Supreme Court Denies Appeal in Tenenbaum File-Sharing Case

One of the actions taken by the Supreme Court yesterday was to deny the petition for certiorari by Joel Tenenbaum in his protracted file sharing case out of the District of Massachusetts.  Tenenbaum was found liable for sharing or downloading 30 songs on the Internet and assessed statutory damages to the tune of $22,500 per each track, or $675,000.  The District Court lowered the damages to about 10% of that figure on constitutional grounds. 

Tenenbaum appealed to the Supreme Court on four questions:

1. Do statutory damages under § 504(c) of the Copyright Act apply to noncommercial individuals without requirement of nexus with actual damages?

2. Did the Feltner Court redraft § 504(c) to authorize juries to set statutory damages which Congress had authorized only judges to impose?

3. Should instructions to juries charged with awarding statutory damages against noncommercial copyright infringers quote the statutory maximum, clearly intended for commercial infringers?

4. Does the Seventh Amendment require a judge who remits an excessive statutory damage award to offer the plaintiff a new trial as an alternative to accepting the remitted award?

The Court did not bite on any of them, condemning Tenenbaum, as his petition states, to “an endless cycle of retrials at the behest of corporate plaintiffs whose tactic has been to overwhelm and bankrupt noncommercial individual defendants with the asymmetric burden of federal litigation.”  This is because the plaintiff record labels do not have to accept a reduction in damages and can have a new trial on damages as a result.

Tenenbaum is not exactly the poster child for sympathy in this case.  The District Court found evidence that he was repeatedly warned about his activities by the labels and relatives and chose to pursue sharing.  The “everybody’s doing it” defense did not work at trial or on appeal.  The petition to the Supreme Court tried to work an argument that there should be some relationship between actual damages and statutory damages for shaping an award.  It also argued that there should be some consideration for a non-commercial infringer.

I agree with Tenenbaum’s argument to the extent that the record labels will not reduce damages willingly.  That’s a precedent they will never set.  They may have abandoned the practice of suing file sharers, but that doesn’t mean they can’t resume that strategy for whatever reasons.  It’s possible that the Court expects one side to blink on settlement or acceptance of the outcome.  It’s also possible that the District Court could deny a future motion for remitter and set up an appeal that squarely addresses the constitutional issue of excessive damages.  I wouldn’t bet that the Court would take up the issue even in that scenario.

News coverage of the denial of certiorari is in Bloomberg and CNET.  [MG]