Judge reduces penalties in file-sharing case defended by Nesson

							Professor Charles Nesson LL.B. '63					A Boston University graduate student who is being  represented pro bono by Harvard Law School Professor Charles R. Nesson ’63 in a much-publicized copyright dispute will face a drastically reduced penalty for his illegal file-sharing activity, a federal judge has ruled.

Last July, a jury determined that the student, Joel Tenenbaum, should pay $675,000 to four recording agencies whose songs he had downloaded and distributed online. Last Friday, U.S. District Judge Nancy Gertner overturned the jury award, ruling that he will now have to pay only $67,500. Gertner found the original penalty to be “unconstitutionally excessive” and a violation of Tenenbaum’s right to due process.

“This [original] award is far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement,” Gertner wrote. “In fact, it bears no meaningful relationship to these objectives.”

Gertner framed her 62-page decision as helping draw attention to the fact that the Due Process Clause, which has served to protect large corporations from “grossly excessive punitive awards,” also applies to “ordinary people like Joel Tenenbaum.”

The judge also drew on transcripts of Senate Judiciary Committee meetings, citing senatorial remarks to establish that Congress never meant for the full statutory damages range of the Digital Theft Deterrence Act of 1999 to apply to individual downloaders such as Tenenbaum.

The July jury ruling awarded damages of $22,500 for each of the 30 songs whose copyright Tenenbaum was accused of infringing—well within the statutory range of the 1999 law, which authorizes anywhere from $750 to $150,000 in damages for each willful infraction.

While establishing that the jury’s ruling was far in excess of what was necessary to compensate the record labels for the infringements and to serve as a deterrent, Gertner’s report questioned neither the underpinning of the copyright law nor the illegality of Tenenbaum’s behavior, which she called “hardly exemplary.”

“There is no question that this reduced award is still severe, even harsh,” she wrote. “It not only adequately compensates the plaintiffs for the relatively minor harm that Tenenbaum caused them; it sends a strong message that those who exploit peer-to-peer networks to unlawfully download and distribute copyrighted works run the risk of incurring substantial damages awards.”

In the days since the ruling, Tenenbaum has indicated to the Boston Globe that he will not be able to pay even the reduced penalty, and his defense team—led by Nesson—appears set to continue appealing the original finding and judgment of liability.

Tenenbaum’s brush with the legal system began officially in August of 2007 when several major record labels filed a complaint against him for copyright infringements on their songs. After a year of fighting the case pro se with the limited help of his mother, a family lawyer, Tenenbaum retained Nesson—one of the founders of the University’s Berkman Center for Internet and Society and a noted champion of loosening copyright restrictions—to marshal his defense.

Working pro bono, Nesson has served as lead counsel in Tenenbaum’s defense since then.

The only other recording industry case against an individual file-sharer to go to trial is that of Jammie Thomas-Rassett, a Minnesota woman who so far has seen two federal trials. When the latest resulted in total punitive damages of $1.9 million–$80,000 per song—the judge in the case remitted the award, slashing it by a factor of nearly 40 in a move cited by Gertner in her ruling in the Tenenbaum case.

The RIAA has indicated that it will appeal Gertner’s  decision to reduce the damage award.

– Christian Flow