Tuesday, February 23, 2010

Boston Globe: Gertner 'openly sympathetic' to Tenenbaum at hearing on challenge to damages

This afternoon Judge Nancy Gertner held oral argument on Joel Tenenbaum's motion to reduce the jury's award of $675,000 for downloading and distributing 30 songs over the KaZaA peer-to-peer network. And, according to this report in the Boston Globe, it seems likely that Judge Gertner will indeed cut the award, which represented $22,500 per work in statutory damages:

Judge Nancy Gertner took the matter under advisement but was openly sympathetic to Tenenbaum, a 26-year-old doctoral student in physics, who sat with his legal team in the courtroom.

"I'm not saying it was wrong to bring the case ... or to hold people's feet to the fire" for copyright infringement, Gertner told [plaintiffs' attorney Tim] Reynolds. But she asked, "Is there another case in the galaxy that's held up damages to that degree?"

I was able to speak with a member of the plaintiffs' team, who agreed with the Globe's characterization of Judge Gertner's statements at the hearing. And my source provided me with perhaps the most shocking scoop of the proceedings: Tenenbaum's counsel Charles Nesson, who wore a Steve Jobs-esque black turtleneck every day of the trial last summer, today donned a tie.

Update: I also recommend this report from the National Law Journal.


  1. I'm concerned with the way Judge Gertner framed the question, as it assumes that there is some mythic yardstick by which the adequacy of statutory damages can be measured. This clearly implies a calculation of actual damages, which, I imagine, would still be nothing more than speculative even after a full trial on the matter. Such an endeavor would not only increase the cost burden on copyright holders in prosecuting their cases, it would also work against the very policy of copyright law by closing the doors to the courthouse on any plaintiff who couldn't marshal that proof, even though Congress specifically said they don't have to.

    The properly-framed response to the question should focus on the actual issue: "Where does the Court draw the authority to usurp the 7th Amendment decision of the jury, after a careful deliberation on the facts (which include, most notably, that the defendant only admitted to distributing works after lying about it several times under oath, was the first seeder of several of the works, and continued to willfully flout the law even after he was on notice of the case against him), to award damages well within Congress's carefully crafted damage scheme which has been revisited and refined time and again, most recently to combat the very behavior before the Court?"

  2. @Anonymous 5:51

    Remittitur is a common-law practice that existed at the time the Seventh Amendment was adopted. As a result, it does not offend the jury trial right preserved there. Courts remit jury awards in a wide variety of contexts without running afoul of the Constitution.

    (Do you believe that summary judgment violates the Seventh Amendment too? If so, the fair use question should have been given to the jury after all...)

    Nor does remittitur contravene Congress's statutory damages scheme for copyright claims, given that Congress did not expressly prohibit this longstanding practice in the Copyright Act. Given its common-law pedigree, it survives in the absence of an express directive to the contrary. It is akin to longstanding common-law defenses -- like fair use -- which courts regularly recognized in copyright cases even before they were codified by Congress.


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