Monday, January 4, 2010

Tenenbaum seeks reduction in jury's award against him; argues $675,000 verdict violates constitution

Joel Tenenbaum today filed a motion seeking to reduce the award of $675,000 in statutory damages a Boston jury imposed on him last July after finding that he willfully infringed 30 songs by downloading and "sharing" them over the KaZaA peer-to-peer network. The motion argues that the award of $22,500 per work violates the U.S. Constitution's due process clause because it is "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable" (citing St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 67-68 (1919), as well as violative of the limits on punitive damages set forth in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996).
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.


  1. Thanks for pointing out my typo. I've corrected it.

    To be fair, you might mention, along with noting that there have been no cases holding a statutory damage award unconstitutional, that statutory damage cases have never before been brought against non-commercial individuals.

  2. Prof. Nesson:

    The court made very clear in its June 15 order that, at least as a matter of statutory construction, it sees no distinction between commercial and non-commercial infringement (not to mention that in its Dec. 7 order, it declined to characterize Tenenbaum's acts as "non-commercial"):

    The Court also rejects the Defendant's argument that it could avoid these alleged constitutional infirmities simply as a matter of statutory interpretation -- that is, by construing Section 504(c) to apply only to commercial copyright infringers. Since Tenenbaum made no money from his alleged file-sharing activities, so the argument goes, the case should be dismissed at this juncture. First, even if Section 504(c) applied only to commercial infringers, this would be no basis for dismissal because the provision deals only with the measure of damages, not liability.
    Non-commercial use is clearly not a complete defense to liability for copyright infringement, but
    only one of several factors considered as part of the fair use defense codified at 17 U.S.C. § 107.
    Second, there is simply no sound textual basis in Section 504(c) for the construction that the
    Defendant proposes -- i.e., an interpretation that excludes non-commercial infringers from even the minimum statutory damages. The damages provision does not make the slightest reference to this distinction. As such, the Court is not free to adopt the construction that Tenenbaum urges, one which would effectively amend the statute, in order to avoid his alleged constitutional infirmities.

  3. If I ever turned a brief like this into my writing professor, I'd fail. Lesson #1 for any law student is to lead with your best argument. Here, if the best argument a lawyer can marshal is, essentially, that the presence of DRM and record label marketing made his or her client commit infringement, then that's the first sign that it's time to throw in the towel.

    The second is failing to spell or grammar check the document, which is evidenced by, among other things, sentences like this: "the Court ignored the impact on encryption the fairness of music consumers's choice." Motion at 1. As a former federal court clerk, I can attest to how such mistakes negatively impact the credibility of an argument and anyone who presents it.

    The third is having virtually zero supporting citations, which, even to a lay person, should highlight that the law simply doesn't agree with the position being argued. This kind of material belongs in either a law review or a petition to your Congressperson. The court can only apply the law as written. If you wish to amend it, there are other appropriate venues to do so.

    And finally, wasting valuable brief space arguing that the client was prejudiced by the failure to admit an unredacted confession into evidence makes zero sense. Nothing that was in that letter, if admitted, would've changed the calculus under the law. The court had already summarily ruled on fair use, therefore the only question before the jury was (1) did infringement occur; and (2) if so, what are the damages. Whether or not the client took responsibility or felt guilty for his or her actions is irrelevant.

    The entirety of this brief should've focused on the constitutionality of the damage award, but instead it's thrown in at the end like an afterthought. Infuriating the reader by making them wade through 20 pages of nonsense before they get to the only moderately relevant argument is simply poor advocacy.

    Finally, I don't find the argument that Congress never intended statutory damages to be assessed against non-commercial infringers to be persuasive in the least. More than 10 years have passed since the dot-com explosion, and while Congress has revisited certain aspects of copyright law over that time, not once has it chosen to exempt non-commercial infringers. That, by itself, is telling.

  4. Another typo in heading II on page ii / 8. Apparently Joel failed to take RESONSIBILITY for his actions. Teaching Winter Term Evidence at HLS is very time consuming, and it is difficult to find time for spell-check.

  5. Also, I'm fairly certain that you can't cite a Wikipedia article without at least including a (last visited: date)...

  6. "That, by itself, is telling."

    Telling that the RIAA is is generous in the campaign contributions they make?

  7. Yeah Mr. Nesson you really should have looked over that doc for typos, they're everywhere. And you really should have put the constitutional thing first.

  8. Professor Nesson touches on an important point in mentioning the impact of statutory damages on non-commercial individuals.

    Statutory damages for copyright are designed to deter businesses by destroying them. Prior to the arrival of modern electronics, it was inconceivable that a private individual could commit a serious violation of copyright law; prior to the Internet, non-commercial home infringement was not pursued at all.

    However, as a matter of equity, it seems wrong to most people to inflict life-destroying fines for civil infractions seen as minor at worst.

    My favorite such case was the student at Michigan Technological University who was sued for 95 Billion-with-a-Bee dollars for operating a Direct Connect hub. There are very few things a private individual can do to rack up a penalty of 95 Billion dollars: murder, outside of the context of mass terrorism, won't do it. (To be fair, that was the amount demanded in the suit, and the settlement was for far less. But still...)

    Eventually, as one essayist wrote, we are starting to move into real consent-of-the-governed territory here.

    - wallow-T

  9. Ben,

    Standing back and looking over the copyright landscape, I am struck by the fact that one can be criminally prosecuted under 501(a) for infringement for personal financial gain (as defined in 101), and yet in a civil setting argue with a straight face that despite the possiblity of criminal liability they have a "get out of jail free" card when they engage in the same activity in a civil setting.

    Call me a fool, but I have a very difficult buying into an argument that an activity in violation of 501 is of no moment in a fair use analysis.

  10. “His downloading was, in reality, an expression of both the social force of technological revolution and a consequence of the plaintiffs marketing strategies. The plaintiffs conduct can be seen as effectively luring Tenenbaum into a vibrant technologically-assisted youth culture.”

    The devil RIAA made him do it, eh?

    Mr. Nesson’s suggestion (on page 5) that unprotected music on cd’s is responsible for creating the “vast, unfenced pool of unauthorized peer-to-peer file-sharing” into which poor Joel fell--- and all through the negligence of the recording industry and their marketing practices--- is as amusingly sophist as it is just plain sad.

    Perhaps next Joel can sue the recording industry for almost drowning in a drm-free pool of unlawfully pilfered music.

  11. "My favorite such case was the student at Michigan Technological University who was sued for 95 Billion-with-a-Bee dollars for operating a Direct Connect hub"

    And yet you would think that a lawsuit of such magnitude would be able to be found on the internet. Yet, it isn't. Indeed, the case against Joseph Nievelt at MTU included allegations of the infringement of approximately 200 songs. Even assuming the maximum statutory award of 150,000 per infringement, would amount to only 30 million dollars. Aggrandizement and hyperbole don't support your argument.

  12. Try googling "joseph nievelt billion". We non-professionals have to live with the coverage provided by the news media, for the most part.

    - wallow-T

  13. "According to the Detroit Free Press, the suit against Joseph Nievelt of Michigan Technological University claims his service made over 652,000 copyrighted songs available to network users. The RIAA has requested the maximum punitive damages, $150,000 per song. This comes to a total of $97.8 billion."

    - Johns Hopkins University newsletter, 2003. Forgive me for not providing a link, I seem unable to paste into this window.

    Even at the lower figure of $30 million damages, this does not change the thrust of my argument: ordinary people doing ordinary home-life things are being slapped with damages scaled for industry.

    - wallow-T

  14. "ordinary people doing ordinary home-life things"

    Ordinary people doing ordinary every day activities don't willfully misappropriate the property of others without compensation.

    "are being slapped with damages scaled for industry."

    You can repeat this mantra all you like, but you have yet to provide one iota of evidence to back it up. Where, in the entire history of US copyright law, has noncommercial reproduction and distribution been exempted from infringement damages?


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.