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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), 19 Sep 2011 @ 12:08am

    Ignore top one...

    And then, the paragraphs are confused...


    Amazing. Let's recap everything that's occurred here:

    I thought we were having a debate here and I've kept my end of the bargain as best as I could.

    You implied that economic damages are difficult to prove. I told you it was not and provided examples. You implied that there was a correlation of lost sales to piracy and Tenenbaum's to blame for being the drop in the bucket for litigation. I showed you how artists have coped with the new technology while "copyright holders" flounder.

    Did you know that Gertner had already looked into the Jammie case? Did you know about the BMW standards and why she chose to ask the Constitutional question? Obviously not.

    But that's not all... You decide to say I'm an idiot and assert that through the rest of your anecdotes that I've failed in the conversation while bringing nothing to the table. No reports (which I've done), no logical reasoning (which I've done for you), and plenty of insults when your argument doesn't hold up under scrutiny (which I've not done).

    I'm showing research into why I feel the way I do, I'm answering the questions as well as giving a background, and I'm the idiot? HA!

    It's rather disappointing... But hey, no sweat off my back. As I said before, you're free to do whatever you want. If your argument doesn't hold water, I'll put some in to help you spot the holes. Call me whatever you like. ;)

    But know that I'm more than happy to notice how you've allowed your argument to falter just to continue attacking people that spot the problems of copyright enforcement. Maybe you should take some of the advice up there and read up on how to offer better alternatives. Just sayin. :)

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