Nesson admits: Tenenbaum 'downloaded music for...own enjoyment'

Harvard Law School Professor Charles Nesson has conceded in a letter to the US Department of Justice that his client, accused peer-to-peer infringer Joel Tenenbaum, "downloaded music for [his] own enjoyment." That admission will certainly help the record label plaintiffs prove their affirmative case against Tenenbaum; paragraph 13 of the labels' complaint alleges that he "download[ed]" songs in violation of their exlcusive rights to reproduce and distribute the songs at issue. And courts have made clear that unauthorized downloading by means of p2p software constitutes copyright infringement. See, e.g., BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005) ("people who post or download music files are primary infringers."); In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003), A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). Nesson's concesssion also appears to contradict his client's own Answer, which states in paragraph 13:

Defendant denies that he used or continued to use an online media distribution system to download the Copyrighted Recordings...

I suppose Tenenbaum can still attempt to deny that KaZaA or the Internet are "online media distribution system[s]," or that whatever he downloaded were the "Copyrighted Recordings" alleged in the complaint, but his attorney has now clearly conceded the "download" part.

The main purpose of Nesson's letter, though, was not to help the plaintiffs prove their case. Rather, it was to ask DOJ to

intervene in Joel's case on behalf of the people of the United States of America to save the Constitutionality of Section 504(c) by interpreting its damage provision for willful infringement to apply only to commercial infringers. If applied to an individual such as Joel, who has made no commercial use of plaintiffs' copyrights, the statute violates the Constitution.

Even anti-label litigator Ray Beckerman thinks Nesson has taken the wrong approach in his letter. Writes Beckerman:

For the life of me, I can't understand why the letter is limited to "willful" infringement. That is like conceding that $750 to $30,000 is OK. (!!!???) A letter like that could do more harm than good.

In any event, it's exceedingly unlikely that DOJ will intervene to concede the unconstitutionality of any part of the statutory damages scheme. If anything, DOJ would intervene to defend the statute. In late 2007, DOJ filed a brief in the Capitol v. Thomas case that constituted a strong defense of statutory damages against a constitutional challenge:

Under the constitutional test adopted by the Supreme Court, an award of statutory damages satisfies the demands of the Due Process Clause as long as it is not “so severe and oppressive as to be wholly disproportioned to the offense or obviously unreasonable.” St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 67 (1919). Accordingly, given the standard articulated by the Supreme Court, the statutory damages provision for copyright infringements easily withstands constitutional scrutiny. Statutory damages for copyright infringements have existed in some form dating back to before the ratification of the Constitution. Congress acted reasonably in crafting the current incarnation by ensuring that it serves both a compensatory and deterrent purpose. Congress established a damages range that provides compensation for copyright owners in a regime in which actual damages are hard to quantify. Furthermore, in establishing that range, Congress also took into account the need to deter the millions of users of new media from infringing copyrights in an environment where many violators believe that they will go unnoticed. Accordingly, the statutory range specified by Congress for a copyright infringement satisfies due process.

As I recently wrote, "Administrations of all political persuasions defend the constitutionality of all federal statutes, unless there is no plausible legal argument for doing so -- a principle President Obama's choice for Solicitor General [Nesson's former boss Elena Kagan] recentlyembraced with enthusiasm. Even if one disagrees with the availability or amount of statutory damages, to assert that there is no plausible legal argument in their constitutional defense is frivolous." I highly doubt Nesson's letter will change this calculus.