Tuesday, January 19, 2010

Department of Justice defends constitutionality of $675,000 award against Tenenbaum; p2p user caused 'great public harm'

The Department of Justice today defended against constitutional challenge the $675,000 statutory damages award a Boston jury imposed on admitted copyright infringer Joel Tenenbaum, arguing that his use of peer-to-peer networks to obtain free music and distribute it to untold numbers of others caused "great public harm." As it has previously in the Thomas-Rasset, Cloud, and this case (pre-verdict), DOJ argues that the Supreme Court's limits on punitive damages established in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996) and its progeny do not apply in the context of statutory damages, where the "extremely deferential" standard of St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63 (1919) applies:
The application of the Copyright Act’s statutory damages provision in this case withstands constitutional scrutiny under the test adopted by the Supreme Court in Williams. In enacting the current statutory damages provision of the Copyright Act, Congress has given such due regard to the public’s interests, the opportunity to repeatedly commit this statutory violation, and the need to ensure adherence to the law. Id. at 67. Congress has established a regime to protect intellectual property, with origins that date back to before the beginning of the Republic. The current damages range provides compensation for copyright owners because, inter alia, there exist situations in which actual damages are hard to quantify. Furthermore, in establishing the range, Congress took into account the need to deter the millions of users of new media from infringing copyrights in an environment where many violators believe they will go unnoticed. The harms Congress sought to address, moreover, are not negated merely because an infringer does not seek commercial gain. Accordingly, the statutory range specified by Congress for a copyright infringement satisfies due process.
After a weeklong trial last July, a federal jury in Boston found Tenenbaum, a Boston University physics grad student, liable for willfully infringing 30 of the major record labels' copyrights by downloading and distributing them over the KaZaA peer-to-peer network, and imposed statutory damages of $22,500 per work (out of a maximum $150,000 under the statute). On January 4, Tenenbaum filed a constitutional challenge to the award, arguing that it violated his right to due process. The labels' response is due January 28.

As it did in its Thomas-Rasset brief, the government argues here that, notwithstanding the statutory range set forth in the Copyright Act, the court retains discretion to remit the award under common law principles. However, DOJ cites no copyright statutory damages cases in support of this argument, and in fact the labels argued in their brief in defense of the Thomas-Rasset award of $1.92 million ($80,000 per work) that a court does not have the authority to reduce a jury's award of statutory damages under the common law.

For more background on the constitutionality of copyright statutory damages awards, please refer to this online debate I did a few months ago with Professor Pam Samuelson of Berkeley Law School.
DOJ Brief in Support of Tenenbaum Award


  1. If Joel's actions caused "great public harm", you would think that they could at least *try* to put a dollar figure on it.

    I know it's not their responibility and specifically not required, but for all their dramatics, I think they should.

    If they could show me how much they were actually hurt, then I might be persuaded to change sides.

    As it stands, they look like greedy bullies and Joel is the victim.


  2. I am trying to figure out why Google's Youtube continues to operate with impunity?

  3. @Anonymous:

    YouTube claims that it's protected by the DMCA's safe harbor for sites that promptly remove videos upon receipt of infringement notices. But Viacom and others don't believe the safe harbor applies, and are fighting a massive lawsuit on the subject: http://news.justia.com/cases/featured/new-york/nysdce/1:2007cv02103/302164/

  4. This DoJ brief was an absolute pleasure to read. You want to know how I know this brief will win the day? Because it has Beckerman throwing a fit over on his website. And whenever he gets outraged by a legal argument, it always turns out to be right.

    As for Youtube, I'm eagerly anticipating the outcome. I think Viacom and the others have a very strong case against safe harbor, but it will be interesting to see if a Judge has the fortitude to enjoin the country's most popular website. Let's face it through, if it weren't for the plethora of infringing copies of Daily Shows and South Parks, nobody would ever have known what YouTube was. And today, it is still a cesspool of infringement with no means of controlling the uploaders and repeat offenders. I don't know where the happy medium lies, but in a decision between placing the onus on the copyright holder to make daily searches of every video host on the internet for their entire catalog of works, or to place the onus on the host who is providing the incentive to continue infringing, I choose the latter.

  5. What about the whole bankruptcy thing to avoid payment of a civil penalty? Does that happen before bankruptcy or does a judge tell the defendant they can't apply for bankruptcy (for the civil penalty)?

    Nice use of the word cesspool in the comment above.

  6. It is far from clear that Tenenbaum's debt would be dischargeable in bankruptcy, given the jury's finding that his infringement was willful. Here's some background on that issue:



  7. "Let's face it through, if it weren't for the plethora of infringing copies of Daily Shows and South Parks, nobody would ever have known what YouTube was"

    Lol wut? Nobody watches that nonsense. There is much better nonsense to watch on Youtube.

  8. Watching US citizens in contortions over this gives non-unitedstatesians some delicious schadenfreude.

    On the one hand there's no doubt your founding fathers, Jefferson for example, would have been horrified at the extension of the very limited notions of copyright and patent to the lengths they have reached today.

    On the other hand the constitution IP clause allows for reasonable extension of powers and what congress proposes as reasonable, SCOTUS is disposed to accept.

    On the gripping hand, this will criminalize close to the entire population. The heaving masses will take their revenge at the polls, sooner or later. One is reminded of the Volstead act and its aftermath.

    Besides, if studies on the actual effect of IP laws are remotely correct, in short order US competitive power will be crippled; either way, the outcome will be the best show in town.


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.