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Tenenbaum pushes for cut in damages and all out appeal hearing
By CMU Editorial | Published on Wednesday 6 January 2010
Joel Tenenbaum yesterday filed a motion to the US courts in a bid to reduce the $675,000 in statutory damages that he was ordered to pay after losing his legal fight with the Record Industry Association Of America last year.
As much previously reported, Tenenbaum was one of the few of the thousands of US file-sharers sued by the RIAA who decided to defend himself. Even though the RIAA has ended its self-harming sue-the-file-sharers campaign, it has decided to see ongoing legal claims to their conclusion, which is why Tenenbaum ended up in court last summer to present his defence.
He was represented by a Harvard law professor who promised a watertight defence that would bloody nose the arrogant music industry. But, in the end, the prof presented the same old arguments that had been dismissed in other courts before, and Tenenbaum promptly lost the case, to the tune of $657,000. That figure was based on statutory provisions under US copyright law that allows damages of anywhere between $750 to $150,000 for each copyright infringement – Tenenbaum was accused of sharing 30 named tracks.
Maths experts will quickly work out that the RIAA were awarded $22,500 per infringement in the Tenenbaum case. His new motion says that, while well within the statutory damages range, that figure is wholly “disproportionate to the offence and obviously unreasonable”, citing a constitutional responsibility on the courts to be proportionate in any sanctions they issue. Of course proportionality is an intangible concept, and many US judges would argue that in the case of statutory damages anything within the parameters set down by American lawmakers is, by definition, proportionate.
Tenenbaum cites some US cases where damages awarded by one court were considered disproportionate on appeal. Like that other famous file-sharer – who is similarly fighting the $1.92 million in damages she was ordered to pay after losing in her attempts to fight an RIAA lawsuit – one key case cited is BMW v Gore. In that case the US Supreme Court ruled that punitive damages awarded to Gore in the initial case were too high, adding that the lower courts had to “bear in mind actual damage and the severity of punishment” required when awarding punitive damages.
Which is all well and good, but BMW v Gore was dealing with punitive damages, not statutory damages. I won’t bore you with the difference, but it’s an important distinction. And, as previously reported, just last year a US court – in the case of Verizon v OnlineNIC – specifically said that the principle in BMW v Gore did not apply to statutory damages (more on that here).
Elsewhere, Team Tenenbaum are pushing for an appeal hearing, claiming that the defence’s fair use arguments and the fact the file-sharer had made a nominal out-of-court settlement offer to the RIAA (to pay $500 in damages) were not properly considered in the first trial. The latter is unlikely to have made any difference even if it had been considered in court, though the fair-use arguments were expected to play a much bigger role in the first court hearing.
Though even there the defence are on dodgy ground with little legal precedent to rely on. Though some argue that there is grounds for claiming that because the record industry refused to sell their music online in the early days of the internet – obsessed, as they were, with propping up the CD market – that those who accessed music illegally on the net during that time were justified in doing so.
Of course, there is no legal onus on record companies to sell their music via the net, though some reckon copyright owners have an unwritten responsibility to provide fairly priced access, to the material in which they have rights, to the public, and in all the ways the public might reasonably want to access it. And, of course, in some domains, like radio and public performance, such responsibilities are, in fact, written in the law.
The judge in the Tenenbaum case, Nancy Gertner – who is known to be personally critical of the RIAA’s response to file-sharing – has let it be known she is open to hearing these kinds of arguments. Though many legal experts doubt such arguments would actually enable Tenenbaum to win his case. Not least because the file-sharing Tenenbaum has admitted to took place in 2004, ie after the launch of the iTunes Music Store, the first major effort by the wider record industry (and in particular the major record companies) to make its music available legitimately online.
Therefore the so called fair use argument only applies here if you are willing to say that the alleged duty of copyright owners to provide access to their content “in all the ways the public might reasonably want to access it” means providing it online without digital rights management – ie in the MP3 format. While some might argue that it should, it seems unlikely Gertner’s court would ultimately agree.
