But let's keep one thing clear: Tenenbaum's arguments bear scant resemblance to the law as currently written. I want to highlight one example, from a British publication called Bad Idea. In an interview, Tenenbaum defense team member and chief flak Debbie Rosenbaum tells Bad Idea:
The RIAA loses money in its fierce litigation campaign against individual users, and they are making an example out of Joel in order to quote "teach other people a lesson." That is an inappropriate use of the court system and we are disappointed in the outcome.(my emphasis). Rosenbaum is entitled to her personal opinion as to what is an "appropriate use of the court system." But let there be no mistake: the law is crystal clear that teaching both Joel Tenenbaum and other potential infringers a lesson is an entirely appropriate use of the copyright laws, and particularly their statutory damages provisions.
"Teaching a lesson" is simply a colloquial term for what lawyers call "deterrence." And deterrence is a perfectly legitimate aim of statutory damages. Don't believe me? Let's go to the case law. See, e.g., F. W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 233 (1952) (“[t]he statutory rule, formulated after long experience, not merely compels restitution of profit and reparation for injury but also is designed to discourage wrongful conduct.”); Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 195 (1st Cir. 2004) (range of statutory damage designed to deter willful infringement); Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 113-14 (2d Cir. 2001) (statutory damages "meant to discourage wrongful conduct."); Disney Enters., Inc. v Delane, 446 F. Supp. 2d 402 (D. Md. 2006) (statutory damages necessary to deter future infringement). And there are many, many more.
And in the legislative history of the most recent revision to the statutory damages provisions of the Copyright Act, the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, Congress highlighted the importance of statutory damages as a means to achieve "a significant deterrent effect on copyright infringement. See Report of the House Committee on the Judiciary (“House Report”), H.R. Rep. No. 106-216, at 3 (1999); see also Patry on Copyright § 22:100 n.11 ("[A] substantial award of statutory damages for willful infringement is appropriate in order to deter bad actors."); id. at § 22:174 ("[W]hile certainly serving to provide some compensation for defendant's infringement, statutory damages also to serve a deterrent purpose, discouraging wrongful conduct by imposing a high enough penalty so that defendants will realize that it is less expensive to comply with the law than to violate it.").
And, should this case ever reach the Supreme Court, I don't expect Tenenbaum's argument that it's inappropriate for the record labels to use the courts to "teach him a lesson" to gain much traction. The soon-to-be newest member knows a thing or two about statutory damages. And, as a district judge, she even once increased an award of statutory damages recommended by a magistrate judge, on the grounds that it didn't teach a strong enough lesson to the defendant. See Top Rank, Inc. v. Allerton Lounge, Inc., 1998 WL 35152791 (S.D.N.Y.,1998) (Sotomayor, J.) ("The Court agrees with the defendants that statutory damages must be sufficient enough to deter future infringements and should not be calibrated to favor a defendant by merely awarding minimum estimated losses to a plaintiff. The Court finds, accordingly, the recommended awards in the Report to be inadequate."); see also Peer Int'l. Corp. v. Luna Records, Inc., 887 F.Supp. 560 (S.D.N.Y. 1996) (Sotomayor, J.) ("Congress's provision allowing for a greater award where willful infringements are found, however, indicates that statutory damages serve the dual purposes of the Copyright Act-compensation and deterrence.... Because of defendant Abel De Luna's willful infringement of plaintiffs' copyrights and his continued infringement after the initiation of this action, I find that substantial statutory damages are warranted to deter him from future misconduct.").
"[C]ontinued infringement after the initiation of this action" -- sound familiar?