Supreme Court Rejects Tenenbaum Appeal

Categorize this as dog-bites-man news but since I’ve posted about the Tenenbaum case many times ($675k, More on Tenenbaum, More on the Tenenbaum Judgment, Tenenbaum Postscript, $.70 a Song, and Court Reinstates Tenenbaum Damage Award), and discuss it in class I’ll note that the U.S. Supreme Court, without comment, decided not to hear Joel Tenenbaum’s appeal in his music-piracy case. This is not the end of the case; the federal district court in Boston must decide whether to leave standing the jury’s award of $675,000 in damages to the recording industry.

This is a strange case whose longevity (it began in 2007) reflects its status as an ideological battleground over music piracy–however poorly chosen a field of battle it offers to file-sharing’s true believers.

$.70 a Song

Joel Tenenbaum, BU’s own music pirate found liable last summer for copyright infringement in a case that attracted considerable media attention, is in the news again.  A federal court jury ordered Tenenbaum to pay $675,000 in damages to copyright holders for downloading 30 songs.  That’s $22,500 a song.   Tenenbaum’s pro bono lawyer Charlie Nesson argued yesterday to trial judge Nancy Gertner that the appropriate measure of damages would be the revenue lost because Tenenbaum didn’t purchase the songs from iTunes.  At the iTunes price of $.99 a song, assuming iTunes would pay the rights holder the standard 70% of the sale price, Nesson said the total damages should be no more than $21. The Boston Globe article about the hearing does not mention whether Gertner, plaintiffs’ counsel, the court clerk, the bailiffs, and the courtroom’s audience burst into laughter mention of Nesson’s damage figure.  There had to be considerable eye-rolling.  Many commentators, including me, have been critical of Nesson’s handling of this case (see prior posts).  Today he earns kudos for passing the straight-face test. The record companies’ lawyers response was that Tenebaum “has no one to blame but himself.”

Nesson’s strategy may prove to be a wily gamble.  Gertner’s 2009 order explaining her decision not to allow Tenenbaum’s fair use defense signaled in very clear terms her discomfort with the state of the law regarding file-sharing.  Gertner is very smart and not afraid to take a fresh look at this case.  Nesson’s $.70-a-song argument is calculatedly ridiculous.  Nesson did not cover himself with legal glory before and during Tenenbaum’s trial, but he is very smart.  By staking out such an extreme position he leaves Gertner plenty of room to maneuver.

Tenenbaum Postscript

From Ars Technica:  Massachusetts federal district court judge Nancy Gertner, who presided in the RIAA file-sharing trial of Boston University graduate student Joel Tenenbaum, this week entered default judgments in some file-sharing cases.  Judge Gertner awarded the RIAA statutory damages of $750 per downloaded song, or about $7,500 for each of the defendants who failed to contest the RIAA’s claims. In the Tenenbaum case the jury awarded the RIAA damages of $22,500 per downloaded song, a total of $675,000.   We always say jury trials are a crap shoot.  Tenenbaum’s jury was obviously unsympathetic to him, his counsel, and his argument–such as it was.  Using Gertner’s recent calculation had he failed to contest the RIAA’s claim he would have been ordered to pay damages of $22,500 (30 songs * $750).   And, of course, he could have settled for something in the range of $3-4,000.