On 10/31/2014 Washington Eastern District Judge Thomas Rice decided not to sanction copyright trolls Maureen VanderMay, David Lowe and Carl Crowell in Elf-Man v. Lamberson (WAED 13-cv-00395), yet he granted the defendant’s attorney fees (the amount is yet to be determined). On the same day Judge Rice ruled on the motions for default judgments in two APMC-driven cases: Elf-Man, LLC v. Does 1-29 (WAED 13-cv-00115 — the case Lamberson was spawned from) and a very similar copyright shakedown case The Thompson Film, LLV v. Does 1-35 (WAED 13-cv-00126):

• Elf-Man order
• Thompson order

In these two cases the plaintiff requested $30,000 from each of the 11 defendants who failed to answer to the complaints. This would result in $330,000 — a 14x return on the $23,700 investment ($700 in filing fees plus $23,012.57 attorney fees as costs, as determined by the judge).

This request was not granted: while the judge couldn’t simply deny default judgments as the defendants were properly served, he awarded just the allowed minimum to the trolls: $750 per defendant (plus $2,250 in attorney fees).

Similar to the Lamberson ruling, these two orders are both bad news and good news. I’m utterly disappointed by the judge’s unwillingness to address the stink of abuse these lawsuits exude: in the first order (embedded below) trolls’ dances around the truth were taken for granted, and Lamberson’s attorney’s well-pled accusations were brushed off. Even the fact that Ms. VanderMay defrauded the court by filing a forged declaration of Darren Griffin was not mentioned at all.

At the same time, these orders addressed the issue I’ve been bringing up for three years — that insanely high statutory damages run afoul of the Eighth Amendment to the US Constitution. I’m sure I was not first to point to the obvious: for example, Stephan Kinsella argued against excessive fines in copyright. Yet to the best of my knowledge, this is the first time a federal judge brings this topic in a mass Bittorent case¹.

This Court finds an award of $30,000 for each defendant would be an excessive punishment considering the seriousness of each Defendant’s conduct and the sum of money at issue. Although Plaintiff contends the minimal revenue lost from each Defendant’s single transaction does not account for the extent of damages, this Court is unpersuaded that the remote damages — “downstream revenue” and destroyed plans for a sequel due, in part, to piracy — justify an award of $30,000 per defendant, even in light of the statute’s goal of deterrence. Instead, this Court finds Plaintiff has not made a showing justifying damages in excess of the statutory minimum. Accordingly, the Court, within its “wide latitude” of discretion, grants Plaintiff the minimum statutory award of $750 against D. & B. Barnett, jointly and severally and $750 against each remaining defaulted Defendant in the case.

In the footnote, Judge Rice further explains:

In Austin v. United States, the Supreme Court held that the Excessive Fines Clause of the Eighth Amendment applies in civil, not just criminal, proceedings. Austin v. United States, 509 U.S. 602 (1993). As the Court explained, the purpose of the Eighth Amendment is to limit the government’s power to punish, and “civil sanctions that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.” Id. at 607-09 (applying the amendment to civil forfeiture proceedings). Undoubtedly, the statutory damages imposed for violation of copyright infringement are intended to serve a deterrent purpose, see e.g., Nintendo of Am., Inc. v. Dragon Pac. Intern, 40 F.3d 1007, 1011 (9th Cir. 1994) (recognizing the punitive and deterrent effect of the Copyright Act’s statutory damages), and thus can properly be characterized as punishment.²

Proportionality of punishment is the cornerstone of any civilized society. I can’t imagine anyone to disagree with this statement. I want to look into the eyes of an individual that claims that sharing a $20 movie warrants a fine that may result in abandoning college education or losing a house.

And yet the travesty continues.

I’m saddened and tired of observing a huge moral blind spot this country developed regarding the insanity (and unconstitutionality!) of civil fines in copyright cases. The astronomical numbers currently serve the sole purpose of threatening alleged infringers in order to wrestle them into paying a ransom. The law, created in pre-digital age to combat large-scale commercial infringement, was perverted by greedy crooks with opaque eyes. Unless the statutory damages are not abolished or at very least drastically reduced for non-commercial infringement, the international troll Mafia will continue destroying people’s lives.

Coverage

• TorrentFreak: Court: $30,000 for Sharing a Pirated Movie is Excessive Punishment
• Consumerist: Judge: $30K Penalty For Pirating Movies Is “Excessive Punishment”

Followups

• Defendant in Elf-Man v. Lamberson was awarded $100K in attorney fees
• A Washington nonprofit aims to unveil copyright trolls’ dirty secrets

¹ In Sony v. Tenenbaum, Judge Nancy Gertner in 2010 cut a jury’s damage award against the defendant from $675,000 to $67,500, saying it was “unconstitutionally excessive” and “wholly out-of-proportion,” but this decision was later reversed by the First Circuit, and the Supreme Court declined to hear an appeal.

² Furthermore, the judge compares Kafkaesque civil fines with the criminal copyright infringement liability, and this comparison (again, to the best of my knowledge) is unprecedented in a Bittorent case ruling:

As a comparator, if one of the named Defendants was found criminally liable under 17 U.S.C. § 506 for the same act of infringement, i.e., infringement in an amount less than $2,000, the U.S. Sentencing Guidelines recommend a fine between $1,000 and $10,000. USSG §§ 2B5.3, 5E1.2. Further, if that Defendant were to plead guilty with contrition, the fine would be reduced to a range between $500 and $5,000. Id § 5E1.2