Techdirt points out that the EFF is examining the constitutionality
of the recent $1.9 million verdict awarded in favor of the RIAA against Jammie Thomas. While on the surface it may seem that this excessive award should be easy to overturn since grossly excessive punitive damage awards are considered to violate the Due Process clause of the US Constitution, the Supreme Court seems to have been ignoring precedent and upholding copyright's importance at any cost. "Given the size of the statutory damages award, Ms. Thomas-Rasset's legal team will likely be seriously considering a constitutional challenge to the verdict. A large and disproportionate damage award like this raises at least two potential constitutional concerns. First, the Supreme Court has made it clear that 'grossly excessive' punitive damage awards (e.g., $2 million award against BMW for selling a repainted BMW as 'new') violate the Due Process clause of the US Constitution. In evaluating whether an award 'grossly excessive,' courts evaluate three criteria: 1) the degree of reprehensibility of the defendant's actions, 2) the disparity between the harm to the plaintiff and the punitive award, and 3) the similarity or difference between the punitive award and civil penalties authorized or imposed in comparable situations. Does a $1.92 million award for sharing 24 songs cross the line into 'grossly excessive?' And do these Due Process limitations apply differently to statutory damages than to punitive damages? These are questions that the court will have to decide if the issue is raised by Ms. Thomas-Rasset's attorneys."