Commentary

File Sharer Loses Bid To Slash $675k Damages Award

File-sharer Joel Tenenbaum has lost another round in his long-running battle with the Recording Industry Association of America.

Tenenbaum, who used a peer-to-peer network to share tracks, was found liable in 2009 for infringing copyright to 30 songs. A jury ordered him to pay $22,500 per track, for a total of $675,000.

Since then, the former student has been arguing that the award should be reduced. Today, U.S. District Court Judge Rya Zobel in Massachusetts rejected Tenenbaum's argument. "A rational appraisal of the evidence before the jury, viewed in the light most favorable to the verdict, supports the damages award," Zobel wrote in a 12-page decision.

Tenenbaum is one of thousands of people sued by the RIAA between 2003 and 2008 for file-sharing. Many of the others targeted by the RIAA agreed to pay four-figure settlements to resolve the litigation. But Tenenbaum was one of the only defendants to take his case to trial.

After a jury ruled against Tenenbaum in 2009, U.S. District Court Judge Nancy Gertner in Boston said the damages portion of the ruling was unconstitutional. She slashed the verdict to $67,500, or three times the statutory minimum. The copyright law provides for damages ranging from $750 to $150,000 per work infringed.

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The RIAA A appealed that ruling to the 1st Circuit, which said Gertner's decision was premature. That court said Gertner shouldn't have declared the damages unconstitutional without first deciding whether to reduce them under the "remittitur” theory. That doctrine allows judges to slash damages without making a decision about whether the award would violate the Constitution.

The 1st Circuit sent the matter back to the trial court, where it was heard by Zobel.

Tenenbaum asked Zobel to reduce the damages under the “remittitur” doctrine, and also again raised the argument that the award was unconstitutional, given that he didn't sell songs or otherwise act with a profit motive. “By all appearances, Congress never contemplated that non-businesses or non-competitors would be targeted as they have been in this unprecedented litigation campaign brought by the Recording Industry Association of America,” he argued in his legal papers.

Zobel rejected all of Tenenbaum's arguments.

Tenenbaum probably will try again to convince an appeals court to rule in his favor. At this point, he has little to lose to continuing to try to fight the decision.

Meantime, the RIAA is no longer suing individuals who allegedly infringe copyright via peer-to-peer networks. Instead, the RIAA and Internet service providers have forged a "six strikes" deal that calls for ISPs to take action against people who allegedly use peer-to-peer networks to upload or download copyrighted files. First, the ISPs will send warnings; if they prove ineffective, the ISPs will institute "mitigation measures," ranging from slowing down users' service to disconnecting them.

People will be able to contest the allegations, but critics question whether the procedures will be fair. Still, it's not likely that anyone will end up facing financial disaster as a result of the upcoming program.

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