Monday, February 8, 2010

Labels oppose reduction in Tenenbaum award; defendant 'is the poster child for willful copyright infringement'

Joel Tenebaum is a "long-term, hardcore, and willful copyright infringer whose misconduct caused Plaintiffs to suffer incalculable harm," the record labels argued today in their brief opposing his motion to reduce the jury's award of $675,000 for downloading and "sharing" 30 songs over the KaZaA peer-to-peer network. The labels' brief shows no mercy toward the Boston University physics grad student, repeating that "Time after time, Tenenbaum falsely denied responsibility for the infringement, blamed his friends and family for his own illicit activities, and lied under oath":
Tenenbaum complains that “Plaintiffs did their best throughout the trial to make him appear to the jury to be a liar, a perjurer, and a person dodging responsibility for his actions and blaming others under oath for his conduct.” (Motion at 8.) Of course, Tenenbaum ignores the fact that he is all of those things — and he has no one to blame but himself. Tenenbaum has shown nothing but disdain for the copyright laws, the rules of this Court, and Plaintiffs. Tenenbaum is the poster child for willful copyright infringement, and now he asks the Court to autograph that poster. The Court should do no such thing.
Plaintiffs' Opposition to Tenenbaum's Motion for New Trial or Remittitur

The labels spend considerable effort fighting on fair use, an issue that the court has already decided in their favor, but whose ruling contains dicta that could be very dangerous down the road: the court's musing that it might be fair use for a defendant to download and share files during the "interregnum" between which file-"sharing" became technically possible and the time at which copyright owners made their works available in the format preferred by infringers like Tenenbaum. "[T]his fair use obviously antithetical to fundamental tenets of copyright law," the plaintiffs contend.

On Tenenbaum's argument that the jury's award of $22,500 per song violated the constitution, they plow over now-familiar ground, pointing out that "Plaintiffs have not located a single case, in the nine decades since Williams was decided, in which a court relied on Williams to reduce or eliminate an award of statutory damages because of a due process violation.... Nor has Tenenbaum cited to one."

And, in the wake of the court in the Jammie Thomas-Rasset case reducing the award there on common-law remittitur grounds, the labels argue strenuously that the court does not have the authority to reduce a jury's award that falls within the range set by Congress: "a district judge that superimposes his or her own subjective view of the 'right' amount of statutory damages usurps the role of the jury in direct violation of the Seventh Amendment and the Supreme Court’s decision in Feltner, and also improperly invades Congress’ authority in setting copyright policy."

A hearing on Tenenbaum's motion is now set for Feb. 23.


  1. This motion is written with an unusual amount of spite and ad hominem toward Tenenbaum, compared to the professional submissions earlier in this case. Either Plaintiffs have adopted some of the florid style and rhetoric spouted by Defendant's counsel and applied it to their own arguments, or they are desperate to avoid a repeat of the Thomas-Rasset debacle.

  2. Hum, so the labels are saying that the judge doesn't have the ability to judge. This ignores that constitutional job of the judiciary of acting as a brake on Congress.

    In actual fact this seems more like an attempt by the labels to financially attack the defendant, and to keep financially attacking him until the time that his financial resources are wiped out. While this is legal, it may not be good business practice.

  3. @The Mad HatterL:

    You are completely mischaracterizing the labels' arguments. They are not "saying that the judge doesn't have the ability to judge." Rather, they are saying that the 7th Amendment to the Constitution, the Copyright Act, and the relevant case law mean that the decision where within the statutory range a statutory damages award should fall is vested with the jury -- not the judge. And as to the constitutional challenge, they are not saying that the judge doesn't have the authority to declare a statute unconstitutional; they are simply arguing that the Copyright Act's damages provisions are not unconstitutional.

    The litigation itself isn't costing Tenenbaum anything; his lawyers are working pro bono. And he has had, but rejected, many opportunities to settle this case for a few thousand dollars. Instead, he someone thought it was a good idea to litigate (lying along the way) when the facts and the law were overwhelmingly against him.

  4. The issue is a double edged sword with not much room in the middle. On one edge is whether statutory damages are a violation of due process. The other edge is whether a judge's remittitur violates the right to a jury trial.

    If statutories are punitive, you might very well see them limited to 3x actual damages when/if SCOTUS rules on them. As for the rationale that statutories are necessary because it's hard to perform damages valuation, that's a very hard sell -- we do it in patent and trademark case all the time (GA Pacific factors, anyone?).

    But the other edge, like the punitive commentary above, also gets some insight from torts cases. Many legislatures and judges have dealt with tort reform via statutory damage caps and remittiturs. Similar to the labels' argument, these are often (but not always) thrown out on appeal on seventh amendment grounds.

    I actually see it to the labels' advantage to pursue these cases if only for the "unlikable defendant" advantage. Both cases include commentary on blatant (and repeated) willfulness, as well as perjury. Just as the mixtape cases traditionally involved DJs who were convicted felons promoting typical unwholesomes (drug use, prostitution, violence), the newest mixtape guru has been operating on the radar for a few years now with nothing but declaratory judgment proof rhetoric. More than a few attorneys have commented that the lack of litigation against this kid has much to do with his status as "a likable defendant" -- young, all-American, and an engineering student. The moral of this story is that the labels should take advantage of the their opposing parties' lack of likability, because it's not going to get easier from here.

  5. Hayden -

    Let's assume for a moment that the SCOTUS goes wild and limits statutory damages to 3x actual damages. Explain how that would work.

    First, it would require the SCOTUS to break every rule of statutory construction, in addition to violate the separation of powers doctrine, to rewrite 504(c)(1).

    Second, in cases where actual economic damages may be small, what is the practical effect of treble damages if they do not reach the minimum $750 in the statute? Does the plaintiff get nothing? With nothing, or even a nominal award, where does the incentive to protect ones copyright in court if the costs exceed the potential gains?

    Finally, how would you go about evaluating actual damages? For instance, how much should a plaintiff get if I made 1000 copies of a new bestseller and offered it for sale but nobody bought them? I didn't really cause the plaintiff any economic harm, so should they get zero? Should they get the market cost of the books? Should they get a fee coordinate with whatever it costs to license the copy or distribution right? With regard to that last question, what if the publisher never licenses those rights to others?


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