P2P Defendant Tenenbaum’s $675,000 Judgment Stands on First Circuit Remand
Congress hasn’t given much leeway to P2P defendants found liable for copyright infringement, and the courts can’t reduce damages awards without threatening a separation-of-powers squabble, U.S. District Judge Rya Zobel in Boston ruled Thursday. Considering Sony v. Tenenbaum on remand from the First U.S. Circuit Court of Appeals, which scrapped her predecessor’s overturning the $675,000 jury award against Joel Tenenbaum on constitutional due-process grounds (WID Sept 20 p4), Zobel said the jury award “does not offend due process.” We couldn’t immediately reach Tenenbaum’s legal team, led by Harvard law professor Charles Nesson, for comment on its next steps in the case. Its Supreme Court petition was denied in May.
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Reducing the jury award of her own volition, known as “remittitur,” is only appropriate when the award exceeds “any rational appraisal or estimate of the damages that could be based on the evidence before the jury,” and that’s not the case here, Zobel said (http://xrl.us/bnmxge). Tenenbaum didn’t object to the jury instructions for damages, which told jurors to consider among other things “the defendant’s purpose and intent ... the revenue lost by the plaintiff” from infringement, “the defendant’s continuation of infringement after notice” from the record labels and “the need to deter this defendant and other potential infringers,” Zobel said.
The jury heard “evidence from which it could rationally conclude that the value of a blanket license to upload music recordings to the internet for public consumption would be ‘enormous,'” Zobel said. She said the jury also heard that Tenenbaum swapped songs online for at least eight years, continuing even after warnings from his father, college and Sony itself. He reinstalled his operating system and reformatted his hard drive after instructions from Sony to preserve everything, and the First Circuit found “strong evidence” that Tenenbaum lied “in a number of ways” during trial, including pinning the blame on others in his household, she said. “In short, there was ample evidence of willfulness and the need for deterrence based on Tenenbaum’s blatant contempt of warnings and apparent disregard for the consequences of his actions,” the judge said. The $22,500-per-song award was only 15 percent of the statutory maximum, and below the maximum for non-willful infringement as well, she said.
The relevant case law for deciding due process is not Gore as cited by many P2P defendants, which on its face concerns punitive damages, but Williams, which deals explicitly with statutory damages, Zobel said. She cited heavily the First Circuit’s analysis of the inapplicability of Gore to a statutory context, because “the statute itself provides notice of the scope of the potential award,” in this case the Copyright Act. The third “guidepost” in Gore, concerning the “disparity between the punitive award and comparable civil penalties,” is “wholly inapplicable” to a statutory range, and the second guidepost -- the ratio of punitive to actual damages -- doesn’t help because Congress “recognized that actual damages are extremely difficult to measure and prove in a copyright case,” Zobel said.
The Williams standard is “highly deferential,” Zobel said: “The court is also sensitive to the separation of powers issues raised by a challenge to a statutory damages range determined by Congress.” The First Circuit panel actually suggested to Congress in its remand that lawmakers reconsider the applicability of the Copyright Act’s harsh penalties to consumer infringers. Statutory damages have been available under federal copyright law since 1790 and Congress changed the damages range in 1999 “expressly ... to address behavior like that of Tenenbaum,” Zobel said: The $675,000 award “is neither ‘wholly disproportioned to the offense’ nor ‘obviously unreasonable,'” the triggers for overturning damages.