Tuesday, March 3, 2009

Podcast explores heart of Tenenbaum case: are statutory damages constitutional?

UCLA Law Professor Doug Lichtman has posted the latest installment of his "Intellectual Property Colloquium" series of podcasts, a fascinating hour-long discussion titled "Statutory Damages and the Tenenbaum Litigation." The discussion focuses on the true substance of Harvard Law Professor Charles Nesson's defense of accused peer-to-peer infringer Joel Tenenbaum in federal court in Boston and features separate interviews with Nesson, RIAA General Counsel Steven Marks, and three law professors with deep knowledge of the Supreme Court's jurisprudence on the constitutional limits of punitive damage awards.

The discussion sticks to what will likely be the heart of the case (once all the wackiness about webcasts, depositions of opposing counsel, and recording phone calls is put aside): is the Copyright Act's statutory damages scheme unconstitutional, at least as applied to an individual like Tenenbaum?

Nesson eschews the wackiness that has marked his litigation tactics in this case and makes a quite measured argument why it would be unreasonable and unconstitutional to impose statutory damages of up to $150,000 per song on Tenenbaum when, in his view, the only "damage" sustained by the labels was the retail cost of a download (about $1 per song).

The law professors (Catherine Sharkey of NYU, Dan Markel of Florida State, and Thomas Colby of GW) express some sympathy for Nesson's arguments, but conclude that they are unlikely to prevail under current law.

And the RIAA's Marks emphasizes that, while unpopular, the labels' litigation against individuals like Tenenbaum has served the valuable purpose of dramatically increasing public awareness of the illegality of using p2p services to upload and download copyrighted works. Marks also makes the point that the correct question to ask in measuring the litigation's success is not "Did it stop piracy?" but instead "Would piracy have been worse today had the cases never been filed?"

Definitely worth listening to the full hour.

For those not familiar with the issues, I suggest reading the following before listening:


  1. I must concur with your view that the audio presentation is very informative and well worth the time spent listening to it. Mr. Lichtman is performing a valuable service, and I hope it does not go unnoticed by others who may be in a position to follow his lead.

  2. Hum. "Would piracy have been worse today had the cases never been filed?"

    Probably there would have been less of it. That's what economics tells us, anyway -- suing your customers is a good way to discourage sales.

  3. Incidentally, there's clearly something wrong with current law if it actually allows private parties to demand "statutory damages" vastly in excess of actual damages (by factors in the hundreds of thousands and possibly infinite) without meeting the criminal law standards of proof. "A criminal case conducted by civil rules" is an accurate description and I really have no idea how to respect any legal system which allows it.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.