His case has been dragging on for half a decade already. In 2009, a jury found Tenenbaum guilty of “willful infringement” and awarded damages mounting to $675,000.

July last year judge Nancy Gertner ruled that the penalty was excessive and unconstitutional and the jury-awarded damages were subsequently reduced by 90%, a decision that was reversed two months ago after a new hearing at the Court of Appeals. And this week the case moved forward again.

“The defendant seeks an en banc hearing on one ground: that it is unconstitutional to instruct a jury that it can return an unconstitutionally excessive award,” Harvard law professor Charles Nesson now writes to the court.

Nesson, who along with a group of students defends Tenenbaum, claims that it was unconstitutional for the judge to allow the jury to award damages that she later found to be unconstitutionally high.

“To instruct the jury that it may ascribe an award in a range of up to $4,500,000 against a noncommercial copyright infringer is punitive, excessive, not authorized by statute, and a denial of due process. Indeed, it is difficult to find the right word,” the petition reads.

“The trial judge misinstructed the jury that it could legally ascribe an award 67 times what she herself later found to be the legally permissible constitutional maximum. For each of thirty separately listed songs, the verdict form directed the jury to fill in a blank answering the question, ‘[W]hat damages do you award the Plaintiff for this copyrighted work, from $750 to $150,000?’: This was error, plain and simple.”

Tenenbaum’s legal team is asking for a rehearing before the full court in the hope of getting the fine reduced or thrown out altogether, as they argue that the RIAA’s campaign was not warranted in the first place.

“The defendant has challenged as unconstitutional the use of federal law and process to threaten catastrophic fines against the generation of kids who were downloading and sharing music peer-to-peer. The massive campaign of lawsuits initiated by the recording industry against people who copied music for personal use and never sold or considered selling it in any commercial way was entirely unprecedented,” the petition reads.

In an interview last year Tenenbaum described himself as someone with a passion for music, who paid for music, perhaps even more than the average consumer. For him, file-sharing was a means to discover new bands at a time where there were few legal alternatives online.

“I often have bought music as a result of the free exploration I’ve done. In that respect, I’m much like the average downloader, who actually spends more money on music than people who don’t download at all,” he said.

Although the RIAA stopped pursuing casual file-sharers years ago, for the music industry group this case is now a matter of principle. They are paying much more in lawyer fees than they will ever be able to get back from Tenenbaum, but they feel an example must be set.

To be continued, indefinitely.

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But in July 2010, the severe punishment handed out to the Boston student was in the spotlight.

Judge Nancy Gertner ruled in Sony BMG Music Entertainment v. Tenenbaum that the awarded damages were both excessive and unconstitutional. She slashed the jury-awarded damages by 90% to $67,500 – $2,250 for each of 30 infringed works.

Unhappy, Tenenbaum lodged an appeal, as did the RIAA, and in April this year both parties were back in court before Chief Judge Sandra L. Lynch, Judge Juan R. Torruella, and Judge O. Rogeriee Thompson at the 1st Circuit Court of Appeal in Boston.

In its decision released yesterday, the 1st Circuit Court of Appeals reversed U.S. District Court Judge Nancy Gertner’s decision. Although the appeal court did not necessarily disagree with the response to the constitutional question, it found that Judge Nancy Gertner should not have considered it.

“Citing the doctrine of ‘constitutional avoidance,’ which dictates that courts should avoid tackling constitutional issues unnecessarily, the court found that Judge Gertner should first have considered using a procedure called ‘remittitur‘,” explains EFF Intellectual Property Director Corynne McSherry.

“Under this procedure, she could have lowered the damages amount, but, if the record companies chose not to accept the new amount, they could have asked for a new trial.”

“A decision on a constitutional due process question was not necessary, was not inevitable, had considerable impermissible consequences, and contravened the rule of constitutional avoidance,” wrote Chief Judge Sandra L. Lynch in her decision.

“That rule had more than its usual import in this case because there were a number of difficult constitutional issues which should have been avoided but were engaged.”

Noting that this has been a difficult case, the Court found against Tenenbaum and in favor of the plaintiffs, Sony BMG.

“We have, inter alia, rejected Tenenbaum’s arguments that the Copyright Act is unconstitutional under Feltner, 523 U.S. 340, that the Act exempts so-called ‘consumer copying’ infringement from liability and damages, that statutory damages under the Act are unavailable without a showing of actual harm, that the jury’s instructions were in error, and his various trial error claims,” wrote Judge Lynch.

“We vacate the district court’s due process damages ruling and reverse the reduction of the jury’s statutory damages award. We reinstate the jury’s award of damages and remand for consideration of plaintiff’s motion for common law remittitur based on excessiveness.”

So yet again, in common with the case against Jamie Thomas, Joel Tenenbaum’s case grinds on while serving no obvious purpose.

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By July 2010, a very different picture began to emerge on the scale of the punishments against the Boston student. Judge Nancy Gertner ruled in Sony BMG Music Entertainment v. Tenenbaum that the awarded damages were excessive and unconstitutional. She promptly reduced the jury-awarded damages by 90%.

Although the court had reduced the jury’s award from the original $675,000 ($22,500 per infringed work) to $67,500 ($2,250 per infringed work) for the unlawful sharing of 30 songs, the case was far from over. Tenenbaum slammed the new reduced amount branding it “equally as insane” as the previous year’s $675,000 decision. He went on to lodge an appeal and the RIAA, who were equally unhappy with the decision, followed suit.

Yesterday both parties were back in court, this time in Boston before the First Circuit Court of Appeal. The issue at hand is the exact amount Tenenbaum will be expected to pay for his previously admitted illicit file-sharing.

The hearing took place before a three-judge panel consisting of Chief Judge Sandra L. Lynch, Judge Juan R. Torruella, and Judge O. Rogeriee Thompson.

Tenenbaum’s lawyers argued for lower damages (they’re aiming for around $30, $1 per track) on several points, including that the laws applied to the Tenenbaum case were never intended to target non-commercial entities and even if they were, the damages in the case are “unconstitutionally excessive”.

Lawyers for the RIAA argued that damages awards of this scale are there for their deterrent effect and that they were intended all along for infringers such as Tenenbaum.

Massachusetts attorney Joel Sage, who was at the hearing yesterday, reports that although there were some positive signs, in his opinion Tenenbaum faces an uphill battle.

“Chief Judge Lynch clearly had no tolerance for the defense’s contention that ‘no one thought’ the statutory penalties for copyright infringement would ever apply to ‘consumers’,” he wrote.

“She pointed out that the statute appeared to apply to consumers, eliciting a concession from Tenenbaum’s counsel that statutory copyright penalties were not facial unconstitutional,” he continued. “This left the defense with little more than a half-hearted argument that the jury verdict was improper here because the copyright statute originally contemplated damage calculations by judges.”

On the other hand, judges Torruella and Thompson were reportedly “more suspicious” of the record labels’ arguments.

“Judge Torruella asked the labels’ lawyer whether ‘lost sales’ would provide a useful measure of damages, to which he replied that damages should be commensurate with the ‘lost of value of the copyright’. He argued that file-sharing in the aggregate caused enormous economic losses to the labels because it essentially put the music ‘in the public domain’.”

Sage reasonably questions why Tenenbaum should be then held responsible for the onward actions of file-sharers, a question that was never posed to the RIAA lawyer in court.

As reported by Boston.com, after yesterday’s hearing Tenenbaum was pleased at the support he’d received from people of his generation who share his passion for the legal issues at stake in this case.

Noting that one of the circuit judges actually had to ask how file-sharing programs work, Tenenbaum said: “That’s really the crux of the issue here. That was the center of the whole argument: Was Congress even aware of file sharing’ when it passed the deterrence act?”

A decision in the case is not expected for several months.

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In July this year judge Nancy Gertner ruled that the penalty was excessive and unconstitutional and the jury-awarded damages were subsequently reduced by 90%.

Soon after this judgment both the RIAA and Tenenbaum appealed once again, and the case continues. Although many scholars, journalists and commenters have discussed this high profile case in detail over the years, Joel himself hasn’t shared his thoughts that often.

But, for an introductory course on the production of digital media, Joel is opening up. Brett Caraway, a lecturer in the Department of Radio-Television-Film at the University of Texas informed TorrentFreak about the newly launched discussion platform on copyright issues. One of the first of many high profile individuals involved in recent P2P litigation that is featured on the site is Joel Tenenbaum.

“The intention of the site is to bring together interested parties with various perspectives and have them interact with students and each other. It is my hope that my students and the public can find something of value in these discussions which will help them make up their own minds,” Caraway told TorrentFreak.

With permission we’re posting the interview with Joel Tenenbaum here. Those interested in discussions around copyright issues should keep a close eye on the Copy Grounds website. Coming up are guest posts from MPAA’s Fritz Attaway, former porn star Jennifer Ketcham and many others.

Joel Tenenbaum Interview

1. I download hundreds of songs every month from artists very few people know about that have a lot more to lose than the popular ones you downloaded from and I’m not going to get in trouble. Does that seem fair to you?

Joel: Well, no. It’s not fair. Then again, it’s not fair that out of 40,000 people who have been sued for file-sharing, I was the one who was was lucky enough to have my parents behind me, Professor Charles Nesson and his colleagues, and dedicated passionate students working for free to help me out. I might be unlucky, but I’m also damn lucky for what I’ve been given and for who I have standing with me.

2. Did you plan to fight against the RIAA to this extent, or did it just slowly escalate into what it is today?

Joel: I didn’t plan to fight at all. I wasn’t looking to become the “poster child” for all file-sharers. I tried to settle — multiple times. I offered $500 from the outset and $5250 in court, but by then, this offer was apparently not enough for the music labels. And besides, the idea that someone could just call you up and ask you for thousands of dollars, showing no hard evidence, without your getting a fair day’s representation in court seemed absurd.

3. What are you hoping to change by “fighting back” against the RIAA? Of course you understand that peer to peer file sharing has to be controlled in some way, so if it were up to you, how would the problem of file sharing be handled?

Joel: I’m not “hoping to change” anything. The RIAA sued me. I just want to have a fair day in court for the allegations against me. I’m not the one who can dismiss the lawsuit. Maybe the better question is: What are they hoping to change?

4. Has this ordeal changed the way people treat you?

Joel: Every time I appear in the Metro (the free Boston paper) all my friends and my graduate advisor get a kick out of it. Most people that recognize me are generally appreciative and tell me to stick with it. Thankfully, no one seems to be as hostile in person to me as I’ve seen on the internet.

5. Joel, I am curious as to whether your focus with your case is to argue simply that peer to peer file sharing is completely fair, or if you’re arguing that the way the RIAA is approaching these cases is unjust? One of the questions I have for Joel Tenenbaum is, “What do you feel your punishment should be for illegally downloading music and sharing files, do you believe you should face consequences at all?”

Joel: I’m not saying that file-sharing is right. I’m not saying that it’s wrong either. What I’m saying is that file-sharing is. What I’m fighting in court is that $675,000 — and even $67,500 — for 30 songs is unjust. Turns out that you can NOT use a civil law suit to “deter” other individuals: it’s an abuse of court. And so, “making an example” out of me to scare others is more than just unfair. I wouldn’t be averse to some sort of penalty in line with 99 cents per song or somewhere remotely in that neighborhood if the RIAA can actually show harm, which they haven’t.

6. If you somehow knew that this much of a fuss would be caused for downloading 7 songs, would you still do this to prove this point?

Joel: Complicated question, and a tempting one, I know. Charlie Kaufman writes, “There are a million little strings attached to every choice you make.” I’m grateful for how things have gone. Had this not happened, I wouldn’t have had the experiences I’ve had and met all the amazing people that I’ve met. But again, I’m not doing this to prove a point. I didn’t start the lawsuit. They’re the ones with a point to prove.

7. In your opinion, should lawsuits such as these even exist? In other words, do you even recognize what you did as wrong, or do you think that the RIAA is stepping outside of its bounds to prosecute?

Joel: I believe that the RIAA has the right to pursue what they believe they are entitled to under the law of the land just as I have the right to speak out against them and defend myself. That’s the way our court system works. But the way the “scales of justice” are weighed down on their side; in a way, they get to buy more “justice” by having the deep pockets necessary to pay dozens of lawyers to fabricate an interpretation out of a statute we believe wasn’t intended. They use raw power to silence anyone who dares say otherwise… that’s an abuse of taxpayer money, resources, and one of the most respected justice systems in the world.

8. By and large, have netizens had a positive outlook on the case, or a negative one?

Joel: You can get a decent sense of the proportions just looking at the comments on our blog, youtube videos, or the comments of the articles themselves. They seem to come out 5:1 in favor of us. I did a radio show and people called in: same comments, same ratio. The archetypes are:

9. Why do you feel you have the right to these files? Do you not think you should support the artists that you think are good? Also, do you simply amass files that you rarely listen to, or do you get rid of what you don’t like/want/need?

Joel: I like music. I like to listen to it. I listen to it the way everyone around me listens to it. I’m not pioneering a new distribution system that makes sure everyone can get music for free. I’m just jumping in the pool with everyone else. I also believe and have always believed that artists I derive enjoyment from deserve to be paid for their work. There’s this image of me as the “FREE MUSIC” guy who refuses to pay on principle that’s just flat-out untrue. I often have bought music as a result of the free exploration I’ve done. In that respect, I’m much like the average downloader, who actually spends more money on music than people who don’t download at all.

10. How does Joel envision the future of the music industry?

Joel: I hope it will be a vibrant place, full of sharing, creativity, and the ability for artists to connect straight to their fans without legal intervention. Other than that, I’ll have to rely on the visionary expertise of John Perry Barlow, lyricist for the Grateful Dead, who’s been around a lot longer than me, and has the benefit of greater perspective I don’t. Barlow wrote:

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

“The Constitution protects not only criminal defendants from the imposition of ‘cruel and unusual punishments’,” wrote District Judge Nancy Gertner in her ruling, “but also civil defendants facing arbitrarily high punitive awards.”

Just as Thomas’s penalties were slashed on appeal, last month the same held true for Tenenbaum. The court reduced the jury’s award from the original $675,000 ($22,500 per infringed work) to $67,500 ($2,250 per infringed work). Tenenbaum had shared 30 songs.

While Tenenbaum expressed relief at the reduced amount, he said that he still had no resources to meet the costs and all the signs pointed to an appeal from his legal team.

Yesterday Tenenbaum slammed the new reduced amount of $67,500 claiming it is “equally as insane” as the previous year’s $675,000 damages award.

“Sixty-seven-and-half thousand dollars only sounds reasonable because it was so much before,” said the 26 year-old, while noting that even the smaller amount would result in his bankruptcy.

According to the Boston Globe, Tenenbaum’s lawyer professor Charles Nesson, has filed a one-page notice saying he will appeal with the US Court of Appeals for the First Circuit. He says he intends to challenge several rulings made by District Judge Nancy Gertner, notably her decision which stopped jurors hear that Tenenbaum had offered to settle out of court in 2005.

But of course, the knife cuts both ways and Tenenbaum isn’t the only one who intends to appeal – so does the RIAA. Referring to the decision to reduce the damages by 90%, yesterday an RIAA spokeswoman said that the labels “had no choice but to appeal the erroneous and unprecedented decision’’.

While the notices of appeal were filed last month, the actual appeals will be filed in the coming months, but no matter what happens, no artists will receive any of the money. Earlier the RIAA told TorrentFreak that any damages paid will be used to fund new anti-piracy campaigns instead.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

From the start it was clear that the only thing that the jury had to decide on would be the the size of the fine. The fair use defense was thrown out a few hours before the trial started, which shut down the only escape route left.

Tenenbaum’s defense team, headed by Harvard Professor Charles Nesson and his law students, were left powerless. “Undoubtedly, we were a creative and nontraditional legal team. But going into trial, we were stripped of all our attempts to mitigate Joel’s liability, so today’s outcome has been in the cards all week,” student Debbie Rosenbaum wrote.

This is the second win in little over a month for the RIAA. In June, Jammie Thomas-Rasset lost her retrial against the RIAA and was ordered to pay $1.92 million for the 24 songs she shared via Kazaa.

RIAA spokesman Jonathan Lamy told TorrentFreak that the ‘damages’ will not go to any of the artists, but to more anti-piracy campaigns. “Any funds recouped are re-invested into our ongoing education and anti-piracy programs,” he said.

In total, the RIAA has spent over a million dollars on this case alone, to set an example to the millions of people who share files every day. Time will tell whether or not the verdict will have any impact at all, aside from ruining a student’s life and alienating a few million music fans.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.