Human Property

Are hundreds of thousands of dollars in damages or even permanent restriction of internet access appropriate responses to illegal online file-sharing?  What’s fair in these circumstances?

As we all start to do more things on the internet — and have access to much more creative content via the internet — these questions start to become very interesting.

To date, only two file-sharing cases have gone to trial and resulted in verdicts.  In both cases, the defendants were found liable for copyright infringement and were subject to up to millions of dollars in damages.

In the first file-sharing case, a Minnesota jury decided last summer that Jammie Thomas-Rasset was liable for $1.92 million for the infringement of 24 songs.  This amounts to $80,000 a song.

The nation’s second file sharing defendant, Joel Tannenbaum, is now asking his court for a retrial, or to reduce the $675,000 award related to the infringement of 30 songs.  This amounts to $22,500 a song.

It’s totally up to the jury to decide how much to award in damages.  The Copyright Act permits damage awards anywhere from $750 to $150,000 per infringement.  In instances of “innocent infringement,” damages can be reduced to $200, but even then, something has to be paid.  Copyright infringement is a strict liability offense.

In light of the fact that songs today can be downloaded for $1 off of iTunes, is an award of $80,000 per song for infringement reasonable?  The damage awards, on their face, would strike the casual observer as punitive, perhaps made for their deterrent effect as opposed to restitution for the infringement.

Unfortunately for these defendants, they face an uphill battle in getting a judge to reduce the verdicts.  The Copyright Act expressly permits damage awards to go into the hundreds of thousands of dollars, so it would be difficult to argue a deprivation of due process based on any lack of notice.  We’ve all seen those FBI warnings every time we rent a movie.

Then again, the Supreme Court has placed limits on punitive damage awards based on similar principles.  Even in cases where a company knew it was polluting a town’s water supply or knowingly manufacturing shoddy products, punitive damage awards are limited because due process demands some restriction on damages.   The Supreme Court has held that “few awards exceeding a single-digit ratio between punitive and compensatory damages…will satisfy due process.”  State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003).

Ultimately, the best recourse would be for Congress to modify the Copyright Act and reduce damages in cases of file-sharing so that the punishment can better fit the crime, so to speak.  But here, too, there are forces seeking even more draconian punishments, including the restriction of internet access for repeat offenders.  Such a law has just come into effect in France, and it may be only a matter of time before industry groups lobby for a similar measure in the United States.

Would Americans be okay with a law depriving people of internet access in instances where someone was repeatedly found liable for copyright infringement?  How comfortable are Americans with the idea that profit derived from creative works should trump the value associated with access to the internet?

Is access to the internet a civil right?  Are we entitled to the internet merely on account of citizenship?

In the United States this might be akin to asking whether cable TV is a civil right.  It just seems like an odd question to ask.

But other countries have taken this question seriously, and in many instances have concluded that access to the internet is a basic right.

This past October, Finland became the first country to declare high speed internet access a legal right.  The Finnish law requires that by 2015, every Finn must have internet access equivalent to 100 mb per second.

In June, a top French court declared access to the internet a basic human right guaranteed by the Declaration of Human Rights.  As such, the French court held that it was impermissible for France to deny internet access to individuals who were merely accused (but not convicted) of online piracy.

Estonia, a small Baltic country that borders Russia, passed legislation close to 10 years ago declaring internet access as a fundamental human right.

Will the United States follow suit with these other countries?  Congress seems unlikely to pass any type of law law guaranteeing internet access; there just didn’t seem to be any pressure or reason to do so.  As in France, the issue would probably come up before a court.  Here are a few hypotheticals that might lead a court to consider this question:

• Illinois is currently pondering a law that would ban registered sex offenders from accessing “social-networking Web sites“.  Would such a ban be constitutional?  Can a state prohibit people from accessing information and websites online?  Would this be an illegal restraint on the First Amendment’s guarantees of freedom of expression, or freedom of association?  The First Amendment guarantees people the right to say what they want in public forums subject only to time, place and manner restrictions.  Is the internet a public forum?  Or is it akin to a private mall which can kick you out at any time?  Answering this question may require a technical analysis as to who “controls” the internet — is it a private or government function?

• In addition to First Amendment issues, are there potential legal issues on account of the Equal Protection Clause?  The Equal Protection Clause of the 14th Amendment (passed after the Civil War) provides that all Americans are entitled to equal protection of the law:  no single group can be unfairly singled out for exclusion from constitutional rights.  Would the Illinois law present a case of an unfair restriction of a group of people without any rational basis?  It may seem unlikely that the Supreme Court would protect sex offenders from exclusion, but just a few years ago the Supreme Court held that a Colorado law which deprived gay people of legal rights was grossly unconstitutional as it unfairly targeted a group of people from protection of the law (Romer v. Evans, 517 U.S. 620 (1996)).

• Let’s assume that the Illinois law passed constitutional muster.  Could Illinois take the next step and ban all internet access for registered sex offenders?  The same First Amendment and Equal Protection Clause issues would appear to present themselves once again, but with greater force.  Let’s further assume that a court would OK restrictions on sex offenders to access the internet — can a state then restrict internet access for other groups?  Could a state pass a law barring convicted terrorists from accessing the internet?  How about alleged terrorists?  Many states already restrict convicted felons from voting and possessing hand guns — deeply fundamental rights in America.  Even if internet access were a fundamental right, it would seem internet restrictions caused by convictions might pass constitutional muster.  Is this right?

• Here’s another hypothetical that may be a reality before long.  Suppose the RIAA is able to successfully lobby Congress to pass a “three-strikes” bill that requires internet providers to restrict internet access to individuals who have been caught pirating materials at least three times.  Would it be constitutional to restrict internet access across the board to convicted online pirates?  This was the issue before the French court in June, and it found that that the law as written was too broad because it deprived people of judicial review.  If a jury finds you guilty three times of online piracy, can you be banned from accessing the internet for good?