The original trial occurred in a federal District Court, where he admitted liability on the stand and the jury awarded $675K to the labels. The District Court judge lopped 90% off of that, saying it was because the jury’s award was unconstitutional. This decision was appealed by both Tenenbaum and the labels—Tenenbaum because $67.5K was still unfair for $30-worth of music, and the labels for two main reasons, one being that they feel the original damage amount was proper, and the other being because judges are supposed to resolve cases without broaching constitutional issues. So if any reduction was to occur, it would have to first be done via “remittitur”, where the judge basically just says the award needs to be less, but not for constitutional reasons. With remittitur, the labels can reject the reduced award and opt for a retrial. The retrial would not be to ascertain liability (that’s already decided), but just to get a new jury to award a new damage amount. The 1st Circuit Court of Appeals agreed with the labels, saying the judge made a mistake by not dodging the constitutional issues, so the constitutional reduction was nullified and the case is now back to square two: a new District Court judge (the previous one retired) will have to decide whether to let the $675K award stand or reduce it via remittitur.

The rehearing that Tenenbaum wanted was for the Appeals Court to reconsider their decision that the District Court judge had erred. He doesn’t want the award to be reduced by remittitur, because as we have seen in the Jammie Thomas case, it will prompt a retrial, which he doesn’t want; he wants the unconstitutionality of the award to be addressed. I get the impression the Appeals Court recognizes there are serious constitutional issues at stake, but unsurprisingly, they denied the request for a rehearing, because as a matter of procedure, any aspect of the case which can be resolved without broaching constitutional issues must be. And now the Supreme Court has said that they don’t want to hear any arguments that the Appeals Court was wrong. It was a longshot anyway. So it’s in the District Court’s hands now, and it’s probably going to go just like the Jammie Thomas case, round and round until someone gives up.