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