In SONY BMG Music Entertainment v. Cloud, a case pending in Philadelphia, the Free Software Foundation has requested permission to file an amicus curiae brief arguing that the RIAA's statutory damages theory is unconstitutional.
Among other things, the brief:
-reviews case law and scholarship subsequent to the Supreme Court's decision in the State Farm case to the effect that statutory damages are subject to due process scrutiny under the test enunciated in State Farm and in the Gore case;
-analyzes the Supreme Court cases in Gore, State Farm, and Williams, as well as the 6th Circuit's decision in Zomba;
-discusses other authorities for the principle that statutory damages under the Copyright Act must bear a reasonable relationship to actual damages;
-argues that the RIAA and the Department of Justice ought not to be permitted to blur the distinction between their "downloading" claim and their "distribution" claim;
-argues that the RIAA and Department of Justice ought not to be permitted to speculate as to what the record companies' damages might have been had they been able to prove that the defendant was in fact a distributor;
-argues that the RIAA's theory that every unauthorized download is a lost sale for damages purposes has been discredited;
-argues that even under the Williams test, which the RIAA and DOJ claim to be applicable, the RIAA's statutory damages theory is still flagrantly unconstitutional;
-points out that even the Department of Justice, which has argued on the RIAA's behalf that "statutory damages" are different than "punitive damages", has itself taken the position -- but months ago -- that "statutory damages ...are similar to punitive damages"; and
-points out that the US Supreme Court has recognized that statutory damages are indeed similar to punitive damages.
Free Software Foundation Motion for Leave to File Amicus Curiae Brief
Proposed Amicus Curiae Brief Submitted by Free Software Foundation
Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player