‘Tenenbaum’ P2P Jury Let ‘Hardcore’ Infringer Off Easy, RIAA Tells Judge
P2P defendant Joel Tenenbaum was lucky to get hit with a damages award on the “very low end” of the range provided by the Copyright Act, RIAA told U.S. District Judge Rya Zobel in Boston. The case, now in its fifth year and second judge, went back to trial court after the 1st U.S. Circuit Court of Appeals overturned the first judge’s reduced damages against Tenenbaum to $67,500, from the jury’s original $675,000, or $22,500 for each of 30 recordings infringed. Tenenbaum told Zobel she couldn’t constitutionally award anything more than the minimum $750 per infringed work under the Copyright Act, and argued that juries shouldn’t decide awards of statutory damages at all (WID Jan 5 p1).
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The Obama administration also filed a brief with Zobel, arguing that the jury award should be evaluated under the Supreme Court’s “highly deferential” Williams standard for statutory damages, not the stricter Gore standard for punitive damages as Tenenbaum had requested. But in a notable departure from RIAA, the administration said Zobel must first consider whether common-law remittitur -- the judge offering RIAA a reduced damages award or a new trial -- is appropriate.
Tenenbaum was “a long-term, hardcore, and willful” infringer who only admitted wrongdoing “after years of lies and deceit” at trial, RIAA told Zobel in a memorandum of law. The group agreed with Tenenbaum that common-law remittitur isn’t appropriate, “in light of Tenenbaum’s repeated vows to appeal any amount of statutory damages awarded in this case,” which would only prolong RIAA’s injury. The Supreme Court has ruled that judges can’t substitute their own conception of what is “just” for the jury’s award as long as it’s within the statutory range, in this case up to $150,000 per willfully infringed work, RIAA said. The jury properly penalized Tenenbaum for his 10 years of downloading and uploading, which “amounted to the exercise of a blanket worldwide license” for the major labels’ music, which carries “enormous” value, the filing said. RIAA pointed to two much-larger jury awards in another long-running P2P case, Capitol v. Thomas-Rasset in U.S. District Court in Minneapolis, as evidence that there was nothing “aberrational” about the award against Tenenbaum. Those jury awards, however, were also thrown out by the presiding judge as excessive (WID July 25 p5).
The Gore punitive-damages standard “reflects entirely different concerns” than those for statutory damages, namely “the unbounded nature of punitive damages and the resulting lack of notice” to the defendant, RIAA said. A statutory award “often reflects the legislature’s determination that any amount of damages tied to actual or provable harm would bear an insufficient relationship to ’the interests of the public, the numberless opportunities for committing the offense, and the need for securing uniform adherence to’ law,” RIAA said, quoting from the Supreme Court’s Williams decision. But even under Gore the jury award would fit, the filing said: Tenenbaum’s long-running P2P sharing was “unquestionably reprehensible” and, because the songs he shared were available to “millions” of other P2P users, it deprived the major labels of “literally immeasurable profits."
The $22,500-per-work jury award against Tenenbaum is even historically low, once inflation is taken into account, RIAA said, pointing to the statutory range of $250 to $5,000 provided by the 1909 Copyright Act. It said now-retired Judge Nancy Gertner, who first tossed out the jury award on constitutional grounds, erred in ruling that Congress didn’t mean to include noncommercial personal sharing. Congress raised the statutory damages limit following the Internet’s commercial advent “for the specific purpose of combating pervasive Internet infringement,” which it determined was “every bit as detrimental as -- if not more detrimental than -- other forms” of infringement, RIAA said.
Zobel can only consider Tenenbaum’s constitutional challenge only if she determines the jury award wasn’t excessive under the remittitur standard, the Obama administration said in its intervenor brief. Congress hasn’t indicated in any Copyright Act update since the Supreme Court’s Feltner decision, which instituted the option of jury trial for copyright infringement damages, that lawmakers “intended to eliminate or override the common law remittitur doctrine” in such cases. But if Zobel doesn’t find the jury award excessive, the Williams standard is appropriate for reviewing the award, the administration said, largely echoing RIAA’s argument that statutory damages provide advance notice to defendants of their potential liability for copyright infringement and limit jury discretion.