Monday, August 3, 2009

The Tenenbaum verdict form: debunking the 'mistake' theory of the damages award

When I heard the clerk announce that the jury in the Joel Tenenbaum case had awarded $22,500 per infringed work, I immediately thought: "Uh oh. Did they screw up? Did they really mean to award $22,500 total -- which happens to be the minimum statutory damages award of $750 per work, multiplied by the 30 works at issue?" (Others had similar thoughts.)

But my concerns were quickly put to rest. First, Judge Nancy Gertner clearly stated that the award was $22,500 per work, and asked the jury whether that was correct. The jury collectively responded, "Yes." Shortly afterwards, I spoke with one of the jurors. While I didn't ask him directly about the "mistake" theory (given the jury's response to Judge Gertner's inquiry, I no longer considered it plausible), it was clear from that conversation that the amount the jury intended to award was indeed $22,500 per work. For example, the juror mentioned that the final number was the result of "true compromise," i.e., higher than some people wanted, but lower than others' preference. Had the jury awarded the minimum of $750 per work, that would have represented a total victory/defeat -- not a "compromise."

But the strongest evidence that the jury did indeed intend to award $22,500 per work -- not $22,500 total -- comes from the verdict form itself. The form clearly indicates that the jury awarded $22,500 for each of the 30 separate songs.
Sony v. Joel Tenenbaum Verdict Form

And with that, I think we can put the "mistake" theory of the verdict to rest.


  1. Ben,

    It seems the verdict form lays to rest the "conspiracy theorists" proclamations.

    I was surprised to note that at least 5 of the 30 songs were attributed to bands in which some of my family's longest and dearest friends' children (well, actually, they are now adults...but we have known them since infancy) are performers.

    I have said it before, but it bears repeating. Your articles and reports on this and the JTR cases has been most helpful and informative. Thank you.

    Mike Slonecker

  2. Thanks, Mike. I don't think I'd call those who thought the jury might have intended to award $22,500 total (rather than per work) "conspiracy theorists." I actually had the same thought myself initially, and it is a bit of a coincidence that $750 times 30 is $22,500. But I think the facts are simply to the contrary; the jury did intend to award $22,500 per work, multiplied by 30.

  3. Ben, this is amazingly helpful. Do you have any sense as to how the jury ended up with the $22,500 number - even in terms of the process of compromise? Thank you for posting the verdict form - it's so useful.


  4. @Derek:

    It's hard to say exactly how they reached that number. The one juror I spoke with was reluctant to discuss the actual deliberative process (he said the jurors were urged by the judge not to). But he did make clear that the number was the result of "compromise." It is notable that $22,500 is much, much closer to the bottom end of the scale than to the top (though, to be sure, $22,500 times 30 is a pretty big number).


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