Friday, October 29, 2010

Labels file First Circuit brief in Joel Tenenbaum case; ex-SG Paul Clement joins team

The record label plaintiffs filed their appellate brief in the First Circuit this week, seeking to reinstate the $675,000 copyright infringement award against Joel Tenenbaum that the district court held was unconstitutionally excessive and reduced to $67,500.

Readers of this blog are likely already familiar with the arguments over whether awards of copyright statutory damages are subject to review under the Supreme Court's punitive damages cases, including BMW v. Gore. I thought this brief did a particularly effective job at explaining why Gore and its progeny are inapplicable to statutory damages awards, where Congress has clearly established the permissible damages range, and thus the jury is not left without the "guideposts" that the court set forth in Gore, where no statute cabined the jury's discretion. And the brief highlights the flaws in the district court's own damages analysis, including its failure to take into account the evidence that Tenenbaum distributed (uploaded) songs to countless others in addition to downloading them. Of note, the labels' appellate team now includes former US Solicitor General Paul Clement, now a partner at King & Spalding.

Tenenbaum's defense team has also indicated that it will appeal, arguing that even the reduced award is unconstitutionally excessive.
Record Labels' appellate brief in Sony v. Tenenbaum


  1. Ben,

    Perhaps it is just me, but all this talk of "but he did not make any money" in my view lacks any persuasive force.

    Merely by way of example, even a cursory review of 506 reveals that one can violate the law even for "private financial gain", and 101 defines "financial gain" in terms that make it clear the exchange of money is not the sole consideration.

    If one can conceivably go to jail for actions such as Tenenbaum has admittedly done, they I have a quite difficult time understanding why such actions somehow seem worthy of a "Get Out of Jail Free" card in the context of a civil action.

    Certainly some people will pipe up and say "Yeah, but look at how much less of a fine is associated with criminal conduct!" What they would fail to appreciate (actually, they would appreciate it...but would rather not admit it) is that time spent in a federal correctional facility carries a large personal price, and that fines for criminal conduct virtually never correlate with civil damages associated with such conduct because they are assessed for an entirely different purpose.

    Perhaos after a good night's sleep I will be able to articulate in a rational manner my observations concerning the relationship between the award of statutory damages and deterring future, illegal conduct.

  2. The Department of Justice also filed an appeal brief. In addition to focusing on the district court’s misapplication of the Gore standards in determining whether the jury’s statutory damages were constitutional, the DOJ also addressed the district court’s failure to utilize its powers of remittitur. Interestingly, the DOJ found the same flaw in the district court’s logic that I did; namely, the district court concluded that the original “jury’s award was far in excess of any that could be justified by plaintiff’s actual harm or the deterrent purposes of the statute. If that is so, then there is no reason to expect that a subsequent properly instructed jury would choose an award of the same magnitude. Indeed, if a new, properly instructed jury would, on the same evidence, be highly likely to return a verdict of comparable magnitude, then the court’s conclusion that the verdict is grossly disproportionate to defendant’s offense is itself open to serious question.”


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