Joel Tenenbaum today filed a reply brief in support of his motion to reduce the jury's verdict of $675,000 for downloading and distributing 30 songs over the KaZaA peer-to-peer network.
Defendant's Reply Re New Trial Motion
While this brief is better argued, better written, and better supported than any other papers I've seen from Team Tenenbaum, the very first sentence contains a blatant falsehood that no court should tolerate. The brief states that the plaintiffs' opposition to Tenenbaum's motion contains the "assertion that Joel Tenenbaum caused them 'billions of dollars' of damages in lost revenue, Pl. Opp. at 28, with respect to the thirty songs which are the subject of this action." That is an egregious mischaracterization of what the plaintiffs' brief actually says. The plaintiffs' brief does not say that Tenenbaum caused billions of dollars in damages. Rather, it refers to "the billions of dollars of lost revenues and the mass layoffs in the record industry as a result of file-sharing," clearly referring to the overall phenomenon, rather than that perpetrated by Tenenbaum himself. (My emphasis.) Indeed, plaintiffs' expert economist Stanley Liebowitz testified that it was impossible to calculate how much damage Tenenbaum himself caused.
Elsewhere in the brief, Tenenbaum maintains that the actual damages he caused are at most $21, calculated by multiplying 30 songs by the 70 cents the labels would have received from Apple for an authorized iTunes download. But Judge Michael Davis' recent order in the Jammie Thomas-Rasset case (which Tenenbaum relies on as authority for other points) explicitly rejected such a calculation as "inadequate" while reducing the jury's award in that case from $80,000 to $2,250 per work. See order at 21-22.
Tenenbaum does claim to have found a single case where a court has "reduced a statutory damage award that was within the statutory maximum." Br. at 7 (citing Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344 (7th Cir. 1995)). But the damages at issue in Hennessy were punitive damages -- not statutory damages. It is true that 42 U.S.C. § 1981a(b)(3) caps such awards, in this case at $100,000. But I don't believe that punitive damages become statutory damages just because a statute imposes a cap on those punitive damages -- and Tenenbaum's brief does not cite any cases saying that they do.
A hearing on Tenenbaum's motion is set for February 23 before Judge Nancy Gertner.