In a friend-of-the-court brief filed this week with the First Circuit Court of Appeals, the EFF argues that "exemplary damage awards that are grossly excessive" are unconstitutional because they don't serve any legitimate purpose. What's more, the group argues, such awards potentially dissuade people from entirely legitimate forms of expression. "Without balance, and especially where there is no evidence of actual harm or reprehensibility, excessive statutory awards can stifle creativity and innovation that involves even a small risk of copyright liability," the EFF argues.
The organization is urging the appellate court to uphold U.S. District Court Judge Nancy Gertner's ruling slashing the amount Tenenbaum must pay for sharing 30 tracks to $67,500. The jury had ordered Tenenbaum to fork over $675,000, or $22,500 for each of the 30 songs he shared.
Even though the copyright statute provides for damage ranging from $750 to $150,000 per work infringed, Gertner ruled that the jury's award violated his right to due process of law because it was "grossly excessive" considering that Tenenbaum hadn't attempted to make a profit by sharing the music.
The Recording Industry Association of America filed an appeal; the group says that Gertner's decision marked the "elevation of [her] own policy views over those of Congress" and that the jury's $675,000 award against Tenenbaum was justified. "By putting copyrighted works in the public domain for free, Tenenbaum contributed to the continuing decline in the value of copyrighted sound recordings," the RIAA argues. "Given that file-sharing has cost the industry billions of dollars, there is no basis to question the award here."
But the EFF points out that allowing juries to ding people $150,000 for copyright infringement also carries a cost. "Permitting excessive statutory damage awards without due process review chills speech, expression, creativity and innovation," the group argues.
The organization goes on to provide examples of instances where copyright holders threatened groups who arguably made fair use of material. For instance, in 2009 National Public Radio sent a cease-and-desist letter to the anti-gay marriage group Stand for Marriage Maine, which used 20 seconds of NPR material in an ad. And in 2008, major news organizations complained that the campaigns of both presidential candidates wrongly used short clips of news shows in ads. "In all of these cases, there was no evidence of actual harm to the media giants that owned the copyrights," the EFF argues. "Even so, the candidates each faced a potential judgment of up to $150,000 per video clip."