Defendant's Motion for New Trial or Remitittur
Prior to trial, Tenenbaum made similar arguments, some of which Judge Nancy Gertner already rejected. Specifically, in her June 15, 2009 order, Judge Gertner rejected Tenenbaum's arguments that statutory damages apply only to commercial infringement, as well as his argument that they are criminal in nature. She also included this passage, which I think gets at the heart of the matter:
In deciding the questions presently before the Court, the issue is obviously not whether the instant litigation is good policy. There are many civil claims and criminal prosecutions that may well be entirely constitutional -- but, at the same time, entirely inequitable, inappropriate, or wrong-headed. The Court’s responsibility here is only to consider the former, not the latter.It should be noted that the Department of Justice has already weighed in in this case in defense of statutory damages (though before the verdict), as it did in the similar Thomas-Rasset case (after the $1.92 million verdict there). It seems likely that DoJ will file a brief in support of the Tenenbaum award.
The arguments regarding the constitutionality of large statutory damages awards should be familiar to most readers by now; for both sides, I recommend reading this online debate I did a few months ago with Professor Pam Samuelson of Berkeley Law School. While I'm not going to hazard a prediction as to what Judge Gertner will do, I do think it's quite telling that this brief does not cite a single case where a court has held that an award of statutory damages is unconstitutional, either under Williams (which upheld the statutory damages award at issue) or Gore. And that's no surprise; as far as I'm aware, no such case exists.
Tenenbaum also seeks a new trial, challenging the court's grant of summary judgment on fair use, and arguing that the court improperly excluded a portion of a letter in which he offered to settle the case for $500 [amounted corrected from $5,000]. On fair use, Tenenbaum argues that it was fair use for him to get songs for free in 2004 (when his infringement was detected by the labels) because the labels didn't release them in his preferred DRM-free format until 2007. I know of no legal support for such an argument; copyright owners have no obligation to offer their works at all (let alone in a particular format), on pain of losing their exclusive rights.
As for the letter, it's a bit hard to judge exactly how or why the court ruled, since the discussion occurred largely at sidebar. But I can address the brief's argument that "Plaintiffs did their best throughout the trial to make the defendant appear to the jury to be a liar [and] a perjurer." Br. at 8. That may be true, but Tenenabaum's counsel, Harvard Law School Professor Charles Nesson, did little to dispel that conclusion. Nesson actually asked Tenenbaum on the stand, "Why did you lie at that point?" -- effectively a concession that his client did lie. And Tenenbaum admitted it, answering, "It was kind of something I rushed through.... It's what seemed the best response to give." If the jury got the impression that Tenenbaum was "a liar [and] a perjurer," it was, at least in part, because he and his counsel essentially admitted it.
Lastly, take a look at the counsel listing on the first page of the motion. The Boston law firm assisting pro bono in Tenenbaum's case, Feinberg & Kamholtz, is listed as "FEINBERF & KAMHOLTZ." I'm sure this seems trivial to non-lawyers (and even some lawyers), but it matters. It signals sloppiness to the judge and her clerks. It's only natural for them to think, either consciously or not, "If they can't even get the name of the firm right, what else did they get wrong? Did they cite correctly to the record, and the cases? Can I trust when they say something is on page 472? Can I trust when they say that Williams, or Gore, stands for X?" This case is not going to turn on a typo. But mistakes like this are decidedly unhelpful to a party's cause.