WASHINGTON, D.C. - (Mealey's)
The U.S. Supreme Court today 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.;
See October 2011, Page 6).
(Orders list available. 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 [enhanced version available to lexis.com subscribers]. 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 [enhanced version available to lexis.com subscribers]. 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.
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 ) [enhanced version available to lexis.com subscribers] 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
Tenenbaum is represented by
Charles R. Nesson of Cambridge,
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,
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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