NEW YORK, Sept 28 (Reuters) - In the age of iTunes and
an-app-for-everything, Joel Tenenbaum's battle with the music
industry over illegal downloading seems as relevant as an
But it turns out the fight could produce something
surprisingly enduring: a change in copyright law.
Back in 2007, Tenenbaum was one of 35,000 individuals sued
by Recording Industry Association of America in a legal assault
meant to discourage music lovers from illegally downloading
songs. While the vast majority of rogue downloaders settled
their cases, only Tenenbaum and one other defendant hung on for
Over the course of the litigation, Tenenbaum's testimony
earned him some notoriety -- he blamed the downloading on
burglars, a foster child and his sisters before finally fessing
up -- but the digital-rights community continued to support his
case. A friend-of-the-court brief supporting Tenenbaum's
constitional arguments was co-authored by members of the
Electronic Frontier Foundation, a lobbying group, as well as
Stanford and Berkeley law school's clinics on technology and
public policy. Harvard law professor Charles Nesson, founder of
the school's Berkman Center for Internet & Society, took
Tenenbaum on as a client and has been representing him pro bono
Now, as Tenenbaum's case enters its next stage, those
advocates see a renewed opportunity to push for an answer on
how copyright laws should be enforced.
"The system is outdated," said Jason Schultz, an assistant
clinical professor of law at Berkeley and the co-director of
the Samuelson Law, Technology & Public Policy Clinic. While
Tenenbaum is an imperfect - and unsympathetic defendant - he is
a vehicle for bringing copyright law up to speed. "It's a real
case and a real guy that's been run up for [real] money," said
Schultz. A court will eventually make a decision on the issue
of appropriate copyright damage, he said. "We're trying to help
them make the right one."
$22,500 PER SONG
The stage was set two weeks ago when the First Circuit
Court of Appeals reinstated a $675,000 judgment against
Tenenbaum, or $22,500 for each of 30 charges of illegal
downloading -- a reversal of a trial judge's decision to knock
the award down to $67,500. The ruling was a blow to Tenenbaum,
who had argued that that the Copyright Act was not meant to be
applied to consumer copying and that the recording industry was
not harmed. He argued that such a large amount for an
individual was unconstitutional and unfair.
"I can't afford the $67,000 it was before. I sure as hell
can't afford the bigger amount," Tenenbaum, who now is studying
physics as a graduate student at Boston University, told
Reuters. He said he will declare bankruptcy if the judgment is
The Copyright Act, last extensively revamped in 1976,
allows plaintiffs to take two approaches to damages. They can
either ask for the quantifiable amount of harm caused or seek
statutory damages. Today, violators can be forced to pay
between $750.00 and $150,000.00 per infringement.
The Recording Industry Association of America and its
record-company members maintain that the current law is fair,
offers jurors flexibility and provides the proper deterrent to
OUT OF SYNC LAW
In the view of digital rights advocates, however, the law
is wildly out of sync with contemporary technology, where
nearly every device allows users to make and upload copies of
In the Tenenbaum case, Schultz and others pushing for
changes to electronic rights, were hoping the First Circuit
would rule on whether or not the $22,500 per violation
statutory damage award was unconstitutional. Courts should
"ensure damages bear a reasonable relationship to actual harm"
and provide guidance on how statutory damages will be imposed
so creators can "adequately navigate the waters of copyright
law," the Electronic Frontier Foundation argued in its
The First Circuit, however, didn't rule on that issue. It
sent the case back down to the trial court, not on the merits
of the due process decision, but because it felt the lower
court jumped the gun on addressing the constitutional question.
The First Circuit did, however, walk through discussion points
of reducing statutory damages versus limiting punitive
GREATER DISCRETION FOR JUDGES?
One potential outcome in the Tenenbaum case is that a court
will decide to rely on the model of punitive-damages style
evaluation, giving judges greater discretion to reduce
statutory damage awards in copyright cases. Unlike a common law
reward reduction, the plaintiff would not have the immediate
right to demand a new trial on damages. That would be a
"significant change in the process," John Chatowski, counsel at
Nixon Peabody who specializes in intellectual property
The issue could also be resolved by the case of the other
remaining individual downloader, Jammie Thomas-Rasset. That
case is pending before the Eighth Circuit. To date, a jury has
twice levied verdicts of over $1 million against Thomas-Rasset;
the judge reduced the damages to $54,000 and the RIAA is
appealing. Like Tenenbaum's case, Thomas-Rasset's case focuses
on the fairness of these types of awards, and could beat
Tenebaum's to a decision.
Tenenbaum's options now are to appeal the First Circuit
panel's decision to full First Circuit, to the Supreme Court,
or to wait and see what happens when the case is sent back to
the lower court. Tenenbaum's lawyer, Charles Nesson declined to
comment for this story.
The appeals case is: Sony BMG Music Entertainment, et al v.
Tenenbaum, U.S. Court of Appeals for the First Circuit, No.
10-1883, 10-1947, 10-2052.
For the plaintiffs/appellants: Paul Clement of Bancroft
For Tenenbaum: Charles Nesson, Harvard Law School & Founder
of the Berkman Center for Internet and Society.
For intervenor United States: Jeffrey Clair.
(Reporting by Erin Geiger Smith)
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