Commentary

Justice Department: $675K Verdict For File-Sharing Is Constitutional

The Department of Justice agrees with the record labels that a $675,000 copyright judgment against file-sharing defendant Joel Tenenbaum poses no constitutional problems.

In a brief filed this week, the Obama administration argues that any damages that fall within the range set by Congress ($750 to $150,000 per infringement) are lawful, even though Tenenbaum didn't have a profit motive when he shared 30 tracks.

"There exist situations in which actual damages are hard to quantify," the DOJ wrote in its brief. "In establishing the range, Congress took into account the need to deter the millions of users of new media from infringing copyrights in an environment where many violators believe they will go unnoticed. The harms Congress sought to address, moreover, are not negated merely because an infringer does not seek commercial gain."

The DOJ took a similar position in the Jammie Thomas-Rasset case. A jury ordered her to pay $1.92 million for sharing 24 tracks.

But the DOJ only addresses whether large damage awards are constitutional -- not whether the judges should reduce the awards for other reasons. In fact, DOJ says in its brief that trial judges have the discretion to reduce damages to the statutory minimum -- which in Tenenbaum's case would be $22,000.

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Tenenbaum and Thomas-Rasset are the only two file-sharing defendants to take their cases to juries out of more than 18,000 individuals sued by the Recording Industry Association of America since 2003. Many people who were targeted simply agreed to pay four-figure settlements rather than face the prospect of litigation and huge damage awards.

Still, despite winning in court, the RIAA's campaign was largely seen as a public relations disaster. What's more, the litigation cost the RIAA far more than it recovered, and record industry revenues continued to fall throughout the decade.

In December of 2008, the RIAA decided to end its campaign and instead work with Internet service providers to institute a "graduated response" to file-sharing. At the time, many observers speculated that ISPs might agree to cut off copyright infringers after repeated warnings -- but none have yet done so.

Coincidentally, the same week that the DOJ filed its papers concerning Tenenbaum, a report (now debunked) surfaced stating that Verizon had started disconnecting file-sharers.

In fact, Verizon sends letters to suspected file-sharers, but hasn't cut off anyone for alleged copyright infringement. "We don't want to disconnect our customers," Verizon spokeswoman Bobbi Henson tells MediaPost. "The intent of this program is to educate our customers. There's a lot of customer education work to be done around acquiring content legally."

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