Why Joel Tenenbaum may never meet a jury

Most observers of the Joel Tenenbaum case -- myself included -- have been proceeding as if there will be a trial -- maybe even a "spectrial" -- this summer. But a new filing in one of the record labels' cases against another individual accused peer-to-peer infringer is a useful reminder that Tenenbaum may never get to test his fair use or nullification defenses on an actual jury.

The new filing is the labels' motion for summary judgment in Lava Records LLC v. Audrey Amurao. For the non-lawyers, summary judgment is a procedure by which a judge can declare a winner without the need for a trial, where there is no dispute over the material facts, and the evidence establishes that the moving party is entitled to judgment as a matter of law. Usually it is the defendant who moves for summary judgment, but a plaintiff can avail itself of the procedure as well. The labels have previously won at least one important individual p2p case on summary judgment. See BMG Music v. Gonzales, 430 F.3d 888 (7th Cir. 2005) (affirming grant of summary judgment to plaintiffs).

The Seventh Circuit in Gonzalez held that a court may award the plaintiff statutory damages on summary judgment -- but only if the plaintiff opts for the minimum of $750 per work. Thus in that case, the court of appeals affirmed an award of $22,500 in damages under 17 U.S.C. §504(c) for infringement of 30 works. In Amurao, the labels are once again asking that minimum statutory damages of $750 per work be awarded, on 34 works, for a total of $25,500. (The plaintiffs say that they identified 79 specific infringed works, and "potentially hundreds" more, but chose to proceed on only 34.)

Will the labels win summary judgment in Amurao? They base their motion on computer forensics and deposition admissions by the defendant; it's hard to say whether that evidence will be sufficient (and undisputed) without knowing Amurao's arguments and evidence in opposition (which hasn't been filed yet). And will the plaintiffs in Tenenbaum file a similar summary judgment motion? I have no way of knowing for sure, but they certainly have their own forensic evidence and deposition admissions (not to mention Tenenbaum's own attorney's admission).

And though Tenenbaum's team constantly refers to the maximum statutory damages of $150,000 per work, that number has always been more about their PR scare tactics than a remotely plausible actual award. The labels have never said they will seek $150,000 per work. As the summary judgment proceedings in Gonzalez and Amurao demonstrate, their practice at that stage is apparently to seek the minimum amount of statutory damages -- not the maximum. And in Capitol v. Thomas, the one individual p2p case that has gone to trial, the labels never asked for a specific amount (see pages 605-06 of the trial transcript); the jury arrived at $9,250 per work on its own (a total of $222,000 on the 24 works on which the labels proceeded). (The verdict in Thomas was later overturned for a reason unrelated to the damages award.)

Again, I don't know whether the labels will move for summary judgment in Tenenbaum, or, if they do, whether they will win. But I think there's a much greater chance of that happening than of a jury awarding the kind of million-dollar statutory damages award that Tenenbaum's team has been touting in an obvious bid for sympathy.

(h/t Recording Industry vs. The People)