In UMG v. Lindor, Judge Trager has granted Ms. Lindor's motion to add a defense based on the unconstitutionality of the $750-per-song damages sought by plaintiffs. He rejected the RIAA's arguments that the defense was without merit, that the motion was untimely, that the amendment would prejudice the RIAA, or that Ms. Lindor was required to send a notice to the United States Department of Justice of her defense of unconstitutionality.
Judge Trager ruled:
[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered.....Furthermore, Lindor provides a sworn affidavit asserting that plaintiffs' actual damages are 70 cents per recording and that plaintiffs seek statutory damages under the Copyright Act that are 1,071 times the actual damages suffered. Aff. of Morlan Ty Rogers, ("Rogers Aff.", [pars.]5, 6. See also Aff. of Aram Sinnreich, ("Sinnreich Aff."), [par.] 2, 3 (attesting that popular music sound recording downloads and consumer license to use same are lawfully obtainable to the public at 99 cents per song, and of that 99 cents, roughly 70 cents per song is paid by the retailer to the record label). As FRCP Rule 12(b)(6) requires that this figure be taken as true for purposes of the motion, Lindor has alleged a factual basis supporting her affirmative defense."This is potentially hugely important. If Ray wins on this issue (RIAA would almost certainly try to get it to the US Supreme Court if he does), it would be, without a doubt, one of the most important copyright cases in modern times...because it would take away the ad terrorem aspect of copyright law from ordinary citizens and the big copyright owners would have to do what normal litigants have to do, which is to prove actual damages. As Ray argues and the Judge notes, "plaintiffs' actual damages are 70 cents per recording and that plaintiffs seek statutory damages under the Copyright Act that are 1,071 times the actual damages suffered."
BTW, a lot of the problems in Canadian copyright law would go away if statutory damages were limited to purely commercial situations and could not be used to intimidate teachers, librarians, researchers, scholars, students and countless ordinary citizens who behave in ordinary ways.
At the time they were enacted in Canada in 1997, only Canada and the USA amongst major countries had the broad concept of statutory damages (i.e. minimum of $500 and $750 per work respectively).
Even in the USA, statutory damages are not available where the activity was done by an educational institution, library, archvive, public broadcaster or employee thereof "in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use". The details are available here.
Now, THAT is something that educators should be fighting for here in Canada. Why should Canada treat its educational user community so much worse than the Americans do? And why should our educators so passively accept this? But it seems that CMEC and others in the educational community are, rather, obsessed with their special educational exception for use of the Internet. There are so many more useful, less harmful and more achievable goals that the educators etc. could be pursuing....and curtailment of statutory damages ought to be at the top of the list.
BTW, Michael now essentially agrees with me on how CMEC's views are not much different than those of Access Copyright in key respects. Here's his podcast of a recent talk.