A copyright ruling no one can like

For once, the RIAA and the people they're taking to court agree on something: that a judge's decision in the closely watched Tenenbaum lawsuit only muddies the legal waters of file sharing.

Greg Sandoval Former Staff writer
Greg Sandoval covers media and digital entertainment for CNET News. Based in New York, Sandoval is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at @sandoCNET.
Greg Sandoval
4 min read

Legal experts sympathetic to copyright owners as well as those known for supporting technology companies are criticizing a federal judge's decision to lower a jury award in a high-profile lawsuit about file sharing.

Joel Tenenbaum during an interview last year with CNN after a jury ordered him to pay $675,000. CNN

A year ago, a jury found college student Joel Tenenbaum liable for willful copyright infringement for sharing 30 songs, and later set a damages award of $675,000. On Friday, U.S. District Judge Nancy Gertner dramatically reduced the award to $67,500.

Gertner wrote in her decision that the original amount was too high and "unconstitutional." With regard to statutory damages in a copyright case, her decision is believed by some legal experts to be unprecedented. Not only are copyright owners attacking Gertner's reasoning, but so are some well-known lawyers from the pro-technology side.

Eric Goldman, a law professor at Santa Clara University who is often critical of entertainment companies in copyright litigation, predicted much of Gertner's ruling is vulnerable to appeal, which the RIAA will likely do, a high placed music industry source told CNET on Tuesday.

"This ruling is critically important," Goldman wrote on his blog on Monday. "It has the potential to [affect statutory damages for every copyright case that involves them]." Goldman said that despite feeling sympathy with the judge's aversion to the size of the award, brought on by what he called a "bad brew of an aggressive copyright lobby and pliable politicians," her arguments "did not completely convince me."

I don't think she should have altered it. I don't mean to say that I'm entirely comfortable with the amount as a matter of policy...but her decision seriously undermines the authority of Congress to set the range of statutory damages."
--Ben Sheffner, copyright expert

Statutory damages are a dollar range determined by Congress that sets limits on what juries can assess for copyright infringement. For willful infringement, a jury can assess damages as high as $150,000 per incident. Gertner's ruling is more proof that the damage amounts lawmakers have enabled the music industry to claim for copyright infringement are too high are the courts--as well as much of the public--to stomach. In major file-sharing cases, the Recording Industry Association of America, the trade group representing the four largest record companies, is 0-for-2 in seeing jury awards held up by the courts.

Last year, Jammie Thomas-Rasset, the accused music-pirating Minnesota woman, saw U.S. District Judge Michael Davis slash the jury-awarded damages from $1.9 million to $54,000.

"The damages range within the law are an important signal about the potential penalties for illegal conduct," the RIAA said in a statement. "A jury decides, after hearing all the facts, what is the appropriate penalty. If a judge can disregard those facts and simply impose his or her own personal views, that undermines an important deterrent message established by Congress."

Judge's authority
In her ruling, Gertner gave consideration to the fact that there's no proof Tenenbaum shared music for commercial gain. But by reducing the award, Gertner overruled the jury as well as Congress.

"I don't think the law gives the judge the authority to lower the jury's award," said Ben Sheffner, an entertainment attorney and frequent blogger on copyright issues. "I don't think she should have altered it. I don't mean to say that I'm entirely comfortable with the amount as a matter of policy...but her decision seriously undermines the authority of Congress to set the range of statutory damages."

Not everybody sees it that way. Corynne McSherry, a staff attorney at the Electronic Frontier Foundation, an advocate group for tech and Internet users, on applauded Gertner decision.

"Gertner found there is quite a bit of evidence that Congress did not intend statutory provisions to be applied this way," McSherry said. "She concluded that the [original] damages award went far beyond what Congress intended or contemplated."

Gertner's decision will trigger all kinds of other problems, Goldman predicted.

"I expect more litigation battles over statutory damages," Goldman said. "Almost every copyright infringement defendant can advance a non-frivolous argument that statutory damages in their case would be unconstitutional. As a result, statutory damages cases will take more time and money."

Hurting 'Hurt Locker'
For the music industry, this may not mean much. The top labels gave up on filing copyright complaints against individual file sharers in December 2008. Gertner's decision, however, could come into play for Voltage Pictures, producers of the Oscar-winning film "The Hurt Locker."

D.C.-area law firm Dunlap, Grubb, & Weaver has begun filing lawsuits against individual file sharers on behalf of independent production companies. Voltage is among about a dozen filmmakers that have signed up with Dunlap, which is reportedly intending to sue a total of 50,000 people for allegedly illegally sharing movie files.

In letters, Dunlap notifies the accused that they can settle the case quickly by paying $1,500 but that if they refuse, the company could eventually ask for $150,000 if they can prove the person is liable for willful infringement. That kind of claim coming after award reductions in both the Thomas-Rasset and Tenenbaum cases could ring hollow.

Gertner's decision will also make settling copyright much harder, Goldman said.

"Defendants will have increased confidence in their low case valuations (given the possibility that statutory damages will be Constitutionally capped at $2,250/work)," Goldman wrote, adding that "most copyright owners will not accept this discount. As a result, due to the doctrinal uncertainty, the litigants will have an even harder time reaching a compromise."