Out of more than 30,000 cases filed against downloaders by the record companies only two end-user download cases have gone to trial and judgment: the Tenenbaum case in Boston, and the case against Jammie Thomas-Rassett in Minnesota.

In the second case, the jury awarded the copyright owners $2 million for downloading (and allegedly distributing) 24 songs.  The federal judge to whom the case is assigned has now lowered that amount to $2,250 per song (the legal term of the judge’s action is “remittitur”).

Some quotes from the Thomas-Rassett January 22, 2010 decision:

After long and careful deliberation, the Court . . . remits the damages award to $2,250 per song – three times the statutory minimum. The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music. . . . although Plaintiffs were not required to prove their actual damages, statutory damages must still bear some relation to actual damages.

. . .  This reduced award is significant and harsh. It is a higher
award than the Court might have chosen to impose in its sole discretion, but the decision was not entrusted to this Court.

. . . Thomas‐Rasset argues that the ratio of the statutory damages award to actual damages in this case, when measured in songs, is 1:62,015. She bases this calculations on a cost of $1.29 per song online.

. . .  Thomas‐Rasset asserts that, at most, she was a single mother who merely downloaded and shared music when she had already lawfully bought CDs of much of that music and had no commercial motive to infringe.

. . .  The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music.

. . .  The Court will not substitute its judgment for the judgment of the jury. Rather, it will remit the award to the maximum amount sustainable by the record, so that the statutory damages award is no longer shocking or monstrous.

It will be interesting to see if this decision has any impact on Judge Nancy Gertner, the federal judge assigned to the Tenenbaum case in Boston.  In that case, the jury awarded $22,500 for each work infringed, and a motion for remittitur is pending.

Here is a link to the full opinion in Thomas-Rasset:

Thomas-Rasset Remittatur Order

Update: Link to First Circuit’s Decision Rejecting Constitutional Grounds for Reducing Statutory Damages, issued September 16, 2011.

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Final judgment in Sony v. Tenenbaum entered by Judge Nancy Gertner today.  The 30 day appeal clock starts to run.  Should be interesting to see what the First Circuit does with this one, although I suspect that the betting is heavy in favor of quick affirmance.

A few choice quotes from Judge Gertner’s opinion, which is provided in full below on scribd.com.

“the Court, deeply concerned by the rash of file-sharing lawsuits, the imbalance of resources between the parties, and the upheaval of norms of behavior brought on by the Internet, did everything in its power to permit Tenebaum to make his best case for fair use.…The Court did what it could to focus the issue, notwithstanding what can only be described as a truly chaotic defense.”

…

Tenenbaum “tailor[ed] his fair use defense to suggest a modest exception to copyright protections,” he “mounted a broadside attack that would excuse all file sharing for private enjoyment. It is a version of fair use so broad that it would swallow the copyright protections that Congress created, defying both statute and precedent.”

…

“As this Court has previously noted, it is very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written. It urges – no implores – Congress to amend the statute to reflect the realities of file sharing. There is something wrong with a law that routinely threatens teenagers and students with astronomical penalties for an activity whose implications they may not have fully understood. The injury to the copyright holder may be real, and even substantial, but, under the statute, the record companies do not even have to prove actual damage. “Repeatedly, as new developments have occurred in this country, it has been Congress that has fashioned the new rules that new technology made necessary.”  … It is a responsibility that Congress should not take lightly in the face of this litigation and the thousands of suits like it.”

The full opinion, below.

Tenenbaum Final Judgment

And Judge Gertner’s opinion rejecting Joel Tenenbaum’s fair use defense:

Sony v. Tenenbaum Fair Use Decision

The First Circuit’s decision upholding the RIAA’s challenge to Judge Gertner’s decision to permit webcasting of a motion hearing in the RIAA v. Tenenbaum case was issued on April 16, 2009, very shortly after oral argument.

The First Circuit, interpreting a D. Mass. Local Rule, held that U.S. District Judge Nancy Gertner’s interpretation of the local rule concerning photographing recording and broadcasting of courtroom proceedings was “palpably incorrect”.

This result is quite disappointing for many people who had hoped that the First Circuit would hold that Massachusetts District Court Judges have have the discretion to webcast court proceedings in their courtrooms, and that this would be a first step toward allowing the public to view federal district court civil proceedings. The decision will, many hope, lead to a change in the pre-Internet Age Rule that was found to prohibit the webcast.

has filed a most unusual “expert witness report” in the Tenenbaum case.  This will surely raise some novel admissibility issues under Daubert/FRE 702 standards.  And that, constant readers, is the understatement of the day.  More surprises to come from the Nesson/HLS defense team, I have no doubt.

As everyone in the copyright law community knows by now, Harvard Law School Professor Charles Nesson, and a team of HLS students, are defending Joel Tenenbaum in an RIAA action. Nesson’s primary argument is that the copyright statute’s statutory (aka punitive) damages of as much as $150,000 per infringement is unconstitutional, least as applied to Tenenbaum who downloaded seven songs for personal use, not profit. Over $1 million in damages ($150,000 x 7) seems a bit much for such a violation, and Nesson argues that punitive damages of this magnitiude are unconstitutional.

Nesson is courteously interviewed by Professor Doug Lichtman on the Intellectual Property Colloquium podcast here.

Apart from the legal issue raised by Professor Nesson, this case has a great deal of humor in it, not the least of which is that Nesson and company are defending Joel Tenenbaum.  This is kind of like picking on a little kid on the playground, who then shows up with The Hulk, who just happens to be his big brother and refuses to go away until he’s fought the bully to the death. Oh, and Nesson’s team is “immortal” for all practical purposes – I suspect there’s nothing that Nesson would like more than to take the constitutional challenge to the Court of Appeals and then the Supreme Court.  I doubt that the RIAA ever expected this, but they can’t exactly back down at this point. I hope to write about this case it in more detail in a future post, and highlight some of the bizarre turns the case has taken with Nesson guiding Tenenbaum’s defense.

A great blog that is following this case in more detail than I could ever have thought possible is Ben Sheffner’s Copyrights and Campaigns.

The Boston Globe reports that U.S. District Judge Nancy Gertner has stayed last week’s decision allowing a motion hearng in the Tenenbaum music downloading case to be “narrowcast” on the Internet, pending an appeal to the First Circuit by the RIAA.  Apparently, the RIAA feels strongly enough about this issue to ask for immediate appellate review, and Judge Gertner agreed to keep cameras out of court, at least for the moment.

My take? Cameras in the courtroom should be within the discretion of the judge, who exercises control over that courtroom, and the First Circuit should deny the RIAA’s appeal.  The more that the public sees what goes on in our federal courts, the better for our judicial system.

Some interesting goings on on the copyright front in D. Mass. are worth a brief mention.

First, U.S. District Court Judge Nancy Gertner has ruled that proceedings in the RIAA’s case against Joel Tenenbaum, alleging illegal downloading, may be “webcast” by the Berkman Center. Whether the actual trial will be webcast is undecided as yet, but upcoming in-court motions will be. The audio-visual will be streamed live by the Berkman Center at no charge to viewers. Tune in on January 22nd to see the circus.  [Update: the First Circuit held that the trial could not be webcast].

I find the following quote from the decision to be quite humorous:

In many ways, this case is about the so-called Internet Generation — the generation that has grown up with computer technology in general, and the Internet in particular, as commonplace. It is reportedly a generation that does not read newspapers or watch the evening news, but gets its information largely, if not almost exclusively, over the Internet. . . Consistent with the nature of these file-sharing cases, and the identity of so many of the Defendants, this case is one that has already garnered substantial attention on the Internet.

While the Plaintiffs object to the narrowcasting of this proceeding, . . . their objections are curious. At previous hearings and status conferences, the Plaintiffs have represented that they initiated these lawsuits not because they believe they will identify every person illegally downloading copyrighted material. Rather, they believe that the lawsuits will deter the Defendants and the wider public from engaging in illegal file-sharing activities. Their strategy effectively relies on the publicity resulting from this litigation.

• Judge Gertner’s Decision in Tenenbaum, Allowing Cameras in Courtroom During Trial

Meanwhile, in the Gatehouse Media copyright case against the New York Times, Gatehouse has filed an unopposed motion, asking Judge Young to rule on whether the court has jurisdiction before the copyright registrations for the material in dispute have been issued by the Copyright Office. This is a frequent controversy, and one of interest to copyright lawyers representing plaintiffs whose unregistered works are the subject of infringement – may they proceed with suit, and perhaps a preliminary injunction, or are they bound to wait for the registrations to issue? Apparently, this issue was of enough concern to Gatehouse Media that it filed this brief, collecting and arguing the legal precedents on this issue.

• Gatehouse Motion for Ruling on Jurisdiction