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