Wednesday, April 15, 2009

Why Joel Tenenbaum may never meet a jury

Most observers of the Joel Tenenbaum case -- myself included -- have been proceeding as if there will be a trial -- maybe even a "spectrial" -- this summer. But a new filing in one of the record labels' cases against another individual accused peer-to-peer infringer is a useful reminder that Tenenbaum may never get to test his fair use or nullification defenses on an actual jury.

The new filing is the labels' motion for summary judgment in Lava Records LLC v. Audrey Amurao. For the non-lawyers, summary judgment is a procedure by which a judge can declare a winner without the need for a trial, where there is no dispute over the material facts, and the evidence establishes that the moving party is entitled to judgment as a matter of law. Usually it is the defendant who moves for summary judgment, but a plaintiff can avail itself of the procedure as well. The labels have previously won at least one important individual p2p case on summary judgment. See BMG Music v. Gonzales, 430 F.3d 888 (7th Cir. 2005) (affirming grant of summary judgment to plaintiffs).

The Seventh Circuit in Gonzalez held that a court may award the plaintiff statutory damages on summary judgment -- but only if the plaintiff opts for the minimum of $750 per work. Thus in that case, the court of appeals affirmed an award of $22,500 in damages under 17 U.S.C. §504(c) for infringement of 30 works. In Amurao, the labels are once again asking that minimum statutory damages of $750 per work be awarded, on 34 works, for a total of $25,500. (The plaintiffs say that they identified 79 specific infringed works, and "potentially hundreds" more, but chose to proceed on only 34.)

Will the labels win summary judgment in Amurao? They base their motion on computer forensics and deposition admissions by the defendant; it's hard to say whether that evidence will be sufficient (and undisputed) without knowing Amurao's arguments and evidence in opposition (which hasn't been filed yet). And will the plaintiffs in Tenenbaum file a similar summary judgment motion? I have no way of knowing for sure, but they certainly have their own forensic evidence and deposition admissions (not to mention Tenenbaum's own attorney's admission).

And though Tenenbaum's team constantly refers to the maximum statutory damages of $150,000 per work, that number has always been more about their PR scare tactics than a remotely plausible actual award. The labels have never said they will seek $150,000 per work. As the summary judgment proceedings in Gonzalez and Amurao demonstrate, their practice at that stage is apparently to seek the minimum amount of statutory damages -- not the maximum. And in Capitol v. Thomas, the one individual p2p case that has gone to trial, the labels never asked for a specific amount (see pages 605-06 of the trial transcript); the jury arrived at $9,250 per work on its own (a total of $222,000 on the 24 works on which the labels proceeded). (The verdict in Thomas was later overturned for a reason unrelated to the damages award.)

Again, I don't know whether the labels will move for summary judgment in Tenenbaum, or, if they do, whether they will win. But I think there's a much greater chance of that happening than of a jury awarding the kind of million-dollar statutory damages award that Tenenbaum's team has been touting in an obvious bid for sympathy.

(h/t Recording Industry vs. The People)


  1. Mr Sheffner, do you mind to explain why you feel that it is "an obvious bid for sympathy" when the counsel team for a defendant simply state(*) what the current range of statutory damages at maximum provides for each 99 cent retail price song?
    Do you feel ashamed that the Music and Film industry of the US of A were able to get congress to set in fact such a high value of $150000 per song?
    After all, it is the law, don't blame Tenenbaum's counsel that they state what it is... Don't shoot the messenger, you know?

    (*)"How damages work: The Digital Theft Deterrence Act sets damages of $750 to $30,000 for each infringement, and as much as $150,000 for a willful violation. That means Joel could be forced to pay $1 million for the seven songs if it is determined that his alleged actions were willful."

  2. As I explained, the $150,000 per work figure is nothing more than a hypothetical maximum in this case. There is zero chance that Tenenbaum would actually have to pay such an amount. The labels have never asked for $150,000 per work in this or any similar case, and their history in other cases shows that they actually seek much, much less than that.

    Despite that reality, Tenenbaum's team has featured the $150,000 figure prominently on its web site, in its public statements, and in its legal briefs. His team is not dumb; they know that the labels aren't asking for that much, and they know a jury would never award it. But they do know that Tenenbaum will garner public sympathy if the public believes that he faces an outlandishly huge damages award -- which is precisely why they continually hype the huge figure.

    I don't feel "ashamed" about anything, but, for the record, I do think that an award of $150,000 for each of the works Tenenbaum appears to have infringed would be excessive. But neither do I accept your apparent premise that the maximum damages per song is only 99 cents. He is also alleged to have disseminated the songs to untold numbers of others. The amount of actual damages is difficult to calculate -- which is exactly why the law allows for statutory damages in such cases.

  3. "He is also alleged to have disseminated the songs to untold numbers of others."

    Oh, those "millions of potential like minded infringers" you mean? I always wonder who explained to the Plaintiffs how many bandwith domestic internet accounts (or students on some alleged quota) have to distribute a typical 3 minute song worth of bits. (in Amaruao II for example the investigators occupied the upload line for quite some time and could allegedly only get 10 songs instead of "millions")

    And since you mentioned the dissemination point of the claim: what about this settlement with Kazzaa for if I remember correctly one hundred and fifty million USD ($150,000,000)?

    Would that money not include any "potential" damage that Mr. Tenenbaum allegedly could have caused.

    And if not..
    Well, given that they reached (small amount) settlements with so many people beside Mr. T., had the guy(s) Joel disseminated the songs to (and the guy he got the songs from also) not "paid" for *his* copy of the 99cent song already with *their* settlement?
    Double, triple, quadruple (or what ever else exponential number it boils down to) times in "damages"...

    That sounds at least to me unreasonable and not just.
    So I personly think it is in each case for each individual only about the 99cents that this one person saved for not buying one song.
    (And I refrain from widening the argument into the field that a person could record the song of the radio too and the labels would allegedly have lost that sale then too by their reasoning in case of p2p instead of radio)


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