Law & the Little Guy

Will the haves always come out ahead? Rebecca Tushnet’s recent post on a possible application of the Supreme Court’s excessive damages jurisprudence sparked some thoughts on some asymmetries in legal protections. First, from Tushnet’s post:

Seana Shiffrin argues that the Supreme Court’s punitive damages jurisprudence leads to the conclusion that [some credit card] late fees are unconstitutional if they’re too high, since they can only be imposed by legislative abrogations of the traditional rule against punitive damages in contract. So while others have decried the consumer protection implications of recent Supreme Court cases, she has turned the argument around against big business, much as some RIAA defendants have claimed that copyright’s statutory damages provisions are unconstitutional under the same precedents.

By the way, those statutory damages provisions could lead to a fine of up to $150,000 for one stolen song.

Two other potential angles here: will Apple’s touted ability to monitor your usage of songs on your iPod also lead it to help catch iPod thiefs? Consider this editorial, “Apple Knows Who Stole Your iPod:”

J. Alain Ferry’s website, . . . suggests that there is something Apple could do. “Apple maintains records of stolen iPod serial numbers,” the website reads. “Apple’s iTunes software records the serial number of the last connected iPod. Apple sells songs to people that enter their billing information into the iTunes software. So why isn’t Apple doing anything to prevent the sale of songs to the person with YOUR stolen iPod?”

Does Apple at least have a “non-spoliation” duty to keep information on the IP addresses of those iPods which are connected to the iTunes store after being reported stolen?

On a tangential note, might a future Supreme Court use Bush v. Gore to, say, rule that an electoral regime that requires voters in many poor areas to wait 7 hours to vote, but guarantees others the right to vote in minutes, violates the equal protection clause? This and other problems with our voting system are provocatively explored in the film Hacking Democracy.

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