There have been a number of stories about yesterday's jury verdict in Minnesota, awarding $220,000 in statutory damages. The best reporting I have seen so far is by Declan McCullagh at CNet.com, here. As he points out, there were some key factual issues and key jury instructions. On the facts, there was a match between a username, an email address, and an IP address. Here are two critical jury instructions:
JURY INSTRUCTION NO. 14: The act of downloading copyrighted sound recordings on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive reproduction right.
JURY INSTRUCTION NO. 15: The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown.
The making available instruction is obviously of great importance.
I have read stories in which people have questioned the amount of damages, which is a bit more than $9,166 per work and well within the non-willfulness range. I would be stunned if there is any room for overturning the award. There is serious doubt that any award within the permissible range, even the tippy-top, is subject to review. I think there may well be cases where a damage award may be constitutionally flawed, but this is not one of them. This is not to say I think the jury should have awarded anything above the minimum after finding liability, but it is to say the jury was free to award that amount and even a more without review, and especially given the vastly larger number of works for which there was