Sony v. Tenenbaum Saga: File-Sharing Case Makes Its Way to First Circuit
On Monday, the United States First Circuit Court of Appeals heard oral arguments regarding the Sony BMG Music Entertainment v. Tenenbaum appeal. The case involves a Boston University student who was originally charged with illegally downloading and sharing thirty songs on a peer-to-peer network, resulting in $675,000 in damages. This is the first time an illegal file-sharing case has been heard by a federal Court of Appeals.
A fellow IP Brief blogger covered this case back in July 2010, after a District Court judge handed down a judgment against Defendant Joel Tenenbaum. Judge Nancy Gertner held that the original federal jury’s order of $675,000 in damages was “unconstitutionally excessive” and she decreased the damages by 90 percent. The judge awarded $67,500 in damages to plaintiffs, which included Sony Music and a handful of other recording labels. Judge Gertner noted that the award was still quite severe, however it was appropriate because it will compensate the plaintiffs for the “relatively minor harm” caused by Tenenbaum and it will deter other users that file-share on peer-to-peer networks.
Tenenbaum and his lawyers believed that the decreased award was still too excessive.
Tenenbaum’s team of lawyers, including Harvard law professor Charles Nesson and HLS student Jason Harrow, filed an appeal on December, 27, 2010. The brief contends the damages are still too excessive and that the previous jury instructions were improper. Most interesting, however, is that the brief also challenges the application of 17 U.S.C. § 504(c), which sets out damages for copyright infringement. Tenenbaum’s team believes that the statute does not apply to individual, noncommercial consumers like Tenenbaum. Further, the brief states the $67,500 in damages is still unreasonable and would violate Tenenbaum’s due process, which is supported, in part, by Tenenbaum’s claim that the damages would force him into bankruptcy.
During Monday’s oral arguments in front of the First Circuit, the judges heard from the plaintiffs and defendants, as well as the U.S. Department of Justice, acting in an intervenor capacity, having previously filed a memorandum to defend the constitutionality of 17 U.S.C § 504(c).
Plaintiffs’ lawyer, Paul Clement, argued that if there is one thing that section 504(c) has made clear, it is that willful conduct should be punished. The record labels claimed that Tenenbaum’s acts were willful and they previously presented evidence that he shared thousands of files and continued to illegally download and share music despite warnings from record labels. Further, Clement stated that Congress set the statutory damages so high, between $750 and $30,000 for a non-lawful infringement and up to $150,000 for a willful infringement, because the infringement impact on the value of the copyright is extreme.
Tenenbaum’s lawyers conceded that the statute is not facially unconstitutional, but its application was unconstitutional. The panel of judges pressed the defense to admit that there is no record that Congress wished to exempt individuals from being hit with these statutory damages. However, Tenenbaum’s team rebutted with an interesting argument that judges, not juries, were meant set the damages in these sort of cases. Further, they contended that the statute was drafted to protect copyright holders against commercial users, not individuals. Mr. Nesson, lead counsel for the defendant, compared Tenenbaum’s actions of downloading and sharing to that of a “willful jaywalker.”
The government asked the judges to apply the statute as written and uphold the $67,500 in damages. The government acknowledged that the specific technology that Tenenbaum used to share and download music was not in existence at the time the statute was written. However, the statute does account for emerging technology and if Congress believed that noncommercial users were exempt from statutory damages, it would have been explicit or Congress would have amended the statute as it sees fit. The government continued to make a policy argument that the purpose of the statute is to protect the rights of the copyright holder and therefore it would naturally apply to any person that infringed on the copyright, including noncommercial users.
Some commentators believe that Tenenbaum is facing an uphill battle with his contention that the statute was not meant to apply to individuals, while others have faith that Tenenbaum may have a fighting chance. In any event, the First Circuit will most likely rule on it later this year, setting circuit court precedent for 17 U.S.C. § 504(c) and its application.