Last Friday, the
First Circuit reversed a file-sharing/copyright infringement opinion for reaching
constitutional issues before questions of common law remittitur. The First
Circuit held that in bypassing the remittitur question, the lower court
violated the principle of constitutional avoidance.
Trial Court Predicts the Future before Addressing
In Sony BMG Music Entm't v. Tenenbaum, 721
F. Supp. 2d 85 (D. Mass. 2010) [enhanced version available to lexis.com subscribers], plaintiff recording companies filed a copyright
infringement action against Tenenbaum, accusing him of illegally sharing music
files. Pursuant to 17
U.S.C. § 504(c), the jury awarded plaintiffs
$22,500 for each infringed recording (a total award of $675,000). Tenenbaum
moved for a new trial/remittitur, arguing that the damages were grossly excessive and, thus, violated the Due Process Clause.
The trial court treated
plaintiffs' statements as foreclosing any possibility of accepting remittitur,
regardless of the reduced amount. From this, the trial court reasoned that a
new trial was inevitable and that regardless of the new damages, Tenenbaum would
again raise a Fifth Amendment/constitutional challenge. The trial court stated:
Thus, it appears that I cannot avoid a new trial on
the issue of damages through the remittitur procedure. And at the retrial of
damages, I would be forced to confront the very constitutional question that
the remittitur procedure was intended to avoid. In particular, I would have to
decide whether to limit the range within which the jury could award damages in
order to ensure that the jury's award was not constitutionally out-of-bounds. I
would also have to consider Tenenbaum's objections to the constitutionality of
any award that the new jury returned.
Since Tenenbaum's constitutional challenge appears
unavoidable in light of the plaintiffs' stated reluctance to accept a reduced
damages award, I will not enter an order of remittitur.
assumptions, the trial court bypassed remittitur and, instead, addressed the due
process issues, ruling the award unconstitutionally excessive under BMW of N. Am. v. Gore, 517 U.S. 559
(U.S. 1996) [enhanced version / unenhanced version available from lexisONE Free Case Law].
Judges Must Heed the Constitution's Bright Yellow
On appeal, the First
Circuit in Sony BMG Music Entm't v.
Tenenbaum, 2011 U.S. App. LEXIS 19086 (1st Cir. Mass. Sept. 16, 2011) [enhanced version / unenhanced version] initially rejected Tenenbaum's claims that:
Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998) [enhanced version / unenhanced version] rendered § 504(c) unconstitutional;
copying" did not invoke liability under the Copyright Act; and
504(c)'s statutory damages were not allowable absent actual harm.
However, the court found
error in the trial court's reluctance to follow the principle of constitutional
avoidance. In reversing, the court stated:
A decision on a constitutional due process question
was not necessary, was not inevitable, had considerable impermissible
consequences, and contravened the rule of constitutional avoidance. That rule
had more than its usual import in this case because there were a number of
difficult constitutional issues which should have been avoided but were
Facing the constitutional question of whether the
award violated due process was not inevitable. The district court should first
have considered the non-constitutional issue of remittitur, which may have
obviated any constitutional due process issue and attendant issues. Had the
court ordered remittitur of a particular amount, Sony would have then had a
choice. It could have accepted the reduced award. Or, it could have rejected
the remittitur, in which case a new trial would have ensued.
Had the trial court ordered
a remittitur, there would have been a number of possible outcomes that would
have eliminated the constitutional due process issue altogether. Conversely,
the trial court's failure to remit unnecessarily embroiled it in several issues
of a constitutional dimension, including:
the statutory damages due process standard articulated in St. Louis, I. M. & S. R. Co. v. Williams, 251 U.S. 63 (U.S. 1919) [enhanced version / unenhanced version] was applicable, as opposed to Gore's punitive damages due process standard; and
a statutory damages award under the Copyright Act could be reduced without offering
the plaintiffs a new trial pursuant to the Seventh Amendment.
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