With his “fair use” defense kicked out hours before his trial, a week later a jury decided that Tenenbaum had engaged in “willful infringement” and awarded the RIAA $22,500 for each of the 30 songs listed in the case.

What followed was years of legal wrangling, with a yo-yo’ing of the damages award and a 2011 decision by the First Circuit Court of Appeals that the original decision should stand.

Tenenbaum then tried to take his case to the Supreme Court, arguing the damages awarded against him were unconstitutional. In May last year that request was denied.

Following yet another hearing in this case that refuses to die, the First Circuit Court of Appeals decided yesterday that the penalty handed down in 2009 should indeed stand.

“Joel Tenenbaum illegally downloaded and distributed music for several years. A group of recording companies sued Tenenbaum, and a jury awarded damages of $675,000, representing $22,500 for each of thirty songs whose copyright Tenenbaum violated,” Judge Howard wrote.

“Tenenbaum appeals the award, claiming that it is so large that it violates his constitutional right to due process of law. We hold that the award did not violate Tenenbaum’s right to due process, and we affirm.”

The Court said that Tenenbaum had downloaded and shared copyrighted music without permission from 1999 to at least 2007 knowing it to be illegal, had pressed on regardless, later dening his actions.

“On appeal, Tenenbaum invites us to assume that he is ‘the most heinous of noncommercial copyright infringers.’ We need not go so far as to accept his offer. The evidence of Tenenbaum’s copyright infringement easily justifies the conclusion that his conduct was egregious,” the Court wrote.

“Much of this behavior was exactly what Congress was trying to deter when it amended the Copyright Act. Therefore, we do not hesitate to conclude that an award of $22,500 per song, an amount representing 15% of the maximum award for willful violations and less than the maximum award for non-willful violations, comports with due process.”

Tenenbaum has thus far declined to comment on the decision.

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

The decision comes after the Supreme Court declined to look at the case on Constitutional Grounds earlier this year, and the 1st Circuit Court of Appeal reinstated the original verdict a year ago. In its decision last year, the appeal court said that if a new judge assigned to the case could reduce the award again if it granted the record labels a new trial.

US District Court judge Rya Zobel ruled that the damages were proportionate given his attitude and claims he had infringed “for at least eight years, from 1999 to 2007.” He was also criticized heavily for not admitting straight away.

“In spite of the overwhelming evidence from which the jury could conclude that Tenenbaum’s activities were willful, the award of $22,500 per infringement not only was at the low end of the range – only 15% of the statutory maximum – for willful infringement, but was below the statutory maximum for non-willful infringement. Considering all of the aforementioned evidence, the jury’s damage award was not so excessive as to merit remittitur.”

The constitutional aspect of the appeal – that the damages awarded were excessive – also didn’t stand up to the 80yo Carter-administration-appointee. . Referring to the Theft Deterrence and Copyright Damages Improvement Act of 1999, she notes that these large sums are intended by Congress for this exact reason, and so dismissed that argument too.

“Given the deference afforded Congress’ statutory award determination and the public harms it was designed to address, the particular behavior of plaintiff in this case as explained above, and the fact that the award not only is within the range for wilful infringement but also below the limit for non-willful infringement, the award is neither “wholly disproportioned to the offense” nor “obviously unreasonable.” It does not offend due process.”

There has been no comment from the RIAA, Sony, or the Tenenbaum defense at this time.

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

The Supreme Court has refused to hear his case. While this is not the be-all-and-end-all for the case, it’s another roadblock.

At issue was the matter of excessive damages, specifically the statutory damages that allow for between $750-$150,000 per infringement.

In their brief, Tenenbaum’s lawyer is reported by the Boston Globe as saying “This pernicious interpretation of the Copyright Act transforms every bit of cyberspace into a potentially exploding lawsuit and is sparking the development of a spam-litigation industry”. He is, of course, referring to the many copyright trolls we’ve covered in recent weeks and months.

Regardless, the Supreme Court refused to hear the case, without comment.

Meanwhile the case is not over. The sole issue being referred to the Supreme Court was the constitutionality of the damages, not the merits of the case in any form.

The trial judge had already reduced the damages awarded to $65,000 before having it restored by the 1^st US Circuit Court of Appeals.

Judge Nancy Gertner could still reduce the damages again, but in doing so the RIAA and it’s member studios can ask for a retrial. This has happened twice with Jammie Thomas in a similar case. It’s an option Tenenbaum has expressed support for in the past.

Who knows when this case, which started in 2004, will end, and how much more court time will be taken up .

Meanwhile, the real winners are the lawyers for the RIAA (and to a lesser extend the government), racking up fee’s despite having a poor record of getting any kind of money for artists.

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

As of today, the case is still ongoing.

In 2009, a jury found Tenenbaum guilty of “willful infringement” and awarded damages mounting to $675,000. A year later this amount was reduced by 90% when Judge Nancy Gertner ruled that the penalty was excessive and unconstitutional. In 2011 this decision that was reversed after a new hearing at the Court of Appeals.

In yet another appeal, Tenenbaum’s legal team, headed by Harvard law professor Charles Nesson, is asking the court to reduce the $22,500 fine per song to the minimum statutory damages of $750 per song. This request is made on due process grounds.

As expected, the RIAA doesn’t agree with the request and presented its arguments to the court last Friday. But they were not alone – on the same day the Department of Justice also filed a brief with the court, backing the RIAA’s vision on the case.

In a 26-page filing the Department of Justice makes the argument that previous cases, as cited by Tenenbaum’s legal team, do not apply in this instance. It concludes that the due process grounds are not relevant yet and that the damages therefore shouldn’t be reduced before the case continues.

The due process question should only be answered when the court decides that the jury’s award of $22,500 per song is not excessive, according to the Departement of Justice.

“The only circumstance in which the Court can reach Defendant’s due process challenge at this time is if the Court first determines the jury’s statutory damages award is not excessive under the common law remittitur standard. The United States, therefore, does not believe it is necessary at this juncture to address the merits of Defendant’s constitutional claim,” the DoJ writes.

Although this is not the first time the Justice Department has become involved in an RIAA civil case, it remains unclear why they chose to intervene this time. What we do know is that the authorities are very up-to-date with the legal proceedings, as five former RIAA lawyers are now employed by the Department of Justice.

Whether these connections between the Justice Department and the RIAA have increased the likelihood of the authorities getting involved is hard to say. However, it is clear that Tenenbaum and his legal team are up against some serious resistance, and that the US authorities don’t want the student to get off that easily..

To be continued, indefinitely.

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

In the RIAA’s case against Jamie Thomas, the jury-awarded damages were reduced significantly as the excessive damages were ruled to be unconstitutional. Today, the same thing has happened with the case against Boston University student Joel Tenenbaum.

The ruling issued by District Judge Nancy Gertner states that the constitutional issues are clear, and that attempting to avoid the constitutional challenges (that the damages are excessive in proportion to the crime) by reducing the damages would be the best way to handle these.

The verdict comes as no surprise to many, and may even come as a relief to the RIAA, who have faced some negative publicity over the damages awarded. It’s unclear, though, if this modification will stand, as the RIAA will have to accept it. If they don’t, a retrial will be called.

Judge Gertner finds a retrial likely, stating in the judgment: “The plaintiffs in this case, however, made it abundantly clear that they were, to put it mildly, going for broke. They stated in open court that they likely would not accept a remitted award.”

“The Constitution protects not only criminal defendants from the imposition of ‘cruel and unusual punishments’, but also civil defendants facing arbitrarily high punitive awards,” Gertner added.

The meat of the subject can be found on page 6, though.

I reduce the jury’s award to $2,250 per infringed work, three times the statutory minimum, for a total award of $67,500. Significantly, this amount is more than I might have awarded in my independent judgment. But the task of determining the appropriate damages award in this case fell to the jury, not the Court. I have merely reduced the award to the greatest amount that the Constitution will permit given the facts of this case.

There is no question that this reduced award is still severe, even harsh. 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. Tenenbaum’s behavior, after all, was hardly exemplary. The jury found that he not only violated the law, but did so willfully.

Reducing the jury’s $675,000 award, however, also sends another no less important message: The Due Process Clause does not merely protect large corporations, like BMW and State Farm, from grossly excessive punitive awards. It also protects ordinary people like Joel Tenenbaum

This judgment relieves some of the PR pressure around the RIAA. While they were clearly happy with the height of the damages, hoping it would intimidate filesharers, it also became a rallying cry for others. The reduced damages proposed by Judge Gertner may silence the opposition to some extent, and reduce the impact of campaigns.

Joel Tenenbaum was somewhat relieved upon hearing the verdict. In a telephone interview with the Boston Globe he said: “Obviously, it’s better news than it could have been. But it’s basically equally unpayable to me.”

Even if he could pay it, none of the money – be it $675,000, or $67,500 – would find its way into the pockets of the artists whose songs were involved. The RIAA told TorrentFreak that the damages will be used to fund new anti-piracy campaigns instead.

Whether or not there will be a retrial, the current verdict is a blow to their anti-piracy campaigns, while the Constitutional concern may preclude any further strengthening of copyright laws and punishments in the near future.

Breaking story…

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

Thus far, two US file-sharing cases involving individuals have gone to trial. Both resulted in victory for the recording industry, one of them twice.

In 2007, Jammie Thomas was sentenced to pay damages of $222,000 for 24 counts of infringement ($9,250 per infringement). Later, a retrial was granted, and in June 2009 a jury returned a similar decision, but with increased damages of $1.92 million ($80,000 per infringement).

Meanwhile, in July 2009, Joel Tenenbaum was also found to be willfully infringing, and a jury awarded damages of $675,000 ($22,500 per infringement).

On July 6th 2009, Thomas filed with the court that the damages were constitutionally excessive, and now Tenenbaum has too.

The central point of the case revolves around a US Supreme Court precedent, which is quoted in the filing as “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”

Compensatory refers to an amount to make up for actual losses (the damages suffered) and the punitive damages are designed to act as a deterrent for others and to punish. In this case, states the filing, at best it’s in the low 5-digits (22,500:1), and could easily actually be in the upper-5 digits (65,000:1 or greater).

Other considerations are put forward as well, including that the DRM imposed on music until 2007 (and still imposed on audiobooks) encouraged the use of P2P economically; or that the ‘egregiousness’ of the offense is low in comparison to the penalties – that it’s at most as bad as shoplifting – but the constitutionality of the damages is the main thrust, as it is with the Thomas case.

Time will tell as to how the courts will decide, but it may be that the very success in gaining such large damages awards will lead to a great diluting of the power of statutory damages. Very much a case of winning the battle, but losing the war; not what was expected when the papers were first filed, all those years ago.

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

In addition, the artists are unhappy with the fact that the labels, represented by lobby groups such as the RIAA and IFPI, are pushing for anti-piracy legislation without consulting the artists they claim to represent. Fans are unnecessarily portrayed as criminals according to some.

Now, in the case of Boston University student Joel Tenenbaum versus the RIAA, Radiohead has indicated that they will testify against the RIAA. Tenenbaum’s troubles started in 2003 when he rejected an offer to settle with the RIAA for $500. After a few more settlement attempts and legal quibbles, the case eventually went to court.

In court Joel is assisted by ‘hippy head‘ Professor Charles Nesson, and his law students. TorrentFreak contacted Tenenbaum’s legal team, who confirmed that they indeed spoke to Radiohead. “We met with Radiohead’s manager two weeks ago here at Harvard Law School. Professor Nesson walked away with the impression that their manager agreed to do so,” we were told.

Despite the criticism of Professor Charles Nesson’s work ethics and handling on the case thus far, it would be good to see well respected musicians such as Radiohead testify in favor of an accused file-sharer. Most of the time we don’t hear from the artists directly, only from their representatives, so their views are very welcome.

Recently, the effects of ‘illegal’ file-sharing on music sales were discussed during the Pirate Bay trial. Here, Professor and media researcher Roger Wallis told the court that his research has shown that there is no relationship between the decline of album sales and file-sharing. After his testimony, Wallis’ wife was overwhelmed with flowers as the public warmed to her husband and the opinion he expressed in court.

We can’t rule out the possibility that Radiohead might be after some floral tributes of its own, but even more than that they’d love to put one in the eye of the money obsessed record labels.

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

One of the cases vying to be the first to go all the way for a standing decision, is the case involving Boston University student Joel Tenenbaum. After initially offering to settle for $500, and having it rejected back in 2003, he decided to fight. His case has proved quite a headache for the RIAA by all accounts. Starting with a counterclaim asserting abuse of federal power, and that the damages demanded were unconstitutional, it has eventually gone to court after several settlement attempts. In court Joel is assisted by Professor Charles Nesson, and his law students.

In the Thomas case, the lawyer involved wasn’t particularly enthusiastic nor experienced in this area, and it showed. The same can’t be said of Prof. Nesson, who is a Harvard law professor as well as Founder and Co-Director of the Berkman Center for Internet and Society. In what might be considered a coup, he convinced the judge to allow the trial to be webcast on the Internet. This will allow others to see just how the lawyers act in a case. Yet, in the last few hours, it has been revealed that the RIAA has appealed the motion, clearly upset that it might harm their public image further.

It’s hard to see how it can though, when the RIAA makes statements on the case that do nothing to generate goodwill. RIAA’s Cara Duckworth said in a statement, “While this might be an interesting academic exercise for the professor and his class, there’s been real world consequences for those who create music.” Clearly little things like following the law are second place to their revenue steam, and how DARE the defense bother to fight the case against them. In the meantime, we’re looking forward to the webcast.

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