> At that point, they didn't need to prove anything at all other than "infringement," which would include his own use of the music and of his making them available to others, regardless of how much infringement there really was.

Your logic is wrong. While it is true that all the plaintiffs needed was unauthorized reproduction, that doesn't mean that finding additional infringements won't cause a jury to award higher statutory damages: indeed, the jury is specifically instructed to take into account the nature of the infringements.

See my response to you below. You're confusing multiple issues. For purposes of my discussion about the constitutionally-permissible compensatory-to-punitive ratio, the sole question is what actual damages were proven. At trial, the defendants only proved $0.99 actual damages for each song.

Your argument about other unproven damages has already been rejected by the 'Philip Morris' Supreme Court case, which explicitly said jurors could only consider, when deciding on punitive damages, actual damages proven in court. (In that case, the jurors had considered damage to other smokers in the state who weren't plaintiffs in the actual case.)

> At trial, the defendants only proved $0.99 actual damages for each song.

I suspect you mean the plaintiffs. In any case, it really doesn't matter; the damages in this case are not separable into punitive and compensatory parts. You can argue that this is unconstitional, but you can't argue that that damages awarded are unconstitutional on the basis of your or the defendant's estimate of the compensatory damages, seeing as those aren't what the jury used in their determination of damages. So your $0.99 "actual damages" is a red herring. Had there been more of an onus on the record companies to provide more evidence of actual damages, they would almost surely have been able to provide at least rough estimates, using studies that were cited in the expert testimony of Stanley Liebowitz. There was however, no onus to do so, so it was reasonable for the plaintiffs not to go in greater detail here.

> Your argument about other unproven damages

What argument about "unproven damages"? I have not used that language, please don't put words in my mouth. It's fine for you to quote me; please don't misparaphrase me.

I was referring to the unproven damages you wrote about above, the unproven distribution damages. Fact is, at trial, the only actual damages proven was the unauthorized personal use of a $0.99 song.

"Had there been more of an onus on the record companies to provide more evidence of actual damages, they would almost surely have been able to provide at least rough estimates ..." Yet, it looks like they didn't, likely because they would have been much, much lower than the $150,000 per infringement available under the statute, and they wanted the jury to think big numbers. It was a tactical gamble, the same type made daily in trials across the country.

Like I wrote in the post, Congress can't simply call a duck a goose and get around the due process protections established by the Gore, Philip Morris, and Campbell cases. The statute's language does not trump due process and the fundamental fact that we have actual damages proven at trial (~$0.99 per song) and a grossly excessive award ($22,500.00 per song) awarded by way of a punitive element ("willful"). They are "punitive" damages by any measure.

That undoubtedly triggers due process protections.

> Fact is, at trial, the only actual damages proven was the unauthorized personal use of a $0.99 song.

Wrong, as I've pointed out to you numerous times. Defence did not have any expert testimony on damages (this was indeed one of big blunders of the Tenenbaum team, and was due to their basing the case on whimsical fair-use arguments). Plaintiffs did have an expert on damages (Stanley Liebowitz), but neither he nor any of the plaintiffs witnesses contributed any proof of the "actual damages." If you wish to persist in making this claim, please provide documentary evidence.

> Yet, it looks like they didn't, likely because they would have been much, much lower than the $150,000 per infringement available under the statute, and they wanted the jury to think big numbers. It was a tactical gamble, the same type made daily in trials across the country.

They didn't because they didn't need to, as I've said elsewhere. Everything else is pure speculation on your part.

> the fundamental fact that we have actual damages proven at trial (~$0.99 per song)

Show me evidence of your "fundamental fact". I submit that you can't: there was no determination of actual (or compensatory) damages.

You're making my argument: "neither he nor any of the plaintiffs witnesses contributed any proof of the "actual damages.""

That's not entirely true, as the record companies did briefly call their own lawyers to testify as to ownership of the songs, thereby establishing Tenenbaum's wrongful (i.e., unpaid) use of them. Ergo, $0.99 actual damages.

Otherwise, that's the whole point: we have a $22,500 award (per song) on $0.99 proven damages. That means the vast majority of the award -- over 20,000-to-1 -- is for punitive damages, triggering Gore/Campbell due process concerns.

What part of that don't you get? The fact that a statute says this is okay is meaningless: the constitution prevails.

Your argument is just plain silly. Since the plaintiffs didn't have to "prove" the amount of damages due to unauthorized distribution, you unilaterally and rather brazenly set the figure at zero. You then use the figure used during a separate demonstration (by the defendants, I might add) of how easy it is to download music legally, along with the courts determination that unauthorized reproduction took place, to get to your 20,000-to-1 ratio. You do see that this is preposterous, don't you?

Essentially, your logical flaw is to apply a court case that has nothing to do with copyright to one that is purely about copyright. In the case you reference, it is in theory possible to determine the damages caused: just sum the quantities spent by each of the plaintiffs on doctors' fees and other medical expenses. It is impossible to do that in the context of unauthorized distribution of copyrighted material. This is why the statutes give the courts leeway in this domain -- as you have acknowledged elsewhere.

If we take your argument it its logical conclusion, the maximum damages for sharing a song should be $4, since one can never "prove" the quantity of damages resulting from unauthorized distribution. Do you really think that damages of this size are going to deter anyone from filesharing?

Punitive damages are awarded for intentionally injurious behavior. They are not required to match up to actual harm -- they are intended to punish and to encourage the defendant to avoid future injurious behavior.

Punitive damage case law is inapplicable to compensatory damage cases (statutory damages are compensatory, not punitive).

It's like crime: if you commit a crime, you waive due process in regards to the formula used to determine what sentence you serve. Your only protection is what the people, via the legislature, has determined is a fair formula for determining sentencing.

BTW, you should check your case law. Statutory damages have always been upheld by the courts.

Speaking of checking your case law, you should look into the statutory damages. If there is no punitive element, then why are damages elevated for "willful" conduct?

There's nothing novel about applying due process limitations to statutory prescriptions. "Always upheld" isn't remotely true; the issue of due process restrictions on punitive elements in statutes has barely been considered even by District Courts (much less appellate courts) in the wake of the Gore and Campbell cases.

You clearly don't understand what statutory damages are.

Statutory damages are not punitive damages. Statutory damages are compensatory damages, for when calculation of actual harm is impossible or practically so, though harm clearly exists. Here -- it's clear that the record company lost some money from the defendant's file sharing eating into sales, but how much?

Statutory damages are the only compensatory damages that are allowed to account for the legal costs of pursuing action. Attorney's fees are not awarded as part of compensatory damages, and are usually are only available for intentional torts. Finally, Statutory damages are in lieu of all other compensatory damages, and judges will rarely if ever grant punitive damages alongside a statutory election.

In response to your arguments above: Philip Morris is a punitive ("make an example of") damages case. It only applies to punitive damages. It does not apply to compensatory damages.

See my response above. "Statutory" does not equal "solely compensatory," particularly not where the statute includes a punitive element for "willful" conduct.