File-Sharing Penalties May Be Scrutinized on Constitutional Grounds

The numbers in two recent copyright infringement lawsuits involving downloaded music are enough to get tongues wagging. Is a song really worth US$22,500? Or even $80,000?

Juries in Massachusetts and Minnesota, respectively, ordered those awards to the recording industry this year in cases involving defendants alleged to have illegally downloaded music from the Internet. The $22,500 figure comes from the most recent case, involving Boston University grad student Joel Tenenbaum, accused of downloading 30 songs and sharing them via peer-to-peer services.

However, deciding whether the songs are worth the damages awarded isn’t really the point, argues copyright attorney Ben Sheffner. It’s a decision on whether those damages violate the U.S. Constitution that’s likely to help define one of the most vexing legal issues of the digital age.

Details of the Case

In the most recent case, Sony, Warner Brothers and other leading record labels organized under the banner of the Recording Industry Association of America accused Tenenbaum of illegally downloading and distributing 30 songs. That point wasn’t really an issue — Tenenbaum admitted as much in court, and the trial judge shifted the proceedings to an examination of exactly how much Tenenbaum would have to pay in damages.

He could have been ordered to pay as much as $4.5 million in damages under the Digital Theft Deterrence Act, which sets damages of $750 to $30,000 for each copyright infringement, extending the possible award to $150,000 for each case of willful infringement.

The jury opted for a figure in the lower range of the willful scale, $675,000.

Appeal Likely

Tenenbaum’s attorney, Harvard University law professor Charles Nesson, expects to appeal, according to press reports and comments posted to Tenenbaum’s Web site,Joel Fights Back.

The first step will be proceedings before the judge seeking to reduce the award. A similar effort is under way in Minnesota in the case involving Jammie Thomas-Rasset. In June, a jury there awarded record companies $1.92 million after finding Thomas-Rasset had willfully ignored copyright laws in downloading 24 songs. The verdict works out to $80,000 a song.

In Tenenbaum’s case, Nesson may try to argue that U.S. District Court Judge Nancy Gertner erred in refusing to allow consideration of his argument that the fair use exception to copyright protection provided protection to his client.

“I think the plan is to appeal to Judge Gertner to adjust the damages,” Tenenbaum said in a posting to a Facebook page dedicated to the legal effort. “After that we can appeal on the basis that our Fair Use argument was wrongfully dismissed by the court.”

The more likely argument — both in expected proceedings before Gertner seeking to reduce the fine and in an expected appeal — is that the statutory damages awarded in the case are unconstitutional, copyright attorney Sheffner told the E-Commerce Times.

Constitutional Argument

The argument stems from the same line of legal reasoning that led the U.S. Supreme Court to limit punitive damage awards in the last few decades, arguing that juries had no limits or guidance on what they could award.

In the case of statutory damages, which include ranges of awards written into the law, such guidance exists. But an argument could be made that a range of anything from $750 to $150,000 is still impossibly broad, said Sheffner, a former television studio attorney who attended the Tenenbaum trial, blogged about it, and generally supports the jury’s decision and efforts to stamp out illegal file-sharing.

“Now, no court has accepted this argument,” he said. “No court has ever thrown out an award of copyright statutory damages as unconstitutionally excessive. But it’s a serious and plausible argument and probably their best shot on appeal.”

Neither Nesson nor officials with the RIAA returned messages seeking comment on the decision.

On its Web site, the RIAA said, “We appreciate that Mr. Tenenbaum finally acknowledged that artists and music companies deserve to be paid for their work. From the beginning, that’s what this case has been about.”

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