Boston student Joel Tenenbaum is the poster child of an entire generation of downloaders, and one of the few people to stand up against the RIAA instead of signing off on a settlement.
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.