• by Wendy Davis , Staff Writer @wendyndavis, May 16, 2012

File-sharer Joel Tenenbaum is asking the U.S. Supreme Court to consider his argument that a six-figure judgment for sharing 30 tracks on Kazaa is unconstitutional.

Tenenbaum was among thousands of people sued by the Recording Industry Association of America between 2003 and 2008 for allegedly sharing tracks on peer-to-peer networks. Just two of those people took their cases to trial -- Tenenbaum and Jammie Thomas-Rasset. The remainder agreed to settle, often by paying four figures.

Tenenbaum unsuccessfully took his case to a jury, which not only found that he infringed copyright but ordered him to pay $675,000. (Thomas-Rasset also lost her case and was hit with a big damages award; proceedings are ongoing in her case.)

Observers think that one reason why so many people settled stemmed from the high cost of litigating a copyright lawsuit. Another is that the copyright statute allows owners to recover between $750 and $150,000 per work infringed -- regardless of the actual damage caused by the infringement. Those damages are high enough that many people simply weren't willing to risk going to trial.

In Tenenbaum's case, U.S. District Court Judge Nancy Gertner ruled that the $675,000 damage award was unconstitutional. She reduced the figure to $67,500, which represents three times the minimum of $750 per track.

But the RIAA appealed that ruling to the 1st Circuit, which said Gertner shouldn't have declared damages unconstitutional without first trying to reduce them under the legal theory known as “remittitur.” That doctrine allows judges to reduce awards without first deciding whether the jury's assessment of damages violates the constitution.

The 1st Circuit sent the matter back to the trial court, where U.S. District Court Judge Rya W. Zobel is considering whether to reduce damages under the “remittitur” doctrine.

Meantime, Tenenbaum is asking the Supreme Court to accept his appeal of the 1st Circuit's ruling in the case. Tenenbaum ultimately would like the Supreme Court to rule that it's unconstitutional to impose damages of up to $150,000 per track when people share songs without a commercial motive.

"RIAA’s litigation assault on individual file-sharers, Tenenbaum and Thomas-Rasset among them, is procedurally unfair and profoundly unethical," Tenenbaum argues. "It pits an industry against an individual and punishes the individual for what others have done and will do. It seeks to punish him beyond any rational measure of the damage he conceivably caused ... for the ulterior  purpose of creating an urban legend so frightening to children using the internet, and so frightening to parents and teachers of students using the internet, that they will somehow reverse the tide of the digital future."