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Sony BMG v. Tenenbaum

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Sony BMG v. Tenenbaum
CourtFirst Circuit Court of Appeals
Full case name Sony BMG Music Entertainment et al. v. Tenenbaum

In the case of Sony BMG Music Entertainment et al. v. Tenenbaum, record label Sony BMG, along with Warner Bros. Records, Atlantic Records, Arista Records, and UMG Recordings, accused Joel Tenenbaum of illegally downloading and sharing files in violation of U.S. copyright law. It was only the second file-sharing case (after Capitol v. Thomas) to go to verdict in the Recording Industry Association of America's (RIAA) anti-downloading litigation campaign. (The vast majority of cases having been settled out of court.[1]) After the judge entered a finding of liability, a jury assessed damages of $675,000, which the judge reduced to $67,500 on constitutional grounds, rather than through remittitur.

After both parties appealed, the First Circuit Court of Appeals reinstated the original damage award of $675,000 and remanded the case to the District Court, ruling that the judge should have avoided the constitutional issue by first considering remittitur. The Supreme Court refused to hear Tenenbaum's appeal arguing against the remand. A new District Court judge then found no cause for remittitur, and held that the statutory damage award was constitutional. Tenenbaum again appealed to the First Circuit, which in June 2013 upheld the award.

Background

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Joel Tenenbaum's issues started as a college student where he was accused of spreading songs to millions of people by uploading them onto P2P networks like Napster and Limewire.[2]

The record companies alleged they had given him warnings of these crimes prior to the trial and told him to stop what he was doing right away. They claim he had given a wide array of excuses as to why he was still distributing these songs.

Tenenbaum was not the only one who had been given a lawsuit as, after September 8, 2003, there were thousands of similar lawsuits being filed. Over 5 years the number of cases surpassed 35,000 and caused the court to apply the Copyright act to the digital realm.[3]

Court case

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Pre-trial

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In 2003, a demand for $3,500 was received at Tenenbaum's parents' house for songs that the then 20-year-old allegedly downloaded. Tenenbaum explained his financial situation as a student and offered a partial payment of $500, which was ultimately rejected.[4][5]

After several other correspondences, the five record labels later filed suit against Tenenbaum in August 2007, accusing him of copyright infringement for the sharing of thirty-one music files via Kazaa, and demanding statutory damages. Tenenbaum then offered the plaintiffs the original complaint amount of $5250, but the music companies declined, and subsequently demanded "double."[5][6] In a pre-trial conference in June 2008, Tenenbaum's mother stated "my son was offered $12,000, your Honor, and every time we appear that goes up." The plaintiffs responded that Tenenbaum had filed several motions with the court, and that "as our legal fees go up, so will the settlement amount that we offer."[7]

A few months before the trial, the court dismissed Tenenbaum's abuse of process claim against the plaintiffs, excluded four of his expert witnesses, and denied his motion to exclude all MediaSentry evidence, which could be used to link the file-sharing to his computer. Jurors who used social networks to obtain music were also excluded. Harvard Law School professor Charles Nesson, Tenenbaum's pro bono attorney, claimed this was unfair as Tenenbaum no longer had a trial by a jury of peers.

In the month before the trial, Nesson petitioned the Court to be allowed to present a fair use defense to the jury. Although the Court considered the late addition of the defense "troubling," the Court allowed limited discovery to proceed over the plaintiffs' strenuous objections. However, eight hours before trial, upon consideration of both parties' arguments, the Court issued a summary judgment against the defense. In its detailed response five months later, the Court described Nesson's fair-use arguments as "perfunctory".[8]

Trial

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The case went to trial in the last week of July 2009.[9]

Nesson argued that Tenenbaum's situation was similar to the Napster situation in 1999 and that he did not intend any harm nor understood the copyright laws.[10] The plaintiffs claimed Tenenbaum repeatedly infringed copyright laws and that he had taken actions to evade the law.[11]

During the trial, Tenenbaum answered "yes" to the plaintiff's counsel's question "Mr. Tenenbaum, on the stand now are you now admitting liability for downloading and distributing all 30 sound recordings that are at issue and listed on Exhibits 55 and 56 of the exhibits?"[12] The next day, Judge Nancy Gertner issued a directed verdict, instructing the jury that liability was no longer at issue; they only needed to determine an appropriate amount for damages, which would be partly based on whether they believed the infringement was "willful."[13]

On July 31, 2009, the jury awarded $675,000 to the music companies, taking a middle option between the statutory minimum ($22,500 total) and maximum ($4.5 million) for willful infringement. Nesson had planned to appeal; if the verdict had stood, Tenenbaum had planned to file for bankruptcy.[5][14]

Post-trial

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On July 9, 2010, Judge Gertner reduced Tenenbaum's fines to $67,500,[15] holding that arbitrarily high statutory damages violate due process and are thus unconstitutional,

far greater than necessary to serve the government's legitimate interests in compensating copyright owners and deterring infringement. In fact, it bears no meaningful relationship to these objectives. To borrow Chief Judge Michael J. Davis' characterization of a smaller statutory damages award in an analogous file-sharing case, the award here is simply 'unprecedented and oppressive.'[16]

On July 21, 2010, both parties filed notice to appeal the ruling.[17]

Appeal

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Main article: Sony BMG Music Entertainment v. Tenenbaum

Oral arguments in the appeal were held in the First Circuit on April 4, 2011.[18]

The appeal broached several topics, one of which was the District Court's authority to reduce a statutory damage award on constitutional grounds. Two Supreme Court cases were cited: BMW of North America, Inc. v. Gore and St. Louis, I.M. & S. Ry. Co. v. Williams. Tenenbaum argued for the application of the Gore standard, which regards punitive damage awards as eligible for reduction, and allows actual damages to be taken into consideration. The record companies and the U.S. Government countered that statutory damages and punitive damages are different things, so the Williams standard, which is less stringent than Gore, should apply.

On September 16, 2011, the First Circuit rejected all of Tenenbaum's arguments, and, avoiding the question of which standard to apply, held that the District Court had erred by ruling on the constitutionality of the jury award before considering whether the award should be reduced by common law remittitur.[19] It vacated the reduction in damages, reinstated the original $675,000 award, and remanded to the District Court for reconsideration of the remittitur question[19] by another judge, since Gertner retired.[20] Gertner's retirement followed her appointment at Harvard Law, where she is now a colleague of Professor Nesson.[21]

On 31 October 2011, attorneys for Tenenbaum filed a petition for a rehearing in the First Circuit Court of Appeals because "it is unconstitutional to instruct a jury that it can return an unconstitutionally excessive award. To instruct the jury that it may ascribe an award in a range of up to $4,500,000 against a noncommercial copyright infringer is punitive, excessive, not authorized by statute, and a denial of due process."[22] On November 17, 2011, the Court denied the request to rehear the case.[23]

Tenenbaum's lawyer then asked the Supreme Court to hear the case, arguing that the Appeals Court should not have sent the case back to District Court, because the plaintiffs would likely reject an award reduced by remittitur and would opt for a retrial, pushing Tenenbaum "down an endless litigation rathole" on a "retrial merry-go-round." The Supreme Court declined to hear the case, leaving no option but for the District Court to decide whether to reduce the award via remittitur.[24][25]

Post-appeal

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In early 2012, the parties submitted briefs and responses to the District Court regarding the remittitur and due process issues.[26] [27][28][29][30][31] The plaintiffs asked the court to strike or disregard Tenenbaum's reply briefs, which, in violation of procedure, contained facts and arguments that were not in his opening brief.[32]

On June 5, 2012, Tenenbaum requested a new trial to determine a new damage award.[33] Although Judge Gertner and the Court of Appeals had both already rejected this argument when it was made on constitutional grounds,[16][19][23] Tenenbaum reasoned that if the District Court feels that the jury award was unjust, this time for any reason, then the statutory range given in the instructions to the original jury was unjust, and the instructions were therefore faulty and a new damages-amount trial is warranted.[33] The record companies asked the court to strike or reject Tenenbaum's request, maintaining that the award was not excessive, and arguing that the trial request had no legal basis and was untimely since it contravened the Appeals Court's remand for consideration of remittitur.[34]

On August 23, 2012, Judge Rya W. Zobel, Judge Gertner's successor, rejected Tenenbaum's request for a new trial as untimely, and disregarded the facts and arguments improperly raised in Tenenbaum's reply briefs.[35]

In the same order, Judge Zobel acted on the remand, holding that reduction of the award via remittitur wasn't warranted, since the jury had ample reason to find that Tenenbaum willfully infringed.[35] A footnote in the First Circuit's remand stated that in this situation, the District Court and the parties to the case "will have to address the relationship between the remittitur standard and the due process standard for statutory damage awards."[19] Judge Zobel ruled in favor of the plaintiffs, noting that Gore had never been applied to statutory damages; reasoning that two of the three "guideposts" in Gore couldn't logically apply to statutory damages; and citing many examples of case law that support applying Williams.[35] The court also cited the legislative history of the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, which raised the statutory damage limits for several reasons, one of which was to be a more effective deterrent in response to widespread copyright infringement on the Internet.[35][36][37]

Given the deference afforded Congress' statutory award determination and the public harms it was designed to address, the particular behavior of plaintiff in this case [...] and the fact that the award not only is within the range for willful infringement but also below the limit for non-willful infringement, the award is neither "wholly disproportioned to the offense" nor "obviously unreasonable." It does not offend due process.[35]

— Hon. Rya W. Zobel, D. Mass

Accordingly, the District Court held that $675,000 award, as previously reinstated by the First Circuit Court of Appeals, stands.[35]

Tenenbaum submitted notice of appeal to the First Circuit on September 17, 2012.[38] In June 2013, the First Circuit upheld the statutory damages award:[39]

The evidence of Tenenbaum's copyright infringement easily justifies the conclusion that his conduct was egregious. Tenenbaum carried on his activities for years in spite of numerous warnings, he made thousands of songs available illegally, and he denied responsibility during discovery. Much of this behavior was exactly what Congress was trying to deter when it amended the Copyright Act. Therefore, we do not hesitate to conclude that an award of $22,500 per song, an amount representing 15% of the maximum award for willful violations and less than the maximum award for non-willful violations, comports with due process.[40]

Tenenbaum subsequently filed for Chapter 7 bankruptcy in November 2015 and the court granted a discharge of the $675,000 judgement against him in March 2016.[41]

Admonishments by the court

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Throughout the case, Judge Gertner issued numerous admonishments of both the plaintiffs and the defense, and implored Congress to take action to stop these kinds of lawsuits. Examples follow.

Against the plaintiffs

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In the June 2008 hearing, when discussing Tenenbaum's need for a lawyer, Gertner expressed dismay at the plaintiffs' tactics in the over 133 file-sharing cases heard in her court at that point:[7]

There is a huge imbalance in these cases. The record companies are represented by large lawfirms with substantial resources. The law is also overwhelmingly on their side. They bring cases against individuals, individuals who don't have lawyers and don't have access to lawyers and who don't understand their legal rights. Some [...] read the summons, and they haven't the foggiest idea what it means and don't know where to go, and they're defaulted, and they owe money anywhere from $3,000 to $10,000 as a result. Sometimes they answer and get counsel, and because the law is so overwhelmingly on the side of the record companies, there's a negotiated settlement which is slightly lower than the settlement the people that are unrepresented have been getting—in other words, with a lawyer you can get some kind of leverage, but it is a delaying game in some sense. [...] It simply doesn't make sense to fight them as an individual, per se, and to some degree you run the risk that the longer you [...] fight without having a basis to do so, the plaintiff's legal fees go up and up. I can't say this is a situation that is a good situation or a fair situation; it is, however, the situation. [...] If you really wish to stand and fight, you need to have legal representation because otherwise all you're going to do is stand in place, their fees go up and we'll end this case with the higher end of the statutory damages rather than the lower end. [...] The best that I can do given the state of the law and the unequal resources is to try to level the playing field as best I can, to try to find lawyers. The lawyers look at a case in which the law is so overwhelmingly on the side of the record companies and say 'why should we get involved?' So the group of lawyers that we're trying to get to represent you [...] is not a very large group, which is why we've had difficulty.[7]

Gertner went on to admonish the plaintiffs directly:

Counsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers, to fully understand [...] that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it.[7]

Against the defense

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The court at one point described the defense as "truly chaotic," stating that defense counsel "repeatedly missed deadlines, ignored rules, engaged in litigation over conduct that was plainly illegal (namely, the right to tape counsel and the Court without consent), and even went so far as to post the illegal recordings on the web."[8]

To the legislature

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In the memorandum and order regarding fair use, Gertner acknowledged Nesson and Tenenbaum's argument that the general concept of fairness should be considered, but said that it was for the legislature to deal with:

As this Court has previously noted, it is very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written. It urges—no, implores—Congress to amend the statute to reflect the realities of file sharing. There is something wrong with a law that routinely threatens teenagers and students with astronomical penalties for an activity whose implications they may not have fully understood. The injury to the copyright holder may be real, and even substantial, but, under the statute, the record companies do not even have to prove actual damage.

Similarly, the First Circuit Court of Appeals commented "this case raises concerns about application of the Copyright Act which Congress may wish to examine." However, the court did not explain what those concerns are, and its opinion repeatedly expresses certainty that Congress intended for the Act, including the entire allowable range of statutory damages, to be applied to cases such as Tenenbaum's.[19]

Songs at issue and implications

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The initial lawsuit included the following 31 songs.[42] However, the Smashing Pumpkins song was removed from the list prior to the trial, so only 30 songs were at issue.

Copyright Owner Artist Recording Title Album Title
Sony BMG Music Entertainment Incubus New Skin Science
Warner Bros. Records Green Day Minority Warning
Arista Records Outkast Wheelz of Steel Atliens
Sony BMG Music Entertainment Incubus Pardon Me Make Yourself
UMG Recordings Nirvana Come As You Are Nevermind
Warner Bros. Records Green Day When I Come Around Dookie
Warner Bros. Records Green Day Nice Guys Finish Last Nimrod
UMG Recordings Nirvana Heart Shaped Box In Utero
UMG Recordings Nine Inch Nails The Perfect Drug The Perfect Drug (EP)
UMG Recordings Blink-182 Adam's Song Enema of the State
UMG Recordings Limp Bizkit Rearranged Significant Other
UMG Recordings Limp Bizkit Leech Three Dollar Bill, Y'all$
Warner Bros. Records Linkin Park Crawling Hybrid Theory
Warner Bros. Records Deftones Be Quiet And Drive Around The Fur
Sony BMG Music Entertainment The Fugees Killing Me Softly The Score
Warner Bros. Records Red Hot Chili Peppers Californication Californication
Warner Bros. Records Red Hot Chili Peppers By The Way By The Way
Warner Bros. Records Red Hot Chili Peppers My Friends One Hot Minute
UMG Recordings Beck Loser Mellow Gold
Virgin Records America Smashing Pumpkins Bullet With Butterfly Wings Mellon Collie and The Infinite Sadness
Interscope Records Eminem My Name Is The Slim Shady
Interscope Records Eminem Drug Ballad The Marshall Mathers (EP)
Interscope Records Eminem Cleaning Out My Closet Eminem Show
UMG Recordings Beastie Boys (You Gotta) Fight for Your Right (To Party) Licensed To Ill
Warner Bros. Records The Ramones The KKK Took My Baby Away Pleasant Dreams
UMG Recordings Monster Magnet Look To Your Orb For The Warning Dopes To Infinity
Sony BMG Music Entertainment Aerosmith Pink Nine Lives
Arista Records Outkast Rosa Parks Aquemini
Sony BMG Music Entertainment Rage Against the Machine Guerrilla Radio Battle Of Los Angeles
Warner Bros. Records Goo Goo Dolls Iris Dizzy Up The Girl
UMG Recordings Aerosmith Water Song/Janie's Got A Gun Pump

See also

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References

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  1. ^ Harvard Journal of Law and Technology: Stephanie Weiner, "Sony BMG Music Entertainment v. Tenenbaum," August 12, 2009 Archived 2012-04-29 at the Wayback Machine, accessed April 4, 2012
  2. ^ "Music downloading damages against BU student Joel Tenenbaum left intact by US Supreme Court - Boston.com". Archived from the original on 2012-10-10.
  3. ^ "Archived copy" (PDF). Archived from the original (PDF) on 2013-10-29. Retrieved 2013-04-30.{{cite web}}: CS1 maint: archived copy as title (link)
  4. ^ "Joel Fights Back - It's about more than just music". joelfightsback.com. Archived from the original on 2009-08-03.
  5. ^ a b c Vijayan, Jaikumar (August 7, 2009). "Q&A: Tenenbaum says he faces bankruptcy after $675K piracy verdict". Computerworld.
  6. ^ "RIAA Changes its Tune, But Lawsuits Continue". PCWorld. 21 December 2008.
  7. ^ a b c d "Motion Hearing transcript, Capital [sic] Records, Inc., et al. vs. Noor Alaujan, et al. / London-Sire Records, Inc., et al. vs. Does 1-4" (PDF). June 17, 2008. Archived from the original (PDF) on 2012-05-22. Retrieved 2018-08-27.
  8. ^ a b "Memorandum and Order, Sony BMG Music Entertainment, et al., v. Joel Tenenbaum" (PDF). December 7, 2009. Archived from the original (PDF) on 2012-05-22. Retrieved 2018-08-27.
  9. ^ Tenenbaum, Joel (27 July 2009). "How it feels to be sued for $4.5m". The Guardian. London. Retrieved 31 July 2009.
  10. ^ "Professor CVs".
  11. ^ Weiner, Stephanie (2009-08-12). "Sony BMG Music Entertainment v. Tenenbaum". Archived from the original on 2012-04-29. Retrieved 2011-11-23.
  12. ^ "Case 1:07-cv-11446-NG Document 20: Testimony of Joel Tenebaum [sic]" (PDF). July 30, 2009. p. 102. Archived from the original (PDF) on 2011-08-19. Retrieved 2011-04-05.
  13. ^ "Case 1:03-cv-11661-NG Document 909: Jury Instructions". July 31, 2009. Retrieved 2011-04-05.
  14. ^ Standora, Leo (July 31, 2009). "Court orders Boston University student Joel Tenenbaum to pay $675G for illegally downloading music". New York Daily News. Retrieved August 26, 2010.
  15. ^ "Boston judge cuts penalty in song-sharing case". Associated Press. 2010-07-09. Retrieved 2010-07-09.
  16. ^ a b "Memorandum & Order Re: Defendant's Motion for New Trial or Remittitur" (PDF). July 9, 2010.
  17. ^ Sheffner, Ben (22 July 2010). "Labels file notice of appeal in Tenenbaum case". Retrieved September 7, 2010.
  18. ^ Mackey, Alexandra (2011-04-08). "Sony v. Tenenbaum Saga: File-Sharing Case Makes Its Way to First Circuit". Intellectual Property Brief. Retrieved 2011-09-15.
  19. ^ a b c d e Sony BMG v. Tenenbaum, Nos. 10-1883, 10-1947, 10-2052 (First Circuit 2011-09-16).
  20. ^ Valencia, Milton (2011-09-21). "Court upholds fine in music download case". Boston Globe. Archived from the original on 2012-01-06. Retrieved 2011-10-09.
  21. ^ Harvard Law School: "http://www.law.harvard.edu/news/2011/02/4_practice.html", accessed May 4, 2011
  22. ^ "Petition for Rehearing en banc of the Defendant, Apellee/Cross-Apellant" (PDF). Oct 31, 2011. Retrieved 2012-06-05.
  23. ^ a b Thomson Reuters. "Practitioner Insights". {{cite web}}: |author= has generic name (help)
  24. ^ Lavoie, Denise (May 21, 2012). "Court won't reduce student's music download fine". Associated Press. Retrieved May 22, 2012.[dead link]
  25. ^ Weiss, Debra (May 21, 2012). "Supreme Court Turns Down File-Sharing Appeal Challenging Remittitur Procedure". Retrieved May 22, 2012.
  26. ^ "Defendant's Opening Brief on Remand" (PDF). 2012-01-03. Retrieved 2012-09-10.
  27. ^ "Intervenor United States' Memorandum on Remand" (PDF). 2012-01-27. Retrieved 2012-09-10.
  28. ^ "Plaintiffs' Memorandum of Points and Authorities" (PDF). 2012-01-27. Retrieved 2012-09-10.
  29. ^ "Defendant's Reply Brief to Intervenor United States' Memorandum on Remand" (PDF). 2012-02-06. Retrieved 2012-09-10.
  30. ^ "Defendant's Reply Brief to Plaintiffs' Memorandum of Points and Authorities" (PDF). 2012-02-06. Retrieved 2012-09-10.
  31. ^ "Defendant's Response to Plaintiff's Motion to Strike, or in the Alternative, to Disregard Defendant's Reply Briefs" (PDF). 2012-02-16. Retrieved 2012-09-10.
  32. ^ "Plaintiffs' motion to strike, or in the alternative, disregard defendant's reply briefs" (PDF). 2012-02-13. Retrieved 2012-09-10.
  33. ^ a b "Further submission of the defendant" (PDF). June 5, 2012. Retrieved 2012-06-05.
  34. ^ "Plaintiff's motion to strike defendant's amended further submission" (PDF). 2012-07-06. Retrieved 2012-09-10.
  35. ^ a b c d e f "Sony BMG Music Entertainment, et al. v. Joel Tenenbaum - Order" (PDF). 2012-08-23. Retrieved 2012-09-10.
  36. ^ 1999 Congressional Record, Vol. 145, Page H6798 (August 2, 1999)
  37. ^ "Copyright Damages Improvement Act of 1999 - Report [to accompany H.R. 1761]" (PDF).
  38. ^ "Defendant's Notice of Appeal" (PDF). 2012-09-17. Retrieved 2012-09-18.
  39. ^ "Joel Tenenbaum's $675,000 Music Downloading Fine Upheld". Huffington Post. June 25, 2013. Retrieved June 26, 2013.
  40. ^ Sony BMG v. Tenenbaum, no. 12-2146, (1st Cir June 25, 2013)
  41. ^ Joel N. Tenenbaum, Case 15-14315, District of Massachusetts
  42. ^ "Plaintiffs Supplemental Disclosure Statement 10.28.08". 28 October 2008. Retrieved 11 August 2009.
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