Tenenbaum To Supreme Court: Let's Get This Constitutional Debate On Statutory Rates For Copyright Infringement Rolling

from the or-the-trolls-win dept

You may recall that, in the case of Joel Tenenbaum — who is in a legal battle with some major lbels for file sharing — a jury awarded the labels $675,000 for the sharing of just a few songs. The judge, Nancy Gertner, pointed out that this seemed unconstitutionally excessive and reduced the award to $67,500 — knocking 90% off the jury’s award. The appeals court in the case reinstated the original $675,000 on procedural grounds. It said that Judge Gertner jumped the gun in leaping to the constitutional question, rather than using remittitur, as had been done in the Jammie Thomas case. Remittitur would allow the RIAA to have the case happen all over again with a new jury. In the Jammie Thomas case there have already been three trials.

Tenenbaum, led by famed lawyer/law professor Charles Nesson, challenged the appeals court on all of this, but had that quickly rejected. As we noted at the time, Nesson seemed to (as he’s done in the past) argue points unrelated to the specific legal questions at issue. This seemed like a bad way to go about things in a court of law, even if it may help in the court of public opinion.

The latest is that Tenenbaum/Nesson have filed to raise the issue with the Supreme Court. At least the argument here is a bit more focused on the requirement for remittitur, with Tenenbaum’s team arguing that the statutory damages for non-commercial use is clearly a major Constitutional issue, and by forcing it through the remittitur process, all the courts are doing is pressuring people like Tenenbaum to settle, rather than ever allowing it to be judged on constitutionality. And that has consequences — namely in enabling copyright trolls to shake people down, without ever allowing them to challenge the constitutionality of massive statutory damages.

I actually think this is a much more persuasive argument than I’ve seen from Team Tenenbaum in the past, but it seems unlikely that the Supreme Court will actually take the case on. I hope I’m wrong (and then, if I am wrong on that, I hope I’m wrong in my guess as to how it will come out, because this version of the Supreme Court doesn’t appear to understand the issues around copyright law). Either way, we should find out soon enough.

I do think it’s interesting that Nesson is using the copyright troll issue as part of the argument. Eventually, this or an issue like it will get to the Supreme Court, and hopefully the Justices realize just how damaging such practices can be:

They use the asymmetric cost of litigation to make defense by the individual economically irrational.

This Court should do everything it can to remedy this misuse of process. Its effects are not ended because the RIAA has ceased suing individuals. Others are using the legal structure and litigation tactics they have put in place.4 The weight of federal litigation is not a tool appropriately used to suppress legal challenge. The absence of cases pending in the federal courts highlights the problem: a deeply misshapen judicial architecture has been set in place. Without review, it is unfixable. The suppression of ability to challenge a process that is repeatedly producing appalling results, not circuit splits, is exactly why this case is worthy of this Court’s present attention.

It’s an interesting argument to get around the lack of a circuit split (conflicting rulings in different circuits, which is one of the key reasons why the Supreme Court agrees to hear certain cases). However, I just don’t think the Court will think it’s a big enough deal to jump on it, perhaps figuring that it can bounce back up eventually. Of course, that only underlines the point: for that to happen, it means years more of Tenenbaum’s time wasted with this case. That seems unfortunate.

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Comments on “Tenenbaum To Supreme Court: Let's Get This Constitutional Debate On Statutory Rates For Copyright Infringement Rolling”

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That Anonymous Coward (profile) says:


Yeah but things aren’t looking so bright for them right now.
In Hawaii a state court threw out the claim of $10k for Negligence for having open or hacked wifi.
In Florida a Judge ruled that an IP Address does not equal a person.
And now in California a Judge has handed a blow to the trolls, killing 15 cases with 1 blow.
?Based on Plaintiff?s own reliability claims, there may still be a 20 to 50 percent chance that this court lacks jurisdiction,? Judge Pregerson writes in his order.

While some trolls are still forum shopping cases, supposed to be a nono but still happening, the law is slowly catching up with their tactics.

These actions are different then the Tenebaum case where he shot himself in the foot in open court, but leaves us with the larger issue of how does $150,000 for noncommercial infringement make any sense. The law seems written to punish someone making physical copies and selling them depriving income that way, but it is being applied to cases where this did not happen. If you wanted to hear them scream you’d make the law simple. If you infringed in a noncommercial way you owe them current retail value of the product. Afterall every download is a lost sale they tell us. I highly doubt we’d see these dubious cases proceeding anymore, and it still lets them go after real counterfeiters who are denying them income by making fakes of their products and win big money… (but even they don’t bother anymore.)

Anonymous Coward says:

This is a big part of the problem with alot of the issues we’re seing, i.e. copyright, patents, the “just business” slogan

The best place to fix a problem is at its roots, and this so happens to be one of those roots

If you try to fix only the individual PROBLEMS, CAUSED by these ROOTS, you only end up fixing THAT particular problem i.e. SOPA, whereas, if you fix the root, you’d get a beneficial ripple affect, from within, which should spread out to all the problems, unless you’ve got influential stubborn greedy people , within their particular sphere of control, fighting it, but again, this is still the best way to deal with them

It just baffles me that there is no SOPA like ressistence to stories like these

The eejit (profile) says:


Let’s round it up to $100, just to be safe.

However, for commercial infringement (that is, where the act of infringement directly accrues money, and NOT just ad revenues, but direct “yay, cash!” stuff) I’d say 100-200 times that amount, as it’s solely for financial gain.

Added to this, cyberlocker sites would be protected, at least in part, as you’re paying for the storage, and not the distribution.

That Anonymous Coward (profile) says:


The sad thing is, and I don’t know what tracks they actually were, some of the tracks might not have been available as the labels love to hold things back and ignore the cash they could be earning. So it would be hard to set a price on those.

And the share ratio isn’t a good indicator to use as it could have been broken up over multiple peers, so he might not have shared a complete copy with anyone.

Trying to hold him responsible for the actions of others who might have participated in the swarm would merely allow the labels to double, triple dip on recovering their “losses”. So they would need to be capped at what he actually possessed, and no fanciful claims of but but 1000000000 people also downloaded it and he needs to pay for each of them as well!

So $30 and call it a day.

Anonymous Coward says:

If the supreme court heard this case the idiots would probably make the wrong decision with no thought about what the impact of their ruling would be.

I mean look at Citizen’s United, shady ‘outside’ groups with zero accountability to anyone are now heavily outspending politicians, thanks to 5 idiots on the court who overturned a century’s worth of established law. If you thought congress and our politicians were bought and paid for by Wall Street and other giant corporations before, you have no idea how much worse the problem just became from Citizen’s United. Worse yet, FOREIGN corporations can now influence our elections by creating or donating to Super PACs which buy off our politicians. That wasn’t possible before when corporations were banned from contributing any money to anything.

Anonymous Coward says:

in most instances, not only is the judge technology retarded but so are the jurors. if a sensible approach were to be taken, there would be much lower amounts quoted. that means that these ridiculous sums for doing so little ‘wrong’ will be pursued by the entertainment industries for as long as possible. the amounts they seek contribute towards lawyers costs which then make the cases worth going to court over. that and of course, the entertainment industries ego needs constant reinforcing!

Anonymous Coward says:

How come the thousands of people dismissed from the copyright troll cases haven’t turned around and filed a class action malicious prosecution lawsuit against the labels? “We never infringed, and even if we did, they filed suit against us improperly then never refiled once they figured out they have to pay $350 per person to do it.” Certainly would be interesting to have a class of John Doe plaintiffs since the labels seem hell-bent on identifying John Doe defendants.

ltlw0lf (profile) says:


I still say it needs to be $100, but the record labels only keep $30, the other $70 goes to the court for having wasted their time over $30 bucks.

But then that would leave an open pot of money for the President/Congress to raid. No thanks. We already have that problem here in California where our Governor has decided to raid open pots of money in the California judicial system. If the court would put it to good use, as in funding low cost defense of troll victims, it would work, but otherwise, it is just another tax.

teka (profile) says:


Because the common Joe & Jane Sued Public does not have the money or the will to start a legal battle.

For most people a lawsuit is not something you look forward to, it is an excruciating process that can leave you broke even if you win under the letter of the law. Combine that with having million-dollar legal teams waved at you and a media system (controlled by the same people you would sue in some cases) that loves talking about these few cases the media groups have won and never mentions the loses and you have a recipe for fear.

Gwiz (profile) says:


It’s not meant as a way to recover losses. Its meant as a way to make an example of a select few.

And it seems to have failed two-fold for the RIAA:

1) Public opinion of the RIAA and the major labels has suffered greatly due to these lawsuits.

2) With such huge awards that are so far removed from reality, the public is losing respect for copyright laws in general.

G Thompson (profile) says:


The complete list of 30 songs is

01 – Incubus – New Skin
02 – Green Day – Minority
03 – Outkast – Wheelz of Steel
04 – Incubus – Pardon Me
05 – Nirvana – Come As You Are
06 – Green Day – When I Come Around
07 – Green Day – Nice Guys Finish Last
08 – Nirvana – Heart Shaped Box
09 – Nine Inch Nails – The Perfect Drug
10 – Blink 182 – Adam’s Song
11 – Limp Bizkit – Rearranged
12 – Limp Bizkit – Leech
13 – Linkin Park – Crawling Hybrid
14 – Deftones – Be Quiet And Drive
15 – The Fugees – Killing Me Softly
16 – Red Hot Chili Peppers – Californication
17 – Red Hot Chili Peppers – By The Way
18 – Red Hot Chili Peppers – My Friends
19 – Beck – Loser
20 – Eminem – My Name Is
21 – Eminem – Drug Ballad
22 – Eminem – Cleaning Out My Closet
23 – Beastie Boys – (You Gotta) Fight for Your Right (To Party)
24 – The Ramones – The KKK Took My Baby Away
25 – Monster Magnet – Look To Your Orb For The Warning
26 – Aerosmith – Pink
27 – OutKast – Rosa Parks
28 – Rage Against The Machine – Guerrilla Radio
29 – Goo Goo Dolls – Iris
30 – Aerosmith – Water Song/Janie’s Got A Gun

For those who want some LULZ this complete track list can also be found as a torrent with the last part called “hugs to the RIAA” in fact I seem to recall a blogspot blog called itoodownloadedthem or something like that.

trollificus says:


Ummm…that’s obvious, easy to see, and a total load of crap.

Are you saying our politicians weren’t bought off before the Citizens United case??

Are you trying to say that every effort at “campaign reform”, being created by incumbents, has NOT been and “incumbent protection program”????

Are you really going to say that whoever gets the most air time will be elected despite the wishes of the public…without blaming the public in any way??

Bleh. I’m always surprised that people who believe such simplistic crap are able to produce complete sentences.

charlie nesson says:


thanks mike. but curious to know which of the issues we’ve sought to raise were off the point? opening the case to internet coverage? constitutional challenge to statutory damages against individual consumer? statutory construction issue re the same? fair use for napster users when there was no fair alternative? error in instructing the jury that it could award up to $4.5 million dollars?

That Anonymous Coward (profile) says:


What remained in his possession was 30 tracks.
If you want to go after all of the kajillion other people who might have downloaded it from him, then go after them.
To try otherwise means they are holding 1 person responsible for the actions of others, getting paid for those bad acts and still have the chance to collect AGAIN for the same “crime” for others for the same amount.
The downside is someone could argue that as they are seeking all of this cash from 1 person to cover the “losses” of every other person who gets copy is that there can be no future recovery on those tracks for being shared.

There is always another way to look at things, and I think it is high time they be forced to prove actual damages rather than being nebulous about them just being “massive”.

That Anonymous Coward (profile) says:


Because they were never named in a legal case and they were never served in a legal case.
All troll communications are considered settlement negotiations.
This is why unless you admit guilt, blame a roommate, or a gullible enough to accept that a 3rd party using your router without your consent means your liable in some way they never name anyone in court.
The list of named defendants is a TINY fraction of the 250,000+ Does who have had their information sought.

A few very angry people have sued the trolls, and the trolls have bent over backwards to get out of those cases. Its how it was entered into the court record that 1 firm who has had over 118 cases covering thousands of Does had served… 0 Does.

And here is my regularly scheduled shout out to 2 “Does” who have done way more research than the courts and are arming targeted Does with good information to counter the fear tactics.
Run by Sophisticated Jane Doe aka SJD. SJD comments here from time to time mostly on copyright cases. OHAI SJD!
Run by DieTrollDie aka DTD. DTD has the dubious honor of having John Steele showing up and making comments trying to scare the Does reading the site. Must be doing something right when one of the larger trolls is so scared of the work being done they take time to show up and spread FUD.

Anonymous Coward says:


“Because they were never named in a legal case and they were never served in a legal case.”

The RIAA seems to think that an IP address is a person, right? Imagine if one person filed a class action lawsuit alleging the labels really had no intention of suing but of engaging in extortionate settlement demands. I’m sure you could craft an argument for really something like attempted malicious prosecution. Better yet, go buy a CD legit then break it. Download over and over until they sue. It’s clearly fair use, and you could argue that the suit is malicious because mere downloading isn’t evidence of infringement. I don’t think it really matters if you win. The point is to fight back and make these trolling tactics much more expensive and difficult.

Anonymous Coward says:


I think we have less to worry about from foreign corporations than from home grown ones, to be honest.

That said, I’ve screamed my head off about this ruling enough that I’m blue in the face, and still some n00b always comes along and tells me corporations have ethics and need to be allowed to express their personal beliefs.

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