In a disappointing ruling, the First Circuit Court of Appeals today overturned a decision by a federal district court that had downsized damages in Sony v. Tenenbaum, a file-sharing case in which a jury originally ordered a college student to pay $675,000 for infringing copyrights in 30 songs. District court Judge Nancy Gertner had found the award so "oppressive" as to be unconstitutional, and reduced it to $67,500. The appellate court did not expressly disagree on the constitutional question but found the court should not have considered the issue. Citing the doctrine of "constitutional avoidance," which dictates that courts should avoid tackling constitutional issues unnecessarily, the court found that Judge Gertner should first have considered using a procedure called "remittitur." Under this procedure, she could have lowered the damages amount, but, if the record companies chose not to accept the new amount, they could have asked for a new trial.

Working with the Stanford Fair Use Project and the Samuelson Law, Technology & Public Policy Clinic, EFF had filed a brief in the case urging the First Circuit to affirm Judge Gertner's ruling, particularly in light of the intimidating effect of excessive copyright damage awards on fair users. Too often, creative people with strong and legitimate fair use defenses will fear standing up to legal threats, because the risk of losing in court is just too high. As we explained then, this case offered an important opportunity to clarify copyright law for creators and protect their due process rights. Too bad the appellate court declined to take it.

Interestingly, though, the court's opinion does echo another district court in suggesting that it is time for Congress to take another look at statutory damages:

We comment that this case raises concerns about application of the Copyright Act that Congress may wish to examine.

Hear, hear.

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