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
    Karl (profile), 17 Sep 2011 @ 2:47am


    A disappointing ruling? Far from it. Where I stand, they got it right pretty much 100%.

    It was overturned on procedural grounds. Furthermore, it was also remanded, which means that Gertner will use the remittitur process to lower the award again, but give the RIAA the option of a new trial.

    (I didn't know that Gertner wasn't using the remittitur process, by the way. Sorry, Jay!)

    In contrast: the Thomas-Rasset reduction stays. Once the Tenenbaum trial goes through the remittitur process, the reduced damages will stay in his case as well.

    The other part is the first amendment challenge. It would appear that they also got this one right, showing once again that these sorts of attempt to try to sweep everying under the free speech rug just doesn't work out.

    "Sweep everything under the free speech rug?" Biased much?

    In any case, I don't think anyone here thinks any judge would rule that copyright, in and of itself, is unconstitutional. The First Amendment issues mainly come from the way copyright law is implemented (e.g. the ICE seizures, or the Wind Done Gone case).

    Hopefully some of the poster children (and tenured staff)

    You know, I don't think you know what "tenured staff" actually means.

    I can't speak for others, but I've written a couple of articles for Techdirt, and Mike never paid me a dime. We've never even met, in fact.

    And those "insider" labels under the comment icons? If you pay Techdirt $5, you can get one too.

    I know you have your tin-foil-hat conspiracy theories, and love to make false accusations about our motives in public. But the plain fact is, nobody is paid to post here. We post comments because we believe what we say, not because we're paid to say it.

    Unlike certain cowards, who will remain anonymous.

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