Papers: 3rd Party Copyright Liability & Punishment Aggregating

With MGM v. Grokster nearing its show down at the U.S. Supreme Court (March 29) the articles on file-sharing, and specifically the (legal) issues surrounding the Betamax doctrine, seem to be popping up more frequently. But then I might be pre-conditioned by the coming event. Two SSRN papers on the issue:

1) Sony, Tort Doctrines, and the Puzzles of Peer-to-Peer by Alfred C. Yen

Part of the abstract:

This Article analyzes and reconstructs the law of third party copyright liability as it applies to providers of peer-to-peer technology. By doing so, the Article accomplishes three things. First, it identifies doctrinal tension between broad third party copyright liability endorsed by lower courts and the Supreme Court's skepticism of such liability as expressed in Sony Corporation of America v. Universal City Studios. Second, it describes how existing interpretations of the law fail to direct judicial attention to important considerations that ought to influence the third party copyright liability of peer-to-peer providers. Third, it uses concepts borrowed from common law torts to improve the law by resolving doctrinal tension and directing judicial attention to important considerations that are presently overlooked.

2) Grossly Excessive Penalties in the Battle Against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement by J. Cam Barker

Here's the abstract:

When a minimum statutory damage award has a large punitive component, the danger arises that the award's punitive effect, when aggregated across many similar acts, will become so tremendous that it imposes a penalty grossly excessive in relation to any legitimate interest in punishment or deterrence. The substantive due process principles laid out by the Supreme Court in BMW of North America v. Gore provide a roadmap for evaluating whether an aggregated punitive effect has become unconstitutionally excessive.

The recent copyright infringement lawsuits targeting illegal file-sharing create the context in which these factual predicates exist: A statutory damage award with a substantial punitive component, a large number of like-kind violations, and fairly low reprehensibility as assessed under the relevant Gore guidepost. Thus, massively aggregated awards of even the minimum statutory damages for illegal file-sharing will impose huge penalties, and can be constitutionally infirm like the punitive damage award of Gore itself.

To clarify a bit, the second paper looks at constitutionality of how a minimum fine for a (illegally) downloaded song may result in a lawsuit of millions of dollars when all individual fines for a bunch of songs a are taken together. Something, which feels like the surrealistic practice of sentencing people to prison terms of 100+ years.