Out of more than 30,000 cases filed against downloaders by the record companies only two end-user download cases have gone to trial and judgment: the Tenenbaum case in Boston, and the case against Jammie Thomas-Rassett in Minnesota.
In the second case, the jury awarded the copyright owners $2 million for downloading (and allegedly distributing) 24 songs. The federal judge to whom the case is assigned has now lowered that amount to $2,250 per song (the legal term of the judge’s action is “remittitur”).
Some quotes from the Thomas-Rassett January 22, 2010 decision:
After long and careful deliberation, the Court . . . remits the damages award to $2,250 per song – three times the statutory minimum. The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music. . . . although Plaintiffs were not required to prove their actual damages, statutory damages must still bear some relation to actual damages.
. . . This reduced award is significant and harsh. It is a higher
award than the Court might have chosen to impose in its sole discretion, but the decision was not entrusted to this Court.
. . . Thomas‐Rasset argues that the ratio of the statutory damages award to actual damages in this case, when measured in songs, is 1:62,015. She bases this calculations on a cost of $1.29 per song online.
. . . Thomas‐Rasset asserts that, at most, she was a single mother who merely downloaded and shared music when she had already lawfully bought CDs of much of that music and had no commercial motive to infringe.
. . . The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music.
. . . The Court will not substitute its judgment for the judgment of the jury. Rather, it will remit the award to the maximum amount sustainable by the record, so that the statutory damages award is no longer shocking or monstrous.
It will be interesting to see if this decision has any impact on Judge Nancy Gertner, the federal judge assigned to the Tenenbaum case in Boston. In that case, the jury awarded $22,500 for each work infringed, and a motion for remittitur is pending.
Here is a link to the full opinion in Thomas-Rasset:
Final judgment in Sony v. Tenenbaum entered by Judge Nancy Gertner today. The 30 day appeal clock starts to run. Should be interesting to see what the First Circuit does with this one, although I suspect that the betting is heavy in favor of quick affirmance.
A few choice quotes from Judge Gertner’s opinion, which is provided in full below on scribd.com.
“the Court, deeply concerned by the rash of file-sharing lawsuits, the imbalance of resources between the parties, and the upheaval of norms of behavior brought on by the Internet, did everything in its power to permit Tenebaum to make his best case for fair use.…The Court did what it could to focus the issue, notwithstanding what can only be described as a truly chaotic defense.”
Tenenbaum “tailor[ed] his fair use defense to suggest a modest exception to copyright protections,” he “mounted a broadside attack that would excuse all file sharing for private enjoyment. It is a version of fair use so broad that it would swallow the copyright protections that Congress created, defying both statute and precedent.”
“As this Court has previously noted, it is very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written. It urges – no implores – Congress to amend the statute to reflect the realities of file sharing. There is something wrong with a law that routinely threatens teenagers and students with astronomical penalties for an activity whose implications they may not have fully understood. The injury to the copyright holder may be real, and even substantial, but, under the statute, the record companies do not even have to prove actual damage. “Repeatedly, as new developments have occurred in this country, it has been Congress that has fashioned the new rules that new technology made necessary.” … It is a responsibility that Congress should not take lightly in the face of this litigation and the thousands of suits like it.”
The First Circuit’s decision upholding the RIAA’s challenge to Judge Gertner’s decision to permit webcasting of a motion hearing in the RIAA v. Tenenbaum case was issued on April 16, 2009, very shortly after oral argument.
The First Circuit, interpreting a D. Mass. Local Rule, held that U.S. District Judge Nancy Gertner’s interpretation of the local rule concerning photographing recording and broadcasting of courtroom proceedings was “palpably incorrect”.
This result is quite disappointing for many people who had hoped that the First Circuit would hold that Massachusetts District Court Judges have have the discretion to webcast court proceedings in their courtrooms, and that this would be a first step toward allowing the public to view federal district court civil proceedings. The decision will, many hope, lead to a change in the pre-Internet Age Rule that was found to prohibit the webcast.
has filed a most unusual “expert witness report” in the Tenenbaum case. This will surely raise some novel admissibility issues under Daubert/FRE 702 standards. And that, constant readers, is the understatement of the day. More surprises to come from the Nesson/HLS defense team, I have no doubt.
As everyone in the copyright law community knows by now, Harvard Law School Professor Charles Nesson, and a team of HLS students, are defending Joel Tenenbaum in an RIAA action. Nesson’s primary argument is that the copyright statute’s statutory (aka punitive) damages of as much as $150,000 per infringement is unconstitutional, least as applied to Tenenbaum who downloaded seven songs for personal use, not profit. Over $1 million in damages ($150,000 x 7) seems a bit much for such a violation, and Nesson argues that punitive damages of this magnitiude are unconstitutional.
Apart from the legal issue raised by Professor Nesson, this case has a great deal of humor in it, not the least of which is that Nesson and company are defending Joel Tenenbaum. This is kind of like picking on a little kid on the playground, who then shows up with The Hulk, who just happens to be his big brother and refuses to go away until he’s fought the bully to the death. Oh, and Nesson’s team is “immortal” for all practical purposes – I suspect there’s nothing that Nesson would like more than to take the constitutional challenge to the Court of Appeals and then the Supreme Court. I doubt that the RIAA ever expected this, but they can’t exactly back down at this point. I hope to write about this case it in more detail in a future post, and highlight some of the bizarre turns the case has taken with Nesson guiding Tenenbaum’s defense.
A great blog that is following this case in more detail than I could ever have thought possible is Ben Sheffner’s Copyrights and Campaigns.