High Court Declines To Consider Constitutionality Of Damages In File-Sharing Case

WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court on May 21 rejected a petition for certiorari by a Massachusetts man who was found liable for copyright infringement related to his sharing of 30 songs on peer-to-peer (P2P) websites, making no comment on the petitioner's argument that the U.S. Copyright Act was improperly applied to him as a noncommercial infringer, resulting in an excessive damages award (Joel Tenenbaum v. Sony BMG Music Entertainment, et al., No. 11-1019, U.S. Sup.). 

(Orders list. Document #24-120621-001R.) 

Verdict And Damages 

Joel Tenenbaum, a Boston-based college student, was sued in the U.S. District Court for the District of Massachusetts in 2007 by Sony BMG Music Entertainment, Warner Bros. Records Inc., Arista Records LLC and UMG Recordings Inc. for copyright infringement.  The suit was part of the Recording Industry Association of America's (RIAA) campaign against people who download and share music via P2P services.  In July 2009, after Tenenbaum admitted during his trial testimony that he was responsible for downloading and distributing 30 of the record companies' copyrighted sound recordings, Judge Nancy Gertner directed a verdict in the record companies' favor on infringement, leaving only the issues of willfulness and damages for the jury to decide. 

Jurors returned a verdict finding that Tenenbaum's infringement was willful and awarding statutory damages of $22,500 per infringed work, for a total award of $675,000.  In December 2009, Judge Gertner entered judgment on the jury's verdict and enjoined Tenenbaum from further infringing the record companies' copyrights.  Finding that the original damages amount ran counter to the U.S. Constitution's due process protections, the judge granted in part Tenenbaum's motion for a new trial or remittitur, reducing the damages to $2,250 per song, for a total award of $67,500.  The parties cross-appealed separately; the First Circuit U.S. Court of Appeals consolidated the appeals. 

In September 2011, the First Circuit sided with the record labels and the U.S. Department of Justice (DOJ) in vacating the reduced damages amount.  The appeals court affirmed the findings of liability and entry of injunctive relief against Tenenbaum, while rejecting his various challenges to the constitutionality of the Copyright Act.  Contrary to Tenenbaum's arguments, the First Circuit found that the act makes no distinction between "consumer" and "non consumer" infringement of copyrighted works, stating that if Congress had wanted to limit copyright damages awards against "consumer infringers," it easily could have done so.  The appeals court also found that Judge Gertner erred in specifying a damages range to the jury and that she had "prematurely reached a constitutional question of whether the jury's award was excessive so as to violate due process."  Tenenbaum filed a petition of certiorari on Feb. 13.   

Questions Presented

In his petition, Tenenbaum presented questions including whether statutory damages under Section 504(c) of the Copyright Act apply to noncommercial infringers "without requirement of nexus with actual damages," whether Feltner v. Columbia Pictures Television (523 U.S. 340 [1998]) redrafted Section 504(c) to "authorize juries to set statutory damages which Congress had authorized only judges to impose" and whether "the Seventh Amendment require[s] a judge who remits an excessive statutory damage award to offer the plaintiff a new trial as an alternative to accepting the remitted award." 

In their brief in opposition, the record companies presented questions of whether Tenenbaum's infringement is "somehow exempt from the scope of section 504(c)," whether Feltner "actually rendered section 504(c) inoperable, rather than merely requiring the damages question to be directed to the jury, rather than the judge," whether trial courts "may inform juries of the range of damages that section 504(c) authorizes" and whether the new trial option is required in the case of remittitur.   

The DOJ submitted its own opposition brief, presenting questions of the constitutionality of Section 504(c), its applicability to noncommercial infringers, whether the District Court abused its discretion in its jury instructions and whether the First Circuit erred in remanding for remittitur without the option of a new trial.   

Attorneys 

Tenenbaum is represented by Charles R. Nesson of Cambridge, Mass. 

The record companies are represented by Paul D. Clement and Erin E. Murphy of Bancroft in Washington; Jennifer L. Pariser of the RIAA in Washington; Matthew J. Oppenheim of Oppenheim & Zebrak in Potomac, Md.; and Timothy M. Reynolds of Bryan Cave HRO in Boulder, Colo. 

The DOJ is represented by Sri Srinivasan, acting solicitor general, Stuart F. Delery, acting assistant attorney general, and Scott R. McIntosh and Jeffrey Clair of the DOJ in Washington.

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