].   Sony BMG Music Entm't v. Tenenbaum, 2010 U.S. Dist. LEXIS 68642 (D. Mass. 2010) (Defendant’s Reply to Plaintiffs’ Response in Opposition to Defendant’s Motion for New Trial or Remittitur).

[3].                     R.  Anthony Reese, Innocent Infringement in U.S. Copyright Law, 30 Columbia Journal of Law & the Arts, 133, 135 (2007).

[4].   Id., at 138.

[5]Id., at 145.

[6].   Lawrence Lessig, Copyright’s First Amendment, 48 UCLA L. REV.  1057, 1061 (2001).

[7].   Reese, supra note 3, at 141 (citations omitted).

[8].   Id.

[9].   Id., at 144.

[10].                  Statute of Anne, 1710, 8 Ann. C. 19 (Eng.)

[11].                  Reese, supra note 3, at 146.

[12].                 Id., at 147.

[13].                  1790 Copyright Act § 3.

[14].                  Reese, supra note 3., at 148.

[15].                 Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834) (Baldwin, J., dissenting).

[16].                  Act of April 29, 1802, ch. 36 § 1, 2 Stat. 171, 171 (repealed 1831).

[17].                  Reese, supra note 3, at 151.

[18].                 Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 698y (1834) (Brightley’s 3d ed.) (Baldwin, J., dissenting).

[19].                 Act of Apr. 29, 1802, ch. 36 § 4, 2 Stat. 171, 172 (repealed 1831).  The penalty remained in all subsequent revisions through the 1909 Act.

[20].                  Wheaton v. Peters, 29 F. Cas. 862, 867 (C.C.E.D. Pa. 1832) (No. 17,486) aff’d, 33 U.S. (8 Pet.) 591 (1834).

[21].                 Reese, supra note 3, at 154.

[22].                 Id., at 154.

[23].                 Statute of Anne, 1710, 8 Ann. C. 19 (Eng.).

[24].                 Reese, supra note 3, at 155.

[25].                 Reese, supra note 3, Footnote 87 at 156.

[26].                 Notably, in the 1790 US Patent Act, which was passed only several weeks earlier, Congress did not require culpable mental state for vendors of infringing goods. Had the framers wished to forego guilty knowledge in copyright infringement, they could have easily left out the knowledge clause as they had in the 1790 Patent Act.   See 1790 Patent Act, § 4, 1 Stat. 109, 111.

[27].                  Reese, supra note 3, at 157.

[28].                 Eaton S. Drone, A Treatise on the Law of Property in Intellectual Productions in Great Britain and the United States, 142-44 (1879) (“[I]n the case of the seller, it must be shown that the book was unlawfully printed, published, or imported, and that in selling or exposing to sale he was aware of that fact.”).

[29].                 Act of Mar. 3, 1897, 29 State. 694, 694.

[30].                 Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).

[31].                 3 Oxford English Dictionary 503, “colorable,” definition 2c (2d ed. 1989) (citations back to 1440)

[32].                 See Bartlett v. Crittenden, 2 F. Cas. 967, 969 (C.C.D. Ohio 1849) (No. 1,076) (“…the discrepancies that appear only show the intent of the copyist” [emphasis supplied]).  See Emerson v. Davies, 8 F. Cas. 615, 623 (C.C.D. Mass. 1845) (No. 4,437) (Justice Story on colorable alterations:  “…the question [is] whether [the defendant] has, in substance, copied…from the plaintiff’s work, with merely colorable alterations and devices to disguise the copy, or whether the resemblances are merely accidental…” [emphasis supplied]).  See GEORGE TICKNOR CURTIS, A TREATISE ON THE LAW OF COPYRIGHT 238 (1847) (enumerating modes of infringement, including “[b]y imitating the whole or a part, or by reproducing the whole or a part with colorable alterations and disguises, intended to to give it the character of a new work” [emphasis supplied]).  See  Daly v. Palmer, 6 F. Cas. At 1138 (“It is hardly possible that the resemblances are accidental, and that the difference are not merely colorable with a view to disguise the plagiarism.  The true test of whether there is piracy or not, is to ascertain whether there is a servile or evasive imitation of the plaintiff’s work.” [emphasis supplied.]).

[33].                 Reese, supra note 3, at 164.

[34].                 Reese, supra note 3, at 164-171.

[35].                  1831 Copyright Act (Act of Feb. 8, 1831), ch. 16 § 7, 4 Stat. 436, 438) (repealed 1870) (emphasis supplied)

[36].                 Act of Aug. 24, 1912, ch. 356 § 25(b)

[37].                  S. COMM. ON THE JUDICIARY, 86TH CONG., 2D SESS., COPYRIGHT LAW REVISION: STUDIES PREPARED FOR THE SUBCOMMITTEE ON PATENTS, TRADEMARKS AND COPYRIGHTS OF THE COMMITTEE ON THE JUDICIARY, STUDY NO. 17, THE REGISTRATION OF COPYRIGHT 15 (Comm. Print 1960).

[38].                 Notably non-commercial individuals were totally unaware that this was a battle they needed to fight until 2003 when many were sued by the R.I.A.A.

[39].                 Reese, supra note 3, at 179.

[40].                 1909 Copyright Act § 20.

[41].                 Id.

[42].                 1909 Copyright Act, ch. 320, § 20, 35 Stat. 1075, 1080 (repealed 1976).

[43].                 H.R. REP. NO. 94-1476, at 61 (1976).

[44].                 Sony BMG Music Entm't v. Tenenbaum, 2010 U.S. Dist. LEXIS 68642 (D. Mass. 2010) (Order on Motion for New Trial or Remittitur at 22) (Judge Gertner is speaking about current copyright laws, but the statutes in question are the same ones from the 1976 law, only with an increased maximum and minimum.).

[45].                 PAUL GOLDSTEIN, 1 COPYRIGHT § 3.4 at 3:41 (2006).  Cf. 1909 Copyright Act § 20 with 1976 Copyright Act, 17 U.S.C. §§ 405, 406 (2000).  Under the 1976 Act, federal copyright attached immediately on fixation without any notice required, and the copyright notice was required in order to maintain protection when the work was published.

[46].                  H.R. REP. NO. 94-1476, at 143 (1976).

[47].                 1976 Copyright Act, 90 Stat. 2541, 2578, § 405(b) (1976).

[48].                 Id., at § 406(a).

[49].                 H.R. REP. NO. 94-1476, at 163 (1976).

[50].                 Tenebaum, supra note 44, at 31.  (While the bill was not signed into law until December, statements by sponsors of the Digital Theft Deterrence Act Orrin Hatch and Patrick Leahy indicate that this interpretation holds true.  See Id., at 34.)

[51].                 Id. at 32.

[52].                  H.R. REP. NO. 105-339 at 3.

[53].                 United States v. LaMacchia, 871 F. Supp. 535 (D. Mass. 1994).

[54].                 Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, § 7, 102 Stat. 2853, 2857-59 (1988).

[55].                 Reese, supra note 3, at Footnote 172 at 175.

[56].                 Susan Tiefenbrun, A Hermeneutic Methodology and How Pirates Read and Misread the Berne Convention, 17 Wis. Int’l L.J. 1 (1999).

[57].                 Ralph Oman, The Impact of the Berne Convention on U.S. Copyright, 455 PLI/Pat 233, 237 (1996).

[58].                  S. REP. NO. 100-352, at 43 (1988), as reprinted in 1988 U.S.C.C.A.N. 3706, 3740-41 (emphasis supplied).  See also H.R. REP. NO. 100-609, at 26-27 (1988).

[59].                  Melville B. Nimmer & David Nimmer, NIMMER ON COPYRIGHT, § 7.02(c)(3) (2009)

[60].                 Reese, supra note 3, at 178.

[61].                 Id., at 176 (citation omitted).

[62].                 Id.

[63].                 Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).

[64].                 Tenenbaum, supra note 44, at 22 (…I have doubts whether this extraordinarily broad statutory range afforded Tenenbaum fair notice of the liability he might face for file sharing…”).

[65].                  BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574 (1996) (“Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.”).

[66].                 Tenenbaum, supra note 44, at 61 (“…the government’s legitimate interests in compensating the plaintiffs and deterring unlawful file-sharing.”).

[67].                 J. Cam Barker, Grossly Excessive Penalties in the Battle Against Illegal File-Sharing:  The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement, 83 Tex. L. Rev. 525, 542 (2004).

[68].                 Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436 (2001).

[69].                 Browning-Ferris Indus. Of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 281 (1989) (Brennan, J., concurring) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986).

[70].                 Tenenbaum, supra note 44, at 22.

[71].                 Id., at 51.

[72].                 Capitol Records Inc. v.  Thpmas, 579 F. Supp. 2d at 1213.

[73].                 Capitol Records Inc. v. Thomas, 680 F. Supp. 2d at 1048, 1050.

[74].                 Id., at 1048.  (See also Webloyalty.com, Inc. v. Consumer Innovations, LLC, 388 F. Supp. 2d 435, 443 (D. Del. 2005) (“[T]he amount of a statutory damages award must also take into account the actual profits earned by the defendant and revenues lost by the plaintiff.”); Bly v. Banbury Books, Inc., 638 F. Supp. 983, 987 (E.D. Pa. 1986) (“[N]umerous courts have held that assessed statutory damages should bear some relation to the actual damages suffered.”); RSO Records, Inc. v. Peri, 596 F. Supp. 849, 862 (S.D.N.Y. 1984) (“Undoubtedly assessed statutory damages should bear some relation to actual damages suffered.”). In fact, Senator Orrin Hatch, a sponsor of the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, which increased section 504(c)’s statutory damages ranges to their current levels, stated in remarks regarding a predecessor of that bill, “In most cases, courts attempt to do justice by fixing the statutory damages at a level that approximates actual damages and defendant’s profits.” 145 Cong. Rec. 13,785 (1999))

[75].                 Tenenbaum, supra note 44, at 52.

[76].                 Id. at 59, (quoting St. Louis, Iron Mountain & Southern Railway v. Williams, 251 U.S. 63 (1919)).

[77].                 Id. at 28.

[78].                 Philip Morris USA v. Williams, 549 U.S. 346 (2007) (Though speaking of punitive damages, recent cases have opened the application punitive damages jurisprudence to statutory damage cases)

[79].                 Tenenbaum, supra note 44, at 44-47 ($0.70 for a legitimate download of a single song from an online store or $15 if a physical CD needed to be purchased).

[80].                 State Farm Mut. Auto. Ins. V. Campbell, 538 U.S. 408 (2003).

[81].                 Tenenbuam, supra note 44, at 41-42 (“EMI Mills, 470 F. Supp. 2d at 75; see also Sailor Music, 867 F. Supp. at 570 (stating that in cases involving bar and restaurant owners who have failed to purchase licenses to play copyrighted songs, “courts typically award three times the amount of a properly purchased license for each infringement”); Roger D. Blair & Thomas F. Cotter, An Economic Analysis of Damages Rules in Intellectual Property Law, 39 Wm. & Mary L. Rev. 1585, 1661, 1667 (1998) (concluding, based on a review of “every reported decision from 1992 to 1997 in which a court has awarded statutory damages,” that “when (1) some basis [such as the cost of a standard licensing agreement] exists upon which to quantify the plaintiff’s loss, and (2) detection costs are high, courts tend to award statutory damages roughly equal to double or treble damages”). The magnitude of the awards in public- performance cases is also often substantially -- even shockingly -- lower than the $675,000 award at issue here. See WB Music Corp. v. S. Beach Rest., Inc., No. CV-09-1528-PHX-LOA, 2009 U.S. Dist. LEXIS 119158, at *9, *15 (D. Ariz. Dec. 1, 2009) (awarding, in a report and recommendation adopted by the district court, $30,000 for the unauthorized public performance of four songs, where a license would have costed approximately $3,345.88); Broad. Music, Inc. v. Northern Lights, Inc., No. 1:07-CV-476 (GLS/RFT), 2009 U.S. Dist. LEXIS 64715, at *4-*6 (N.D.N.Y. July 27, 2009) (awarding $40,000 for the unlicensed public performance of ten works, where a license would have cost approximately $24,890.61); It’s Amore Corp., 2009 U.S. Dist. LEXIS 55721, at *24 ($34,500 for twenty-three works; license cost approximately $9,753.75); EMI April Music Inc. v. Jet Rumeurs, Inc., 632 F. Supp. 2d 619, 625-26 (N.D. Tex. 2008) ($21,000 for six works; license cost approximately $12,421.46); Charlie Deitcher Prods., Inc. v. Cuevas, No. SA:06-cv-00601-WRF, 2008 U.S. Dist. LEXIS 50939, at *8-*9 (W.D. Tex. June 17, 2008) ($6,750 for three works; license cost approximately $3,725); Broad. Music, Inc. v. Spring Mount Area Bavarian Resort, Ltd., 555 F. Supp. 2d 537, 545 (E.D. Pa. 2008) ($16,000 for eight works; license cost approximately $10,340)”).

[82].                 Id., at 42.

[83].                 Id., at 53.

[84].                 Id., at 6.

[85].                 Id., at 55.

[86].                 Id.

[87].                 Parker v. Time Warner Entm’t Co., 331 F.3d 13 (2d Cir. 2003) at 22-27.

[88].                  Barker, supra note 67, at 551.

[89].                 47 U.S.C. § 227(f)(1) (2000).

[90].                 Texas v. Am. Blastfax, Inc., 121 F. Supp. 2d 1085, 1090-91 (W.D. Tex. 2000).

[91].                 Barker, supra note 67, at 552.

[92].                 Id.

[93].                 BMW, 517 U.S. at 575

[94].                 Id., at 577.

[95].                 Id., at 553 (citations omitted) (author also acknowledges that with downloading twice the number of songs “there is no doubt that twice the amount of harm is caused and thus twice as much damage must be compensated, but this inquiry concerns the moral blame to be placed on the defendant.”).

[96].           Tenenbaum, supra note 44, at 50. (“…the reprehensibility of a file sharer’s conduct does not increase linearly with the number of songs he downloads and shares.  Someone who illegally downloads 1,000 songs may be more blameworthy than an individual who illegally downloaded only one, but it seems odd to say that this conduct is 1,000 times more reprehensible.  Section 504(c) ignores this issue entirely…Consequently, the aggregation of statutory damages…may result in unconscionably large awards.”).

[97].                 Id. at 43.

[98].                 Tenenbaum, supra note 44, at 43.

[99].                  Reno v. ACLU, 521 U.S. 844, 870 (1997) (describing Internet as providing “relatively unlimited, low-cost capacity for communication of all kinds” and comparing Internet users to pamphleteers).

[100].                Smith v. California, 361 U.S. 147 (1959) (striking down strict liability statute that punished possession of obscene material).

[101].                Cf. Eldred v. Ashcroft, 537 U.S. 186, 212 (2003) (describing the Copyright Clause as “both a grant of power and a limitation”); Graham v. John Deere Co., 383 U.S. 1, 5−6 (1966) (“The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose.”).

[102].               Tenenbaum, supra note 44 ,at 5.

[103].               Id. at 36.