Tennenbaum
From CyberOne Wiki
we will get motions to dismiss our counterclaims:
Contents |
abuse of process -- unconstitutional excessiveness of statutory damage
Gary Becker, Crime and Punishment
In his seminal analysis of the economics of crime, Professor Gary Becker revolutionized thinking on criminal behavior by arguing that, in contrast to the prevalent view, most criminals make rational decisions to commit crime based on expected utilities. 71
Becker's view implied that punishments should be made exceptionally severe, so as to reduce the expected utility of crime. 72 Refining Becker's argument, Professor George Stigler introduced the notion of marginal deterrence. 73
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In a famous paper published in 1968, Gary Becker argued that, ignoring administrative costs, the optimal penalty applied to an offender is equal to the harm inflicted, [*425] divided by the probability of apprehension. 13
See Becker, supra note 3, at 192. More precisely, Becker concluded that the optimal penalty should internalize the "marginal social harm plus the marginal enforcement cost." In the routine case in which the marginal social harm is equal to the victim's loss, Becker's conclusion is equivalent to requiring the offender to pay a penalty equal to the victim's loss divided by the probability of punishment plus the marginal enforcement cost. For this formulation of the penalty, see A. Mitchell Polinsky & Steven Shavell, Enforcement Costs and the Optimal Magnitude and Probability of Fines, 35 J.L. & ECON. 133, 135-39 (1992).
what are the legal limits on the severity of punishment to reduce the expected utility of behavior
n71. Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. Pol. Econ. 169, 176 (1968) (stating that "a person commits an offense if the expected utility to him exceeds the utility he could get by using his time and other resources at other activities").
n72. See id. at 208-09 (implying that harsh punishment decreases the utility of crime and enhances deterrence).
n73. See George J. Stigler, The Optimum Enforcement of Laws, 78 J. Pol. Econ. 526, 527-28 (1970) (setting forth the idea of marginal deterrence, that suggests that since harsh punishments may deter crime, petty offenses should not be subject to the same punishment as larger crimes, lest offenders who weigh the relative punishment might choose the worse crime).
BMW punitive damage case
517 U.S. at 559. The three guideposts enumerated by the Court were: 1) "the degree of reprehensibility of the defendant's conduct," id. at 575; 2) the awards "ratio to the actual harm inflicted on the plaintiff," id. at 580; and 3) a comparison of the "punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct," id. at 583.
the amount and the multiplier per infraction set in 1978, prior to internet which changed the scene by orders of magnitude; makes the ranges wildly punitive, way beyond the punitive damage limits articulated in the supreme court's puniti8ve damage cases.
jury trial on all issues including the amount of damages
Feltner
523 U.S. 340, 347
The right to a jury trial includes the right to have a jury determine the amount of statutory damages, if any, awarded to the copyright owner. ... For the foregoing reasons, we hold that the Seventh Amendment provides a right to a jury trial on all issues pertinent to an award of statutory damages under § 504(c) of the Copyright Act, including the amount itself. (Emphasis in original)
Feltner gives a right to jury trial on the amount of the damages what will the jury be told; will they be told of the statutory damage range? why?
how can one harmonize the jury trial right for the jury to judge the total damages with even the existence of statutory damage
what issues are relevant to damages under feltner when a copyright owner opts for statutory
nimmer: Eight justices of the United States Supreme Court have now determined that Congress did not allow for juries to be appointed under Section 504(a), which is therefore unconstitutional; one might thereupon conclude that an award of statutory damages cannot ever be invoked now against a defendant who demands her right to a jury trial. For with the invalidation of Section 504(a), no other vehicle remains under the Copyright Act by which to award statutory damages.99.10 Under that reading, the upshot of Feltner v. Columbia Pictures Television, Inc. would be to require Congress to amend the Copyright Act if it wanted to retain within the copyright owner's arsenal a meaningful device of securing an award of statutory damages.
But in the topsy-turvy world of the Seventh Amendment, a finding that a statute is unconstitutional typically does not render it inoperative. Whenever the Supreme Court has determined that the particular statute under examination does not accord the right to a jury but the Seventh Amendment so requires in that type of case, the same pattern recurs: Notwithstanding that the Court holds the enactment of Congress unconstitutional, the statute itself goes on functioning.99.11 The lower courts simply empanel a jury to adjudicate the particular cause of action for which Congress never contemplated such a right.99.11a
Therefore, although the Court admits that Congress never authorized jury-determined statutory damages, the reality is that Seventh Amendment jurisprudence in general is distinguished by its lack of concern for Congressional intent when it comes to supplying a right to a jury trial. Once the Court finds that the statute does not grant the right to a jury trial, the issue of whether Congress wanted to limit the cause of action it created to a non-jury context simply does not matter. As one Seventh Amendment case has stated, in justification for its decision not even to consider whether the statute grants a right to a jury trial, the necessityfor jury trial is so clearly settled by our prior Seventh Amendment decisions that it would be futile to spend time on the statutory [interpretation] issue, particularly since our result is not to invalidate the ... act but only to direct that a certain form of procedure be employed in federal court actions under ... [the act].99.12 That commentary, contained in a footnote, is the clearest extant justification given by the Court in the last twenty-five years for why the Seventh Amendment does not invalidate statutes.
Yurman: 93 F. Supp. 2d 449, (2000)
. Statutory Damages
PAJ has challenged the jury's award of $ 275,000 in statutory damages to Yurman Design on its copyright [**34] claims. Those damages are improper, PAJ claims, because they are not reasonably related to the harm suffered by Yurman Design as the result of PAJ's infringement. PAJ notes in this regard that the jury was not presented with any evidence of actual damages suffered by Yurman, and that the total amount of profit earned by PAJ on the entire line of jewelry subject to Yurman's [*462] claims in this lawsuit was only $ 19,000. Even assuming, arguendo, that this $ 19,000 figure constituted PAJ's profits on specific pieces ultimately found to be infringing, PAJ claims, the jury's award gives Yurman Design an undeserved windfall.
Under the Copyright Act, a copyright holder may elect to recover either "actual damages and profits, 17 U.S.C. § 504(b), or "statutory damages" pursuant to 17 U.S.C. § 504(c). As the jury was instructed, statutory damages of not less than $ 500 and not more than $ 20,000 per copyright infringed may be imposed, though where the copyright owner sustains its burden of demonstrating that the infringement was willful those damages may be enhanced in an amount up to $ 100,000 per copyright infringed. See 17 U.S.C. § 504 [**35] (c)(1)-(2); Blue Ribbon Pet. Prods., 1999 WL 739461, at *8. At trial, Yurman Design elected to seek statutory damages, and the jury was provided instructions concerning such damages. 5
FOOTNOTES
5 It is worth noting that the question of statutory damages was put to the jury, rather than decided by the Court, given the Supreme Court's decision in Feltner v. Columbia Pictures Television, 523 U.S. 340, 118 S. Ct. 1279, 1288, 140 L. Ed. 2d 438 (1998) (holding that "the Seventh Amendment provides the right to jury trial on all issues pertinent to an award of statutory damages under § 504(c) of the Copyright Act, including the amount itself").
Between these two extremes, however, the jury has broad discretion. See D.C. Comics Inc., v. Mini Gift Shop, 912 F.2d 29, 34 (2d Cir. 1990); Dumas v. Dagl, 1990 U.S. Dist. LEXIS 18135, *19, No. 88 Civ. 2293 (LBS), 1990 WL 258343, at *4 (S.D.N.Y. May 22, 1990); Video Aided Instruction, Inc. v. Y & S Express, Inc., 1996 U.S. Dist. LEXIS 18477, No. 96 CV 518 CBA, 1996 WL 711513, [**36] at **3-4 (E.D.N.Y. Oct. 29, 1996). While evidence of actual damages has been looked to as a "springboard" for determining statutory damages, see Dumas, 1990 WL 258343, at *5, courts have also looked to a variety of other factors when considering a plaintiff's entitlement to statutory damages, such as a defendant's profits, the defendant's cooperation in providing records, and the demands of deterrence. The regime of statutory damages designed by Congress "not merely compels restitution of profit and reparation for injury but also is designed to discourage wrongful conduct." N.A.S. Import, Corp. v. Chenson Enters., Inc., 968 F.2d 250, 252 (2d Cir. 1992).
That evidence concerning actual damages, such as lost profits, was not submitted by Yurman does not preclude its recovery of statutory damages. Statutory damages have been made available to plaintiffs in infringement actions precisely because of the difficulties inherent in proving actual damages and profits, as well as to encourage vigorous enforcement of the copyright laws.
In this case, the jury found PAJ's infringement to be willful, and a determination of statutory damages in the amount of [**37] $ 275,000 was not beyond their authority. Given its finding of willfulness, the jury could reasonably conclude that an award of that size was required to serve as both a specific and general deterrent to future infringement. See Video Aided Instruction, 1996 WL 711513, at *4 (awarding statutory damages in the amount of $ 40,000 per infringement, despite fact that plaintiffs' lost revenue and defendants' profits from sale of infringing works remained uncertain). But see Infinity Broadcasting Corp. v. Kirkwood, 63 F. Supp. 2d 420, 1999 WL 706065, at *7 (S.D.N.Y. 1999) (finding award of statutory minimum to be in order, given that plaintiff was not actually harmed by infringement, defendant had a well considered position that his activities did not constitute infringement, and there was no reason to suppose that substantial award was necessary for general or specific deterrence).
