In Zomba v. Panorama, a 6th Circuit karaoke copyright infringement case which was cited in the papers in Capitol v. Thomas, on the issue of unconstitutionally excessive statutory damages, a petition for certiorari has been filed with the United States Supreme Court.
The petition maintains that a statutory damages award which is 44 times the actual damages is unconstitutional.
At page 32 of the brief the petitioner describes the flood of 'statutory damages' litigation that has descended upon the federal judicial system:
The defendant is represented by Lawrence E. Feldman, located in Elkins Park, Pennsylvania.
C. Copyright holders are flooding the courts with statutory damage cases.
This case illustrates an alarming trend – large disproportionate civil statutory damage awards in copyright cases. Professional copyright trade organizations and lobbying organizations like the RIAA (Recording Industry Association of America),
NMPA (National Music Publishers Association ), and MPAA (Motion Picture Association of America), along with foreign or multinational trade organizations, like the International Federation of the Phonographic Industry (IFPI) , and the World Intellectual Property Organization (WIPO), have engineered increases in
statutory damage limits all over the world, including 17 U.S.C. §504, and have at the same time, mounted well financed and highly publicized campaigns against
both professional and consumer infringers.
One example of this was the well publicized case of UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 351 (S.D.N.Y. 2000), in which the RIAA, on behalf of the five major recording labels, brought suit against website MP3.com and sought in excess of $250,000,000 in statutory damages. In granting partial summary judgment in favor of the RIAA, the judge observed that internet companies “may have a misconception that, because their technology is somewhat novel, they are somehow immune from the ordinary applications of laws of the United States, including copyright law,” but that “[t]hey need to understand that the law’s domain knows no such limits.” UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 351 (S.D.N.Y. 2000). See also http://archives.cnn.com/2000/LAW/09/06/mp3.lawsuit.01/.
Another example was the well publicized campaign of RIAA-sponsored copyright litigation against thousands of individual music downloaders, which recently spawned a statutory damage award of $220,000 for downloading 24 songs that had a retail
value of less than $24. Capital Records v. Thomas, supra. See also http://recordingindustryvsthepople.blogsot.com, a website that tracks RIAA instituted
litigation. Of note is the admission made by the RIAA in Capitol Records v. Thomas that most of the proceeds of these litigations are earmarked to file more litigations by the RIAA on behalf of its members.
Petition for Certiorari
* Document published online at Internet Law & Regulation
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