Derek Bambauer is critical of Judge Nancy Gertner's decision in Sony BMG v Tenenbaum.
Info/Law » Tenenbaum and Statutory Damages
My admiring post on Judge Gertner's decision in Tenenbaum here.
The Electronic Frontier Foundation's Corynne McSherry writes on the Deeplinks blog
But the most interesting aspect of the ruling may be the court's conclusion that Congress never intended copyright's extraordinary statutory damages provisions — which permit an award of up to $150,000 per work if the defendant has willfully infringed — to apply to noncommercial users of peer-to-peer networks, even if they are found liable for willful infringement. After a lengthy review of the legislative history, Judge Gertner found that there was "substantial evidence indicating that Congress did not contemplate that the Copyright Act’s broad statutory damages provision would be applied to college students like Tenenbaum who file-shared without any pecuniary gain."
Full Deeplinks post here
Expect the opposite from Ben Sheffner, who is thinking about it here.
Purchase Copyright Litigation Handbook from West here
Showing posts with label joel tenenbaum. Show all posts
Showing posts with label joel tenenbaum. Show all posts
Sunday, July 11, 2010
Saturday, July 10, 2010
Copyright Law: Boston Judge Holds Jury Award Unconstitutional in Music Dowloading Statutory Damages Case
In Sony BMG Music Entertainment (07cv11446-NG)(D. Mass July 9, 2010), Judge Nancy Gertner has written a 61-page decision that is an intellectual tour-de-force - concluding that a $675,000 statutory damages award against a student named Joel Tenenbaum who illegally downloaded music and then shared the songs on peer-to-peer file sharing services. Judge Gertner's decision is linked below via Scrib'd.
The judge reduced the statutory damages award to $2,250 for each of the thirty infringed works. This was a reduction of 90% from the jury's award of $22,500 per song.
The Tenenbaum case was debated in an IP Colloquium moderated by Prof Doug Lichtman, free CLE and audio here. On this blog I rarely try to handicap the outcome of ongoing copyright cases. All too often the casual observer doesn't have all of the operative facts. But after listening to the excellent debate on the IP Colloquium I disagreed with Doug Lichtman's apparent conclusion that statutory damages clearly wouldn't be held unconstitutional based on Prof. Charlie Nesson's arguments. My post on the Tenenbaum case here.
Both Doug Lichtman and Charlie Nesson, counsel for Tenenbaum hopped on the blog and commented on my post. Check out the debate here. I think that it's the most interesting discussion held on this blog since I started it.
I think that Doug Lichtman ended up being right about the analysis that would be applied to the case, you can see his thinking in his comments to my March 28, 2009 post (I had expressed sympathy for Nesson's arguments that excessive statutory damages were penal in nature).
The RIAA originally wrote a cease and desist letter to Tenenbaum asking for $3500. Tenenbaum mailed them $500. They rejected it. RIAA sued and demanded $12,500. He refused and this litigation ensued.
A key fact that all should know and that escapes many media posts is that the court found that Joel Tenenbaum first lied about his responsibility for file sharing (he tried to blame family members), then he claimed he'd deleted files, which he hadn't. This is a key fact when we look at statutory damages, because wilfullness/innocence is a factor that is taken into account. Courts routinely whack people who lie and who cause property owners to incur hassles and increased damages due to their untruthfulness.
So the basic first lesson to be taken from this and any other case is that if you want to be a martyr for a great cause and to vindicate some great principle through our courts, don't compound any initial error by lying about your actions. Tenenbaum is not a pop hero, he should count his lucky stars and work out a settlement. If Harvard wants another test case, find a fourteen year-old. Tenenbaum should consider quitting school, getting a job and paying off the debt. The Boston Globe interview (video posted below) shows that Tenenbaum shows little inclination to accept any responsibility for his actions, and as attorneys fees mount, his downside keeps getting worse.
Turning to Judge Gartner's decision - it is a landmark work of scholarship in the area of punitive damages and the rules that should apply to copyright. If you care about this area, read it. It also explains the relationship between remittitur and a judge's ability or obligation to address the constitutionality of a statutory damages award. Her decision is groundbreaking, thoughtful, and accords with the thinking of the federal judge in Minnesota who vacated the jury's award in the Jammie Thomas case. My post on that case here.
The case is at a point that the RIAA and Tenenbaum can each claim victory. Charlie Nesson's arguments made during the IP Colloquium were vindicated, although not in the way he envisioned, and he has created law that is sensible, humane and realistic in the field of statutory damages and punitive damages in copyright cases. Doug Lichtman's analytical approach was adopted by the court, although not quite the way he envisioned.
Settle it.
Related post: 2d Cir Rejects "Independent Economic Value" Test.
Boston Judge Holds Music Filesharing Damages Unconstitutional in Tenenbaum Case
Purchase Copyright Litigation Handbook from West here
The judge reduced the statutory damages award to $2,250 for each of the thirty infringed works. This was a reduction of 90% from the jury's award of $22,500 per song.
The Tenenbaum case was debated in an IP Colloquium moderated by Prof Doug Lichtman, free CLE and audio here. On this blog I rarely try to handicap the outcome of ongoing copyright cases. All too often the casual observer doesn't have all of the operative facts. But after listening to the excellent debate on the IP Colloquium I disagreed with Doug Lichtman's apparent conclusion that statutory damages clearly wouldn't be held unconstitutional based on Prof. Charlie Nesson's arguments. My post on the Tenenbaum case here.
Both Doug Lichtman and Charlie Nesson, counsel for Tenenbaum hopped on the blog and commented on my post. Check out the debate here. I think that it's the most interesting discussion held on this blog since I started it.
I think that Doug Lichtman ended up being right about the analysis that would be applied to the case, you can see his thinking in his comments to my March 28, 2009 post (I had expressed sympathy for Nesson's arguments that excessive statutory damages were penal in nature).
The RIAA originally wrote a cease and desist letter to Tenenbaum asking for $3500. Tenenbaum mailed them $500. They rejected it. RIAA sued and demanded $12,500. He refused and this litigation ensued.
A key fact that all should know and that escapes many media posts is that the court found that Joel Tenenbaum first lied about his responsibility for file sharing (he tried to blame family members), then he claimed he'd deleted files, which he hadn't. This is a key fact when we look at statutory damages, because wilfullness/innocence is a factor that is taken into account. Courts routinely whack people who lie and who cause property owners to incur hassles and increased damages due to their untruthfulness.
So the basic first lesson to be taken from this and any other case is that if you want to be a martyr for a great cause and to vindicate some great principle through our courts, don't compound any initial error by lying about your actions. Tenenbaum is not a pop hero, he should count his lucky stars and work out a settlement. If Harvard wants another test case, find a fourteen year-old. Tenenbaum should consider quitting school, getting a job and paying off the debt. The Boston Globe interview (video posted below) shows that Tenenbaum shows little inclination to accept any responsibility for his actions, and as attorneys fees mount, his downside keeps getting worse.
Turning to Judge Gartner's decision - it is a landmark work of scholarship in the area of punitive damages and the rules that should apply to copyright. If you care about this area, read it. It also explains the relationship between remittitur and a judge's ability or obligation to address the constitutionality of a statutory damages award. Her decision is groundbreaking, thoughtful, and accords with the thinking of the federal judge in Minnesota who vacated the jury's award in the Jammie Thomas case. My post on that case here.
The case is at a point that the RIAA and Tenenbaum can each claim victory. Charlie Nesson's arguments made during the IP Colloquium were vindicated, although not in the way he envisioned, and he has created law that is sensible, humane and realistic in the field of statutory damages and punitive damages in copyright cases. Doug Lichtman's analytical approach was adopted by the court, although not quite the way he envisioned.
Settle it.
Related post: 2d Cir Rejects "Independent Economic Value" Test.
Boston Judge Holds Music Filesharing Damages Unconstitutional in Tenenbaum Case
Purchase Copyright Litigation Handbook from West here
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