UPDATE: 1st Circ. Lowers the Boom on Tune-Infringin' Tenenbaum

Perhaps it was illegal download overload after years of blogging about BU grad and former online music lover Joel Tenenbaum (see "TUOL" posts 5/21/12, 9/19/11, 7/9/10, 8/3/09 & 7/28/09), but we were remiss in not reporting a decision late last month by the United States Court of Appeals for the First Circuit in Sony BMG Music Entertainment et al. v. Joel Tenenbaum (Case No. 12-2146) upholding the recording companies plaintiffs' $675k judgment against the defendant for illegally downloading copyrighted songs on defunct KaZaA and other peer-to-peer music networks.

In a decision written by Judge Jeffrey Howard, the appellate court noted that the defendant over the years 1999 to 2007 downloaded and distributed copyrighted music across various peer-to-peer platforms without permission. The amount of the judgment, pursuant to the damages provision of the Copyright Act [17 U.S.C. sec. 504(c)] allows for an assessment of between $750 and $150,000 for each instance of infringement. Damages were assessed against Tenenbaum for 30 purported illegal downloads at $22,500 apiece, or 15 percent of the maximum penalty, to reach the $675k award.

Tenenbaum argued the damages award violated his due process rights and were out of whack, contending that a more reasonable sum would be $450, reached by estimating each of the 30 albums illegally downloaded costs $15. The First Circuit, however, said such a calculation ignores the actual damages suffered by the plaintiffs, the challenge of proving copyright infringement, and most important, the deterrent effect of Section 504. The opinion acknowledged that Congress specifically amended The Copyright Act [17 U.S.C. sec. 101 et seq.]  to prevent music piracy through statutory damages.

Judge Howard made no effort to conceal the appellate court's disdain for the defendant's conduct, noting how Tenenbaum allegedly continued to download songs despite warnings from family, BU and others, and pointing out how Tenenbaum did not own up to his actions during Discovery in the case, initially blaming burglars, and then a foster child living in his family's home, for the downloading activities. The court emphasized that Tenenbaum testified at trial to downloading as many as 5000 songs, not the mere 30 for which he was held liable.

The devoted staff of "TUOL" (which is listening to music as it prepares this post) believes there is a genuine legal question over whether the copyright infringement damages authorized by the statute are disproportinate in non-commercial downloading cases such as this one. Unfortunately, an unsympathetic defendant and a questionable trial strategy by his defense team resulted in an outcome that doesn't satisfactorily reach that question. A corollary of the old legal bromide, "bad cases make bad law," is that misconduct leads to missed opportunities for legal reform.