Commentary

File-Sharing Defendant Presses Claim That Copyright Law Violates Constitution

Boston grad student Joel Tenenbaum hasn't had the best luck fighting the record industry, but that's not stopping him from continuing to litigate. In the latest twist in the long-running case, Tenenbaum filed papers asking an appellate court to reconsider a decision issued against him in September.

Tenenbaum was among more than 18,000 people targeted by the Recording Industry Association of America for sharing tracks on peer-to-peer networks. Most of those people appear to have settled their cases, but Tenenbaum was one of just two defendants to demand a jury trial. It didn't go well for him.

Two years ago, a Boston jury ordered Tenenbaum to pay $675,000 for sharing 30 songs. U.S. District Court Judge Nancy Gertner subsequently ruled that damages of $22,500 per track are so high as to be unconstitutional and reduced the award to $67,500. While the jury's award was within the range set out by Congress -- $750 to $150,000 per work infringed -- Gertner said that the jury's verdict was so disproportionate that it violated due process.

That move didn't sit well with the RIAA, which wasn't happy to see a judge declare a key portion of federal copyright law unconstitutional.

Both Tenenbaum and the RIAA appealed to the 1st Circuit. Tenenbaum argued that even the reduced award of $67,500 wasn't appropriate, and that he shouldn't have been found liable for copyright infringement. The RIAA said that Gertner shouldn't have reduced the jury's award.

The appellate court sided with the RIAA. The court rejected all of Tenenbaum's arguments that he was entitled to a further damage reduction and/or a new trial. A three-judge panel of the appellate court ruled that Gertner jumped the gun by ruling that the law was unconstitutional, because she could have reduced the award for other reasons. The 1st Circuit sent the case back to Gertner for her to decide whether to slash the verdict without making a decision about whether it's constitutional.

Tenenbaum is now asking the appellate court to reconsider its decision to affirm his liability. He's asking that all of the First Circuit judges -- not just a three-judge panel -- rehear the case and rule that Gertner shouldn't have allowed the jury to return a six-figure award in the first place. “To instruct the jury that it may ascribe an award in a range of up to $4,500,000 against a noncommercial copyright infringer is punitive, excessive, not authorized by statute, and a denial of due process,” he says in new court papers. “Indeed, it is difficult to find the right word. The trial judge misinstructed the jury that it could legally ascribe an award 67 times what she herself later found to be the legally permissible constitutional maximum.”

 

1 comment about "File-Sharing Defendant Presses Claim That Copyright Law Violates Constitution".
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  1. Robert Repas from Machine Design Magazine, November 8, 2011 at 10:55 a.m.

    There's no such thing as a "Constitutional maximum." If a city wants to level a million dollar fine for overtime parking, there's nothing in the Constitution to prevent that. (They probably would never collect it, either, but that's another story.) As for copyrights, copyright law clearly lays out the minimum and maximum fines in Section 504. Tennenbaum would've been better off admitting he was sharing but pleading ignorance that he was violating copyright. A provision in the law lets the court reduce the fine to $200/infringement in such case. As it is, he's tying up the courts with needless lawsuits and just making matters worse for himself.

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