July 9, 2010 | By corynne mcsherry

Judge Cuts Damages in Sony v. Tenenbaum

Many were shocked last year when a Massachusetts jury awarded $675,000 in damages against Joel Tenenbaum, who had been found liable for copyright infringement after using peer-to-peer networks to download and share thirty of the plaintiffs' songs. In a lengthy ruling issued today, federal district court Judge Nancy Gertner held that the jury’s award — which equaled $22,500 per song — was unconstitutional and reduced it dramatically, to $67,500.

Echoing Chief Judge Michael Davis' comments in Capitol v. Thomas, Judge Gertner observed that the original award was "unprecedented and oppressive." The judge also indicated that the reduced award was still too high, noting it was "more than I might have awarded in my independent judgment. But the task of determining the appropriate damages award in this case fell to the jury, not the Court. I have merely reduced the award to the greatest amount that the Constitution will permit given the facts of this case."

But the most interesting aspect of the ruling may be the court's conclusion that Congress never intended copyright's extraordinary statutory damages provisions — which permit an award of up to $150,000 per work if the defendant has willfully infringed — to apply to noncommercial users of peer-to-peer networks, even if they are found liable for willful infringement. After a lengthy review of the legislative history, Judge Gertner found that there was "substantial evidence indicating that Congress did not contemplate that the Copyright Act’s broad statutory damages provision would be applied to college students like Tenenbaum who file-shared without any pecuniary gain."

Taken together with Chief Judge Davis’s opinion imploring Congress to amend the Copyright Act to address liability and damages in peer-to-peer network cases, today's ruling sends a strong message in favor of restoring sanity to copyright damages. As many of the Doe defendants recently targeted in the United States Copyright Group mass lawsuits can doubtless attest, oppressive damages provisions are one reason even folks with legitimate defenses will settle rather than fight. And the problem with statutory damages goes well beyond the p2p context. One reason many fair users who are the victims of improper takedowns don't fight back is the prospect of going bankrupt if they stand up, fight back and, despite overwhelming odds in their favor, lose. It's a gamble with their life savings that most people just aren't willing to take, even when their works are clear fair uses and even if they get free legal help.

Kudos to Judge Gertner for recognizing that "no plausible rationale" could justify the original award, and that our Constitution does not permit grossly excessive damages — even in copyright cases.


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