Tenenbaum and Statutory Damages

Monday, July 12, 2010 at 01:52 PM

I've been thinking about the implications of Judge Gertner's ruling in Sony v. Tenenbaum, and have had the good fortune to discuss it with copyright expert Thinh Nguyen. One unexpected effect of the decision, I believe, will be to increase the cost of copyright litigation, perhaps significantly. Judge Gertner employs the Supreme Court's Due Process rulings on damages, especially punitive damages, to hold that there must be some relation (how close a relation, we're not sure) between actual damage / actual harm, and the amount of statutory damages awarded. This is problematic, for two reasons.