Learning to Play “Hot Potato” with Constitutional Issues: Trial Court Errs in Bypassing Remittitur for Due Process/Excessive Damages Analysis in Copyright/Music Downloading Case

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 Constitutional Question

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.

From these 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 Yield Sign

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;
  • "consumer 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 engaged.

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:

  • whether 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
  • whether 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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