Commentary

File-Sharing Judge: Copyright Act Creates 'Deep Potential for Injustice'

The federal judge who presided over the recent file-sharing lawsuit by the record labels against grad student Joel Tenenbaum has joined the roster of critics who are asking Congress to reform copyright law.

"As this court has previously noted, it is very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written. It urges -- no implores -- Congress to amend the statute to reflect the realities of file sharing," U.S. District Court Judge Nancy Gertner wrote in a decision issued Monday. "There is something wrong with a law that routinely threatens teenagers and students with astronomical penalties for an activity whose implications they may not have fully understood."

This summer, a jury in Boston decided that Tenenbaum had used peer-to-peer software to unlawfully share 30 tracks and ordered him to pay a total of $675,000, or $22,500 per track. Federal copyright law provides for damages ranging from $750 to $150,000 per infringement.

Tenebaum's legal team has said it intends to file motions challenging the damages award. Gertner ordered Tenenbaum's attorneys to file those papers by Jan. 4.

Tenenbaum was the second file-sharer sued by the record labels to take his chance with a jury, and the second to lose big. In June, a jury in Duluth, Minn. ordered Jammie Thomas-Rasset to pay $1.92 million for sharing 24 tracks.

Thomas-Rasset has already asked the judge who presided over her case to slash the verdict, arguing that it's disproportionate to whatever harm she caused the record industry.

An earlier trial in 2007 resulted in a jury verdict of $220,000, or $9,000 per track. But U.S. District Court Judge Michael Davis in Minnesota set that verdict aside and ordered a new trial because of a mistaken jury instruction.

At the time, Davis expressed concern over the size of the award. "While the court does not discount plaintiffs' claim that, cumulatively, illegal downloading has far-reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by plaintiffs," he wrote.

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