Joel Tenenbaum Loses Again; Bad Cases With Lying Defendants Make For Bad Law

from the unfortunate dept

From very early on, we pointed out that Joel Tenenbaum's defense to being sued by the record labels was a complete and total train wreck. There were some legitimate legal issues to be raised, but on the whole, Tenenbaum's legal team either failed to raise them, or raised them so ridiculously that they were dismissed out of hand. At points, it appeared that they bet the whole game on the idea that downloading music would be seen by the court as "fair use," when that was almost certainly never going to fly (and when the court rejected it, it seemed like Tenenbaum's lawyers had no backup plan). This was all made much, much, much worse by the fact that Joel Tenenbaum was a terrible defendant. He never should have gone to trial and should have taken the first settlement offered to him for a very simple reason: he was guilty of massive amounts of file sharing, and there was no way he was going to get around that point in a trial. Even worse (much worse) he then lied, repeatedly, about this. It's stunning that he didn't just settle and move on. This was a clear cut case where he had no case, and fighting it has only served to set bad to awful precedents, each time clouded in large part by his behavior outside of just the file sharing.

So it's no surprise that, on yet another appeal, Tenenbaum has lost again, as the appeals court has sided with the second district court ruling, which said that a $675,000 award for sharing 30 songs was perfectly reasonable. There is a legitimate issue of whether or not $22,500 per song for songs that were uploaded non-commercially is constitutional. But, partly because of Tenenbaum's own bad behavior, the court has no problem at all with an award that high.
On appeal, Tenenbaum invites us to assume that he is "the most heinous of noncommercial copyright infringers." We need not go so far as to accept his offer. The evidence of Tenenbaum's copyright infringement easily justifies the conclusion that his conduct was egregious. Tenenbaum carried on his activities for years in spite of numerous warnings, he made thousands of songs available illegally, and he denied responsibility during discovery. Much of this behavior was exactly what Congress was trying to deter when it amended the Copyright Act. Therefore, we do not hesitate to conclude that an award of $22,500 per song, an amount representing 15% of the maximum award for willful violations and less than the maximum award for non-willful violations, comports with due process.
Basically, an award this high is okay because Tenenbaum was a brat. The court argues that because he was such a brat an award this high makes sense because it fits in with the "deterrent effect" intended by statutory damages awards. Of course, if you think about that logically, it makes little sense, because by Tenenbaum's own actions, it appears that nothing was going to deter him from file sharing, just as other giant awards and greater levels of punishment have done little to nothing to deter others from file sharing. But, all of that is blurred by the fact that he lied, which mucked up the entire case, combined with a really piss poor strategy in court that never seemed to reach a point that was even half-baked.

There are legitimate questions about the constitutionality of copyright's statutory damages awards, which are nowhere near proportionate with the "wrongs" they are supposedly "righting." But, you don't get good rulings on difficult cases when you have a defendant who acted badly and lied during discovery. Instead, you get a bad precedent like this one.

Filed Under: constitutional, copyright, due process, joel tenenbaum, statutory damages

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  1. icon
    Mike Masnick (profile), 26 Jun 2013 @ 12:03pm


    So we should stop meting out punishment or holding people liable for their unlawful conduct? DO you seriously think that there wouldn't be an explosion of infringing if all penalties and liability were removed?

    I didn't say all penalties and liability should be removed. Why must you always lie? It's pretty sick.

    I said that the court justified the high amount solely because of the supposed deterrent effect. But if there's no proven deterrent effect, then that entire argument goes away.

    As such it would go back to liability based on a reasonable look at the harm caused, which I think is fine.

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