(So I'm a few days behind.)

Boingboing entry:
www.boingboing.net/2005/05/...dnt_.html

Paper location:
papers.ssrn.com/abstract_id=660601

For people who are interested but don't want to wade through it all (12k people viewed the abstract, 1.7k downloaded the paper, who knows how many fewer actually made it through to page 14 or so when the good stuff starts), here's my very brief summary.

Some years ago there was a case called BMW of North America, Inc. v. Gore where BWM was fined $4000 dollars in damages and $4 million in punitive punishment for selling a car which had been secretly repainted. An appeals court wrote that the disparity between damages and punitive awards raised "suspicious judicial eyebrow".

This paper applies that eyebrow to RIAA awards. Here are the court decision "guideposts" for deciding if a punitive punishment is warranted at all:

1) "Of the three gross excessiveness guideposts, first and most important is the reprehensibility of the defendant's conduct."

2) "The second guidepost in the determination of gross excessiveness is the ratio of the punitive damage award to the actual or potential harm inflicted on the plaintiff."
Quoth the court: "in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process."

3) "Finally, the third guidepost used to decide gross excessiveness is a comparison of the punitive damage award with the civil and criminal penalties for similar misconduct."

Then add in that the $750 in "statutory damages for copyright infringement and thereby receive a guaranteed $750 in damages, all but one dollar of which would be noncompensatory in nature." ($749 in punitive, $1 in compensory), stir with "This large punitive component is not troublesome when statutory damages are awarded for one or a few instances of illegal file-sharing. The punitive component serves as an incentive to sue, and punishment for breaking the law is quite normal. However, when a given punishment is massively aggregated across many similar instances of misconduct, the resulting penalty can become so large that it becomes grossly excessive in relation to any legitimate interest in punishment and deterrence."

The rest of the paper seems to be backing this up with lots of case citations, background on the discussion, some analysis of actual damages, etc.