• by Wendy Davis  @wendyndavis, March 13, 2009

Awarding the record industry damages of up to $150,000 for each track allegedly shared online would be unconstitutional, grad student Joel Tenenbaum argued this week in new court papers.

"By threatening noncommercial defendants like Joel with the maximum statutory damages for willful infringement, the recording industry impedes his constitutional guarantee to due process of law," Tenenbaum's lawyers argue.

Federal law provides that the minimum award for copyright infringement is $750 per violation, while the maximum can be as high as $150,000.

In his brief, Tenenbaum argues that these figures are "grossly excessive" for defendants who don't sell pirated music or otherwise profit from it, and is asking the judge in the case to rule that the damages provided for in the statute don't apply to non-commercial infringers.

A similar argument was raised in the only case to go to a jury trial--the lawsuit against Minnesota resident Jammie Thomas. In that case, the jury found Thomas liable and ordered her to pay $220,000, or $9,250 per track, spurring Thomas to argue that the damages were disproportionate to any harm suffered by the record industry. The judge in the case, Michael Davis, declared a mistrial on other grounds. But in his opinion, he wrote that damages were inordinately high and called on Congress to change the law.

The record industry has previously argued that the statutory damages are lawful because they "reflect a carefully considered and targeted legislative judgment intended not only to compensate the copyright owner, but also to punish the infringer, deter other potential infringers, and encourage vigorous enforcement of the copyright laws."

In another case, judge Xavier Rodriguez in San Antonio, Texas ordered 20-year-old Whitney Harper to pay only $200 a track for file-sharing. Rodriguez justified that ruling on the theory that Harper, a high school student at the time she shared files, was an "innocent infringer."

From 2003 through late last year, the RIAA sued or threatened to sue around 35,000 individuals for file-sharing. Many agreed to pay four-figure sums to settle the charges without a trial. Late last year, the RIAA said it would stop bringing new cases against individuals, but that lawsuits already in the pipeline, like the high-profile Tenenbaum case, would continue.

The Tenenbaum case garnered headlines earlier this year when Judge Nancy Gertner granted Tenenbaum's motion to Webcast proceedings. The First Circuit Court of Appeals later stayed that ruling.