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Legal
Tenenbaum lawyer calls damages “absurd”
By CMU Editorial | Published on Friday 26 February 2010
Following the recent decision of a US court to slash the damages famous file-sharer Jammie Thomas must pay the record industry after being found guilty of copyright infringement, from $1.92 million to $54,000, lawyers for that other famous American file-sharer, Joel Tenenbaum, were in court this week trying to get his $675,000 damages payment similarly slashed.
As previously reported, once found guilty of file-sharing, under US law you can be ordered to pay anything between $750 to $150,000 per copyright infringement in statutory damages. So whatever unit figure the judge or jury picks within those rather wide-reaching parameters is applied to every track that the record labels can prove the file-sharer downloaded. In Tenebaum’s case he was ordered to pay damages of $22,500 for each of the 30 tracks he admitted to illegally downloading.
But, while admitting the jury had correctly applied the law as it is written in the Tenenbaum case, the file-sharer’s lawyer Charles Nesson said in court this week that doing so had “produced absurd results” and a grossly excessive award that violated his client’s constitutional rights.
He also argued that the $675,000 figure wasn’t in the spirit of the law, arguing that he couldn’t believe that US Congress intended for individuals of limited means, like Tenenbaum, to be faced with damages payments of that size when they passed the relevant laws in 1999. He concluded by pointing out the 30 tracks Tenenbaum admitted to downloading were commercially available via iTunes for 99 cents each, from which the labels would get 70 pence. The real loss to the record industry therefore, Nesson argued, was $21.
But lawyers for the US record industry argue that when Congress wrote the relevant Digital Theft Deterrence And Copyright Act in 1999 they very much intended for individual infringers to be faced with staggering damages payments, so to provide a deterrent that might stop others from infringing. And this week they brought a letter from the US Department Of Justice to court to back up that claim.
Plus, of course, presumably there is the issue that by making tracks available to others to illegally download via a file-sharing network, Tenenbaum potentially deprived the record labels of a lot more seventy cents than just those related to his own original illegal downloads of the thirty tracks in question.
While previously defending the Tenenbaum ruling, the judge who oversaw the case, Nancy Gertner, has always been upfront about the fact that she is no fan of the way the Recording Industry Association Of America has attempted to protect its copyrights in the last decade. And at this week’s hearing she indicated that she very much sympathised with the Tenenbaum camp on the damages issue. According to the Boston Globe, addressing the RIAA’s legal rep she said: “I’m not saying it was wrong to bring the case…or to hold people’s feet to the fire’. But is there another case in the galaxy that’s held up damages to this degree?”
Whether that means Gertner now plans to reduce Tenenbaum’s damages obligation remains to be seen. If she doesn’t – or if any cut is nominal – it is likely Nesson will proceed with a full appeal.
