IP Intelligence

Home | IP Intelligence

In 2005 the parents of Joel Tenenbaum, then a college student, received a notice directing them to call the Recording Industry Association of America (RIAA) to arrange payment of $5,250 for pirated music downloaded to their home computer.   The songs were downloaded by Mr. Tenenbaum.  Neither he nor his parents met the demand.  In 2007, Sony Music and others sued Tenenbaum for copyright infringement.

Also in 2007, Charles Nesson, a Harvard Law School professor wrote an <a title="open letter" href="http://cyber.law.harvard.edu/node/479">open letter</a>, responding to the RIAA's request for assistance from universities, suggesting that the universities "tell the RIAA to take a hike."  Nesson stated that the RIAA "seem[s] to be engaging in a classic tactic of the bully facing someone much weaker: threatening such dire consequences that the students settle without the issue going to court."    

Nesson wound up representing Tenenbaum and the case went to trial.  Tenenbaum admitted to infringing the 30 recordings at issue, and Sony sought statutory damages, which, under <a title="section 504 of the Copyright Act" href="http://www.law.cornell.edu/uscode/text/17/504">section 504 </a>of the Copyright Act could range from $200 per song for innocent infringement to $150,000 per song for willful infringement.   Although Tenenbaum originally was portrayed as a victim, the trial painted different picture, including that: Tenenbaum infringed thousands of songs over an eight year period; he ignored repeated warnings that he was breaking the law; Tenenbaum was less than candid about his file-sharing activities and admittedly lied during discovery; Tenenbaum destroyed evidence; and Tenenbaum blamed a foster child living in his house, his sisters and other family members, guests, and even "burglars" for using his computer--though Tenenbaum later admitted (after his family members were forced to testify) that his family members were not involved in the infringement.

The jury awarded $675,000 against Tenenbaum.  However, after trial, Judge Nancy Gertner, issued an order <a href="https://ipintelligencereport.bakerhostetlerblogs.com/wp-content/uploads/sites/11/2012/09/District-Court-remittitur.pdf">(included here)</a>, finding that the jury award was arbitrarily high and violated Tenenbaum's due process rights. Judge Gertner reduced the award to $67,500.   

Both sides appealed and the Court of Appeals for the First Circuit issued an opinion <a href="https://ipintelligencereport.bakerhostetlerblogs.com/wp-content/uploads/sites/11/2012/09/Tennenbaum_First-Circuit.pdf">(included here)</a>  affirming the findings of liability but reversing Judge Gertner's reduction of the jury verdict.  The First Circuit ruled that Judge Gertner should have considered the issue under the common law doctrine of remittitur, and remanded to the District Court for just such a consideration.

Judge Gertner retired and on remand the case was considered by Judge Rya Zobel.  In an opinion and order (<a href="https://ipintelligencereport.bakerhostetlerblogs.com/wp-content/uploads/sites/11/2012/09/Tenenbaum-8_23_12.pdf">included here</a>) issued on August 23, 2012, Judge Zobel reconsidered some of the evidence against Tenenbaum, including his lack of candor throughout the proceedings, and destruction of evidence and concluded:
<p style="padding-left: 60px">[T]here was ample evidence of willfulness and the need for deterrence based on Tenenbaum’s blatant contempt of warnings and apparent disregard for the consequences of his actions. 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.</p>
&nbsp;

An Expensive Lesson: 30 Illegal Song Downloads Cost $675,000.00.