Looking More Closely At Judge Gertner's Constitutional Analysis Of Copyright Awards In Tenenbaum Case

from the the-battle-is-on dept

Mon, Jul 12th 2010 12:01pm — Mike Masnick

Last Friday, we quickly covered the news that Judge Nancy Gertner had declared the original jury award of $675,000 against Joel Tenenbaum for downloading and sharing some songs unconstitutionally excessive. Over the weekend, however, I had some more time to read the full ruling (posted by Eric Goldman) and get a sense of what Gertner's full argument meant. You can read the ruling here, and I highly recommend taking the time to read the whole thing:

In it, she clearly explains why the Constitutional analysis was necessary (she could have just reduced the award using the remittitur process, but noted that the RIAA made it clear they would challenge such a ruling, and thus it would eventually come around to the Constitutional questions no matter what.

So with that in mind, she clearly gave a lot of thought to the Constitutional questions, and goes back to the key point, that if the punishment is seriously out of line with any sort of "harm" caused, then it's unconstitutional. She notes that she must give deference to Congress' intent with the statutory rates it set for copyright infringement, as well as to the jury's verdict. But, even so, she suggests that the jury's award was way out of line with reasonable awards in other copyright lawsuits... and (more importantly) way out of line with Congress' intent of using statutory rates to deter infringement:

This award is 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.

In attacking the Constitutional questions, Judge Gertner spent a lot of time highlighting the case law on the Due Process Clause, noting many, many cases where the Supreme Court has made it clear that there are limits to what should be considered Constitutional when it comes to jury awards -- even in the case of statutory awards (even if the courts often seem to rule that in the cases they're looking at, the line has not been crossed).

Defenders of both the original Jammie Thomas award and the Joel Tenenbaum award have frequently claimed that the case law (mainly the BMW v. Gore case) doesn't apply since that was not for statutory damages, where the rates are clear and already set. That's going to be a key point made in the inevitable challenge to this ruling. But Gertner aptly explains why it's reasonable to explore whether or not the award is unconstitutionally excessive, even when it's within the statutory rates, and even suggests that both the government and the RIAA are misreading other precedents -- with the key one being the Williams case, which found a damages award acceptable because it fell within statutory rates. Gertner points out that the RIAA and the government are taking that ruling out of context, and only looking at the result, rather than the actual reasoning.

At their root, the standards articulated in Williams, BMW, and State Farm all aim at providing defendants with some protection against arbitrary government action in the form of damages awards that are grossly excessive in relation to the objectives that the awards are designed to achieve. Indeed, early twentieth century cases such as Williams were the seedlings from which the Supreme Court's recent punitive damages jurisprudence sprouted.

She also notes that even in the Congressional record in efforts to increase the statutory rates, Congressional members suggested that courts would make sure the actual awards were reasonable and not excessive:

In fact, Senator Orrin Hatch, a sponsor of the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, which increased section 504(c)'s statutory damages ranges to their current levels, stated in remarks regarding a predecessor of that bill, "In most cases, courts attempt to do justice by fixing the statutory damages at a level that approximates actual damages and defendant's profits."

That line right there might be pretty damaging to the RIAA's typical claim that courts are just supposed to assume that Congress knows best in setting the rates, and shouldn't try to approximate actual damages with statutory rates.

From there, Judge Gertner applies the test found in the BMW case, and points out that (contrary to some of the silliest claims from copyright system defenders), Congress clearly did not expect lawsuits against individuals sharing files for personal use when it set such high rates:

Later statements by Senators Orrin Hatch and Patrick Leahy, two sponsors of the Digital Theft Deterrence Act, strongly suggest that Tenenbaum is correct; they did not anticipate that individuals such as Tenenbaum who engaged in noncommercial file-sharing would be subjected to liability for statutory damages under section 504(c). Hatch and Leahy presided over a Senate Judiciary Committee hearing titled "Music on the Internet: Is There an Upside to Downloading?" on July 11, 2000.... During the hearing, the committee members demonstrated how the peer-to-peer system Gnutella is used by downloading and then playing a song by the band Creed. ... As the committee was downloading the Creed song, Senator Leahy proudly proclaimed that he was doing some of his own downloading on his laptop. ... When one of the developers of Gnutella pointed out to the committee members that they might be engaging in copyright infringement, Senator Hatch responded that their downloading and public performance of the Creed song qualified as "fair use" since it was carried out for "educational and governmental purposes." ... Nevertheless, the senators' willingness to download copyrighted sound recordings through a peer-to-peer network during a committee hearing suggests, at the very least, that they did not view such downloading as particularly reprehensible.

And this inference from the senators' conduct is largely confirmed by their words. Although Senator Hatch noted that peer-to-peer technology had the capacity, "if misused, to rob [artists] of their livelihood," ... he also praised the development of Gnutella as "quite an accomplishment," ... And Senator Leahy added:
[W]hen I go on college campuses, as many of us do, to talk and everybody is talking about what they have downloaded, how they share, and so on, and when my kids pick up a "Black Muddy River," which happens to be one of my favorites of the Dead, and send it to me -- they have heard a new version -- and I log on in the morning while I am having my breakfast and there it is, I mean this is a whole different world, and I think we have to recognize that on where we go.
Senator Hatch's tolerance of, if not admiration for, peer-to-peer networks was even more on display at a special Judiciary Committee hearing held on October 9, 2000, at Brigham Young University ("BYU"). ... Shawn Fanning, the founder of Napster, was the star witness at this hearing, and Senator Hatch repeatedly praised Fanning, expressing how "proud" he was of Fanning and even suggesting that Fanning should become a professor at BYU or run for political office. ... Obviously, Senator Hatch's comments should be taken with a large grain of salt... But his comments nevertheless suggest that he did not anticipate that the statutory damages scheme over which his committee had jurisdiction would be applied to users of Napster and other peer-to-peer networks.

I have to admit that I was unaware of these quotes from Senators Hatch and Leahy -- both of whom are normally seen as being very strongly in favor of strict copyright laws (Hatch, famously, once suggested coming up with a way to destroy the computers of file sharers).

On top of that, Judge Gertner compares the fines for Tenenbaum with restaurants and bars that have not paid their licenses, noting that those are clear cases of infringement for commercial reasons, yet the fines are a small multiple of the cost of a license. She points out that this seems like a much more egregious case, yet the awards are much lower:

The jury's award in this case also appears egregious in light of the damages typically imposed on restaurants, bars, and other businesses that play copyrighted songs in their establishments without first acquiring the appropriate licenses. These defendants are arguably more culpable than Tenenbaum. Unlike Tenenbaum, who did not receive any direct pecuniary gain from his file-sharing, defendants in these cases play copyrighted music to create a more pleasurable atmosphere for their customers, thus generating more business and, consequently, more revenue.... In addition, defendants accused of unlicensed public performances often receive several notices that their conduct is unlawful before they are sued. Thus, like Tenenbaum's file-sharing, their infringing conduct is generally willful. .... Nevertheless, the awards in such cases are generally no more than "two to six times the license fees defendants 'saved' by not obeying the Copyright Act"--a ratio of statutory to actual damages far lower than the ratio present in this case.

Clearly, this case is nowhere close to over, but it is still interesting to read through the details of the ruling. Obviously, Gertner knows this is going to be appealed, and she put a lot of effort into making the case for why this ruling was excessive, in hopes of having her reasoning help carry the later appeals.

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Filed Under: copyright, damages, jammie thomas, joel tenenbaoum, nancy gertner
Companies: riaa

34 Comments

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Anonymous Coward, 12 Jul 2010 @ 12:07pm

all gertner did was 'punt', making a ruling that very likely will not hold up anywhere else. it has many flaws.

the license one is the best. comparing tenenbaums actions to a restaurant music play license is already a thin draw, but taken to its logical conclusion, the potential size of tenenbaums establishment would be the number of people on p2p at any given time. so if you wanted to calculate the license based on seats or potential customers, it is safe to say that the license would be much larger than the statutory limits for copyright infringement.

basically, the ruling wont stand, it will go for yet another round, which will cost tenenbaum more time and money, and in the end, does nothing to resolve the underlying issues.
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- Anonymous Coward, 12 Jul 2010 @ 12:28pm
  
  Re:
  Once again, the judgments are for punitive damages. The number of people on P2P networks, or the number of seats in a restaurant, has absolutely no bearing on the matter.
  
  What Judge Gertner clearly highlighted was that a commercial BUSINESS infringing on copyright for commercial gain received a fraction of the penalty that a lone INDIVIDUAL with no commercial intent received.
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  - Anonymous Coward, 12 Jul 2010 @ 12:32pm
    
    Re: Re:
    the judge basically points that the damages for an establishment is generally "two to six times the license fees defendants 'saved' by not obeying the Copyright Act" - but establishments are licensed based on capacity. the capacity of a file sharing network is the number of people using it. so what would a license be for an establishment seating more than a million people?
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    - RD, 12 Jul 2010 @ 12:43pm
      
      Re: Re: Re:
      "the judge basically points that the damages for an establishment is generally "two to six times the license fees defendants 'saved' by not obeying the Copyright Act" - but establishments are licensed based on capacity. the capacity of a file sharing network is the number of people using it. so what would a license be for an establishment seating more than a million people?"
      
      Uh...zero, considering the ENTIRE INTERNET is not HIS BUSINESS ESTABLISHMENT. He isnt using music to draw CUSTOMERS in to his BUSINESS so they will BUY his products or services. Once again, a file sharing network != a business. Sorry, but you fail Econ 101, Business 101, Logic 101, Law 101 and a number of others all in one fell swoop.
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    - coldbrew, 12 Jul 2010 @ 12:46pm
      
      Re: Re: Re:
      I am going to go against the suggestion of RD below, and attempt to explain this clearly:
      
      one is a commercial operation, the other is a private individual with non-commercial interests. This is beyond simple, and shouldn't be difficult for you to understand.
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    - imbrucy (profile), 12 Jul 2010 @ 12:46pm
      
      Re: Re: Re:
      Yet you are still ignoring the fact that the action done by the business was done for the purpose of financial gain. They play the music to attract more customers to their business, but they don't pay the license to save money.
      
      There is no commercial gain in individual file sharing. The judge is pointing out that the business fine is less even though they are benefiting commercially from the infringement, where the individual fine is significantly more where there is no direct benefit (other than money from not paying for the songs).
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    - Anonymous Coward, 13 Jul 2010 @ 9:23am
      
      Re: Re: Re:
      The problem with this statement is that the plantiff can persue the subsequent violators in court. Where will they stop? They don't have to. Tenebaum may have conducted "willful infringement" and should be punished for it but the fact is that it will not stop there. Somebody downloads from him, the plantiff can persue them too. This action the judge took will pervent the excessive use and exploit of the case to further destroy the lives of ordaniary people when these execs are pulling down in excess of 1 million in bonuses per year and crying that these "priates are taking the food out of their mouths"
      
      (rant end)
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  - RD, 12 Jul 2010 @ 12:39pm
    
    Re: Re:
    "What Judge Gertner clearly highlighted was that a commercial BUSINESS infringing on copyright for commercial gain received a fraction of the penalty that a lone INDIVIDUAL with no commercial intent received."
    
    Dont bother trying to explain the difference to TAM and the RIAA Shilldogs. They dont care, they dont get it, they dont see the difference. To them, any unpaid use is CRIMINALLY ILLEGAL, period. Jail and permanent financial ruin of the individual is not enough punishment for them. If they had their way, he would have already been taken out the back and shot in the head. They have no morals or scruples, and see only their point of view, regardless of what the LAW or the judge say. They dont give one good god damn about who they hurt, or how much, they just want to HURT someone. They are bullies and psycopaths.
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    - Anonymous Coward, 12 Jul 2010 @ 2:53pm
      
      Re: Re: Re:
      "They are bullies and psycopath" - yeah but at least they can spell.
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      - RD, 12 Jul 2010 @ 3:00pm
        
        Re: Re: Re: Re:
        "They are bullies and psycopath" - yeah but at least they can spell."
        
        Ah yes. When you have no real argument, criticize the grammar. TAMhole rebuttal rule #3.
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      - Anonymous Coward, 12 Jul 2010 @ 4:34pm
        
        Re: Re: Re: Re:
        Grammar criticism! From the guy who can't type a capital letter to save his life?
        
        This judge has just about agreed with you that businesses make money off playing music. Quitting while you're ahead might be a good idea.
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      - Anonymous Coward, 12 Jul 2010 @ 4:39pm
        
        Re: Re: Re: Re:
        I can spell! Want to see!
        
        M - O - R - O - N
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      - The Groove Tiger (profile), 12 Jul 2010 @ 4:42pm
        
        Re: Re: Re: Re:
        Plural of psychopath = psychopaths.
        
        But it's good that you're finally agreeing that they are bullies and psychopaths, albeit ones that can spell.
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- Anonymous Coward, 12 Jul 2010 @ 4:20pm
  
  Re:
  Taking into account the size of a swarm I say Tenaubaum shared his work no more than 5 times and with no more than 50 peers.
  
  You see the swarm can track thousands but it actually connects to only a few, and everybody who used knows that Upload speeds are caped ridiculously low so to make difficult to upload anything, it takes minutes to download something but it can take days to upload the same amount.
  
  So if we would calculate the license size it would be hundreds of dollars not thousands.
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- btrussell (profile), 13 Jul 2010 @ 3:52am
  
  Re:
  Right, because the underlying issue is: Who uploaded first?
  Without original upload, no one else could have done a thing.
  Maybe it was the rights holder, making it legal or maybe trying to frame people?
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  - Dave, 13 Jul 2010 @ 6:41am
    
    Re: Re:
    This is a good point. Let's imagine for a moment that I offer to distribute a song for a rightsholder, and ask recipients to further distribute the song, in exchange for a personal copy. Let's say they agree, and they, or their agent, provide me with a copy of the song to fulfill this agreement.
    
    They could sue me if I DIDN'T distribute it.
    
    By participating in a bittorrent swarm (or having their investigators participate in a bittorrent swarm) the rightsholders make every subsequent upload lawful.
    
    Similarly, the only way for a movie to "leak" is if someone with access purposefully distributes it. The only criminal in this case is the person who leaked it without authorization. As some organizations use bittorrent for legitimate marketing and distribution, swarm participants should be presumed to be acting in good faith.
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Anonymous Coward, 12 Jul 2010 @ 12:18pm

Just as obviously the Department of Justice is going to file a brief in support of the position that Judge Certner has clearly overstepped her bounds, not to mention a host of other issues where her decision diverges from judicial precedent.

This is not an easy question to examine and answer, and I believe people will eventually find that many, many more legal issues will come to the fore that may influence in significant ways the eventual outcome.

BTW, the Senators' comments noted above, while interesting and perhaps even amusing, are irrelevant to the issues at hand.
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- Pitabred (profile), 12 Jul 2010 @ 12:47pm
  
  Re:
  ...irrelevant? They're the ones who wrote the laws. How, exactly, are their comments about said laws and the actions covered by those laws irrelevant?
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  - Anonymous Coward, 12 Jul 2010 @ 12:55pm
    
    Re: Re:
    Perhaps the fact that laws are enacted by vote from all members of Congress, and the last time I looked these gentlemen were but two votes.
    
    The associated Presidential Signing Statement is likewise not congruent with the comments by the two Senators.
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    - Anonymous Coward, 12 Jul 2010 @ 3:00pm
      
      Re: Re: Re:
      The fact that no member of congress has absolute control over the law doesn't make any of their opinions irrelevant. You may argue that it's not significant, but it is relevant.
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- coldbrew, 12 Jul 2010 @ 12:55pm
  
  Re:
  BTW, the Senators' comments noted above, while interesting and perhaps even amusing, are irrelevant to the issues at hand.
  
  Um, what? I'll point out why their comments ARE relevant:
  
  Later statements by Senators Orrin Hatch and Patrick Leahy, two sponsors of the Digital Theft Deterrence Act,
  
  Given these very relevant law makers' comments, Congress may revisit these laws in order to make their original intent more clear. But, you can hope and pray they do not.
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cs, 12 Jul 2010 @ 12:58pm

FYI
Many of you are reading too much into this opinion. This is about the constitutionality of damages, not the correctness of the ruling. The guy still has to pay $62,500 in fines. Clearly the Judge, and the law, stands behind the principle that it is wrong to take and use something that someone else created without permission.
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- coldbrew, 12 Jul 2010 @ 1:12pm
  
  Re: FYI
  "You can get anything you want at Alice's Restaurant."
  
  *walks out*
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- xs (profile), 12 Jul 2010 @ 2:21pm
  
  Re: FYI
  The ruling confirms that the law as currently written says the guy has to pay damage for infringment. It has nothing to do with whether it was "wrong to take and use ... without permission", or whether this action really truely is "take and use something" in the first place.
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- Jay (profile), 12 Jul 2010 @ 6:16pm
  
  Re: FYI
  ...
  
  Let's just forget the fact that having to pay so much when he's a college student, who doesn't make a lot of money is having to be a martyr for the supposed sins of X^10 amount of people.
  
  Let's just forget that 10 times the amount of filesharing continues and there's so many people that were sued, the RIAA couldn't get to them all and try to support their behavior.
  
  Let's also forget that not everyone is rich like the RIAA fat cats and the laws can be changed for the betterment of society but sadly, that won't be because of lobbying interests.
  
  Oh, no. It all rests in our permission culture that says he's wrong in using a song for noncommercial use and not wanting to pay ~$30 for all of the songs on an album he probably wouldn't have bought in the first place.
  
  Great argument.
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  - Anonymous Coward, 12 Jul 2010 @ 7:49pm
    
    Re: Re: FYI
    "Let's just forget the fact that having to pay so much when he's a college student, who doesn't make a lot of money is having to be a martyr for the supposed sins of X^10 amount of people. " - so you are proposing that civil lawsuits be set only as a percentage of income, perhaps? maybe anyone living at or below the poverty line could get all the content they want for free, and perhaps share it with their friends too freely?
    
    wow.
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    - Jay (profile), 12 Jul 2010 @ 8:03pm
      
      Re: Re: Re: FYI
      That was more satire than me being serious.
      
      How it is set up, Tenenbaum is guilty of infringement. Fine. Whatever, he downloaded the song. But his charge is for him to be set with a penalty that he has NO way to pay. That's unconstitutional. It falls under cruel and unusual punishment that he has to pay the price of the album X10. You really can't justify him paying because he is some supposed commercial infringer. He isn't! He's one downloader that got hit with the lightning bolt of the RIAA out of millions.
      
      Quite frankly, there's no way in hell he should have been charged such an egregious amount.
      
      Also, Here and here is more information about my view on the downloading.
      
      Trying to make me sound as if I'm all for his punishment to be the original amount is just poor form.
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      - Anonymous Coward, 12 Jul 2010 @ 11:44pm
        
        Re: Re: Re: Re: FYI
        "How it is set up, Tenenbaum is guilty of infringement. Fine. Whatever, he downloaded the song." - actually, it isnt a question that he downloaded the song, as much that he actively seeded the song and shared it with others.
        
        by sharing it out, he becomes a sort of commercial offender, because in some ways his acts compete against the legitimate commercial market.
        
        "He's one downloader that got hit with the lightning bolt of the RIAA out of millions." - no, he is an abusive seeder who willfully violated copyright, knowing that the law existed. he didnt just get a copy for himself, but made sure that many other people around the world got access to the work as well.
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        Jay (profile), 13 Jul 2010 @ 1:17am
        
        Re: Re: Re: Re: Re: FYI
        To which I'm going to again refer you to my original satirical argument:
        
        "Let's just forget the fact that having to pay so much when he's a college student, who doesn't make a lot of money is having to be a martyr for the supposed sins of X^10 amount of people."
        
        We have no way of knowing true damage but we have to believe he has to pay something? And that something is the price of a new Mercedes Benz for those in the RIAA? That's what I find most egregious about this. Even then, the GAO report shows that the industry's methodology is beyond flawed as well as the fact that they hype up a problem which really, I mean, REALLY, isn't killing their industry.
        
        "by sharing it out, he becomes a sort of commercial offender, because in some ways his acts compete against the legitimate commercial market. "
        
        ... You really expect me to believe that he's competing with the likes of Wal-Mart, Target, and iTunes because of his 30 song library? So let's get this straight... He could have listened to all of those songs on Youtube and it would have been ok. He could have listened to them on the radio and recorded them to a CD or tape deck and avoided harm. But because the files were made from his computer, and his folder was set to "share" he is automatically bumped up to destroying the commercial market... Not to mention this impedes his constitutional rights of avoiding cruel and unusual punishment (such as garnishment of his wages for the rest of his natural life)
        
        ...
        
        Your logic eludes me... Maybe the next sentence can help me understand.
        
        "no, he is an abusive seeder who willfully violated copyright, knowing that the law existed. he didnt just get a copy for himself, but made sure that many other people around the world got access to the work as well."
        
        And you started out so well... "Abusive" is the word you want to use on a guy for 31 songs. I see that you also didn't check out the references in my post, much to my chagrin. It explains how the corporate numbers are bunk. Just because the copyright was violated, it doesn't mean he has to be a martyr for the cause.
        
        You've yet to explain how he should be upgraded to a commercial offender. This should be interesting... Why should he have to pay so much for these songs, when even the bar owners pay far less in their disputes in ASCAP?
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        Anonymous Coward, 13 Jul 2010 @ 2:06am
        
        Re: Re: Re: Re: Re: FYI
        >by sharing it out, he becomes a sort of commercial offender
        
        So... he sort of pays. As in not even complete damages because he's not even a fucking complete commercial offender.
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    - btrussell (profile), 13 Jul 2010 @ 3:56am
      
      Re: Re: Re: FYI
      You prefer one person be responsible for everyone else?
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- DH's Love Child, 12 Jul 2010 @ 7:07pm
  
  Re: FYI
  "Clearly the Judge, and the law, stands behind the principle that it is wrong to take and use something that someone else created without permission."
  
  Um, I'm sorry, it's late and has been a long decade, what exactly did he take? I thought this was a copyright infringement case, not theft or embezzlement.
  [ link to this | view in chronology ]
Anonymous Coward, 13 Jul 2010 @ 6:02pm

Agree with you as always.

Quick annoying request: Can you fix the tag (in this article and the predecessor) so that Tenenbaum is spelled correctly and all the articles are linked? Thanks!
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Daniel Scheinhaus, 19 Jul 2015 @ 7:57am

latest ruling on the Tenenbaum Case
It was interesting to learn that even strong supporters of copyright law as the Senators referred to don't believe that
people who download for non-commercial purposes shouldn't have to pay fines that exceed what the copyrighter lost in revenue by very much. Of course, that needs further clarification.
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