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.

UPDATE: O, Tenenbaum, O, Tenenbaum, the High Court Says It's Over

(Photo credit: Wikipedia)The United States Supreme Court today denied certiorari in Tenenbaum v. Sony BMG Music et al. (Docket No. 11-1019), leaving former Boston University student Joel Tenenbaum of Providence, Rhode Island, on the hook for a $675,000 copyright infringement jury award to the Recording Industry Association of America.

Justice Stephen Breyer and Chief Justice John Roberts did not participate in the ruling, according to the Associated Press. Harvard Law School Prof. Charles Nesson filed a petition for certiorari on February 13, 2012, seeking to overturn a jury verdict that awarded the RIAA $22,500 for each of 30 songs Tenenbaum unlawfully downloaded and shared from the now-defunct peer-to-peer network KaZaA in 2004.

The petitioner had asked the High Court to address whether the damages provision of the U.S. Copyright Act [17 U.S.C. sec. 504] "applied to noncommercial individuals without requirement of nexus with actual damages." U.S. District Court for the District of Massachusetts Judge Nancy Gertner reduced the damages award as excessive, but the United States Circuit Court of Appeals for the First Circuit reinstated the jury verdict last year. (See "TUOL" posts 9/19/11, 7/9/10, 8/3/09 & 7/28/09.)

UPDATE: 1st Circ. Tells Tenenbaum He Should've Quit While He Was Behind

Image via WikipediaIn Sony BMG  Music Entertainment et al. v. Joel Tenenbaum (Case Nos. 10-1883, 10-1947, 10-2052), the United States Circuit Court of Appeals for the First Circuit last week reinstated the $675,000 judgment awarded the Recording Industry Association of America ("RIAA") in 2009 against Boston University student Joel Tenenbaum in a copyright infringement suit arising from his downloading of 30 copyrighted songs in 2004 from the defunct peer-to-peer network KaZaA (see "TUOL" posts 7/9/10, 8/3/09, 7/28/09).

The appellate court faulted now-retired U.S. District Court for the District of Massachusetts Judge Nancy Gertner for ruling the judgment was "unconstitutionally excessive" and reducing it to $67,500. A jury had found Tenenbaum's infringement by downrighting copyrighted tunes from Beck, Nirvana and other artists to be willful and assessed damages of $22,500 for each of the 30 songs, within the damages range permissible under the copyright statute (17 U.S.C. sec. 101), which Judge Gertner slashed by a factor of ten to $2,250 per song.

The appellate court said Judge Gertner erred procedurally by tackling the constitutionality question before addressing Tenenbaum's remittitur motion (a request for a judge to reduce a jury award). The First Circuit in its 65-page decision did suggest "Congress may wish to examine" some of the Copyright Act issues raised by the case.

Defense attorneys contended that the Digital Theft Deterrence Act and federal copyright provisions were not supposed to target consumers. Tenenbaum appealed Gertner's finding, saying at the time that he couldn't afford to pay $67,500, so the four victorious record labels shouldn't step up their spending in anticipation of getting a $675,000 money order from Tenenbaum anytime soon.

UPDATE: Judge Reduces Damages KaZaA-Lovin' Grad Student Must Pay RIAA

Image via Wikipedia

U.S. District Court for the District of Massachusetts Judge Nancy Gertner's 62-page order ought to be music to the ears of notorious P2P Boston Univ. grad student Joel Tenenbaum and no doubt struck a sour chord in the halls of the Recording Industry Association of America ("RIAA").

 Judge Gertner ruled that the amount of damages the jury determined that Tenenbaum owed record companies for unlawfully downloading copyrighted songs was "unconstitutionally excessive." In Sony BMG Music Entertainment et al. v. Joel Tenenbaum (Case No.  07-cv-114446), the jury awarded four record companies $675,000 in total for Tenenbaurm's 2004 downloading of 30 copyrighted songs from defunct peer-to-peer network KaZaA, including Beck's Loser and Nirvana's Come As You Are, that he proceeded to share online.[See "TUOL" posts 8/3/09 & 7/28/09.]

Judge Gertner reduced the judgment against Tenenbaum to  $67,500, one-tenth of the jury's award. She said that the damages amount was still severe and a deterrent to others who might infringe on copyrighted works, Judge Gertner said her ruling also makes clear that the constitutional protection against excessive punitive awards applies equally to "ordinary people" such as the BU grad student as it does to large corporations.

Tenenbaum told The Boston Globe that he was pleased by the reduced award, but hastened to add that the $67,500 judgment was beyond his ability to pay as well.  Here's some unsolicited legal advice to the defendant from the crackerjack "TUOL" legal team: when a 5-star gourmet restaurant comps your meal, it's not polite to ask for seconds.

P2P Copyright Infringement Trial Going Downhill for Downloader

Image via CrunchBase

The second music downloading lawsuit to go to trial among the 18,000 such claims brought by the recording industry against end-users began inauspiciously for the 25-year-old Boston University grad student defendant who has not denied downloading 30 copyrighted tunes from the KaZaA peer-to-peer network in 2004.

In an unusual Email Order to the parties at 1:37 a.m., U.S. District Court Judge for the District of Massachusetts Nancy Gertner rejected the key "fair use" argument advanced by Joel Tenenbaum's lead counsel, Harvard Law Prof. Charles Nesson, which may prove a death blow to the defense in the case (Capitol Records, Inc. v. Noor Alaujan, Case No. 03-cv-11661; Sony BMG Music Entertainment et al. v. Joel Tenenbaum, Case No. 07-cv-114446).

As a prelude to her full opinion to come, Judge Gertner wrote: "Tenenbaum proposes a fair use defense so broad that it would swallow the copyright protections that Congress has created. Indeed, the Court can discern almost no limiting principle: His rule would shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment."

The Recording Industry Association of America (RIAA) has recently shifted its emphasis from suing end-users, often college students of limited means, to trying to deter Internet Service Providers who offer the connections of KaZaA-type services to the end users. Nevertheless, the RIAA prevailed in the first trial of a P2P infringement case against a Minnesota woman in June who was ordered to pay $1.92 million to the Vivendi-owned Universal Music Group for illegally downloading 24 songs. Many of the 18,000 claims have been resolved by the defendants settling with the music companies by forking over damages in the range of $2,000 or $3,000.

If the five men and five women who make up the jury in the Tenenbaum case should find against him and award statutory damages, Judge Gertner has indicated that she may hold a post-trial hearing to ensure that the award is not excessive. Each of the 30 allegedly illegally downloaded songs could result in damages ranging from $750 to $150,000 (for "willful infringement"), so that in a worst-case scenario, were Tenenbaum to lose, he could face a $4.5 million judgment.