Appeals Court Reinstates $675,000 Jury Award Against Joel Tenenbaum On Procedural Grounds

from the too-bad dept

Back in April, we went through the entire appeals court hearing concerning the appeal of Judge Nancy Gertner's reduction of the jury award in the Joel Tenenbaum case as "constitutionally excessive." The jury had awarded $675,000 or $22,500 per song. Gertner reduced it to $67,500, or $2,250, and argued that the higher rate was just ridiculous. Unlike Judge Michael Davis, who did something similar in the Jammie Thomas case, Gertner did not use the "remittitur" process.

As happens often enough in such things, almost nothing that was heard during the oral hearings really mattered in the decision. The question of due process and remittitur didn't even make it into the hearing -- or if it did, it was a very minor part that didn't make an impact. And yet, that issue was central to the court reinstating the original $675,000 award.

The key points here are really procedural. The court notes that Gertner jumped to the constitutional question, which judges are supposed to avoid if they can. The court also suggests that Gertner should have used the remittitur process, like Judge Davis, allowing the record labels to (as they would have) reject the lower amount and redo the trial. Of course, as we've seen in the Jammie Thomas situation, that seems to lead to a series of wasteful cases.

To summarize: the court here basically avoided the big questions and sent the ruling back, and reinstating the jury award because Judge Gertner jumped the gun, and went straight to the Constitutional questions, when there were still other steps in the process that needed to be taken. This seems disappointing and wasteful in terms of resources, but such are the rules.

Separately, the court, as pretty much everyone not named Tenenbaum or Nesson suspected, didn't give any weight at all to Tenenbaum's separate appeal arguing that the Copyright Act itself was unconstitutional. These arguments were never going to persuade the court, and seemed more like (wasteful) academic exercises all along. In particular, the court eviscerates the idea that mere "consumers" should be treated differently by copyright law than those who are doing more than consuming. It notes that such a distinction is not mentioned by Congress anywhere, and if it wanted to amend copyright law to fix that, it's had plenty of time.

So, for the most part, this ruling is procedural... though it does go out of its way to note that "this case raises concerns about application of the Copyright Act which Congress may wish to examine." Of course, by now we know that if Congress opened up the Copyright Act to tinker, the end result would almost certainly be worse.

Either way, I'm assuming this case is far from over, and Tenenbaum, Nesson and some other Harvard Law students will keep banging the drum -- though, to date, it hasn't been all that successful. This is definitely a disappointing ruling, but hardly a surprising one.

Filed Under: appeal, copyright, damages, joel tenenbaum


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  1. icon
    Jay (profile), 20 Sep 2011 @ 10:11am

    In response to...

    Link

    "You mention providing examples, but if I recall correctly your examples were the verdicts in three cases, and were not directed to the ease by which you believe actual damages can be proven."

    That was not the case. My argument is here. I'm criticizing the AC for his correlation and provided examples of ways They are losing artists to new methods of distribution, because they no longer represent the artist.

    Also, it should be noted, not every download is a sale per se. This is the problem with the critical AC who I was responding to. I have to ask, is the downloaded mp3 an alternative to other forms of media? Does it replace it? When a stream is watched, does that mean no one else can watch the same thing? That's the problems with the law as is. It's why I won't ever think this is a legal issue. The law just so happens to criminalize downloading unnecessarily, and the industry can't find ways to differentiate legal from illegal files, which makes the entire process even MORE difficult. These are just some of the problems I see in the suing strategy.

    "Even if economic damages were easy to prove in the context of a copyright suit, the law is clear that statutory damages can be sought in liew of actual damages even if no actual damage has transpired. This is no accident because one of the purposes of damages in any tort action is to "encourage" the defendant to stop engaging in the conduct that gave rise to the suit in the first place."

    Let's really think about this though... Did Tenenbaum, Harper, or Thomas harm the economic availability of the song through their download? Bear in mind, the songs are available illegally as well as legally. Whether on Kazaa or iTunes, can you really say that it harmed the artist?

    Can you say having a streaming service like Spotify, if it were around for these three, would have substituted these "sales", saving the industry a lot of hassle?

    What I noticed is people are focused on "yeah, she did it. Now she's got to pay something". The reason no one respects this law is because of the amounts it has charged with it. It doesn't matter that she's been in a jury trial or not. If the instructions say "pick a number between $750 - $150,000, and charge it per work" then how can you say that amount is going to effectively deter anyone else from filesharing?

    By now, everyone has read the Jammie Thomas case. They're familiar with the million dollar verdict. Has this stopped filesharing in any regard? If anyone is sued for copyright lawsuits, what is that based on? Right now, it's easier to just settle for a few thousand dollars than go to trial, which exposes the problem as it did here.

    The jury instructions read thusly:

    “Willful” means that a defendant had knowledge that her actions constituted copyright infringement or acted with reckless disregard of the copyright holder’s rights. You are hereby instructed that a jury in a previous trial has already determined that the defendant’s infringement of plaintiffs’ copyrights was willful. In this case, there is no issue as to the defendant’s liability for willful copyright infringement. As a result, your sole responsibility is to determine the amount of damages to be awarded to the plaintiffs for the defendant’s willful infringement of the plaintiffs’ copyrights.

    In this case, each plaintiff has elected to recover “statutory damages” instead of actual damages and profits. A copyright holder may recover statutory damages even if it did not submit evidence regarding actual damages. Under the Copyright Act, each plaintiff is entitled to a sum of not less than $750 or more than $30,000 per act of infringement (that is, per sound recording downloaded or distributed without license). Because the defendant’s conduct was willful, then each plaintiff is entitled to a sum of up to $150,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just.

    In determining the just amount of statutory damages for an infringing defendant, you may consider the willfulness of the defendant’s conduct, the defendant’s innocence, the defendant’s continuation of infringement after notice or knowledge of the copyright or in reckless disregard of the copyright, the effect of the defendant’s prior or concurrent copyright infringement activity, whether profit or gain was established, harm to the plaintiff, the value of the copyright, the need to deter this defendant and other potential infringers, and any mitigating circumstances.



    The bold is my emphasis. Rather than a range for all damages, the law is a sticking point. So unless the law is changed to have the prosecutors find economic damages (or the ranges go down), which enables statutory damages, there really isn't much more to say in how the litigation will continue to be pointless in regulating filesharing behavior.

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