Judge Reduces Penalty in Nesson Case

Ruling the penalty unconstitutional for its violation of due process, the federal court significantly reduced Friday the $675,000 in damages that Boston University graduate student Joel Tenenbaum had been ordered to pay four large recording companies for illegal file-sharing.

In a 62-page ruling of the case, U.S. District Court Judge Nancy Gertner called the original award, which had been administered last August, "unprecedented and oppressive." Even the reduction of the damages to $67,500, or $2,250 per each of the 30 songs downloaded and distributed by Tenenbaum, lay on "the outer limit" of what the jury could constitutionally impose, Gertner wrote.

"This award is far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement," Gertner wrote about the original figure. "In fact, it bears no meaningful relationship to these objectives."

Led by Harvard Law School Professor Charles Nesson ’60, the co-founder of the Berkman Center for Internet and Society who took on the case pro bono in the fall of 2008, Tenenbaum’s defense team plans to continue the legal battle, according to a post on the defendant’s website JoelFightsBack.com. The next step for the defense team, the website stated, is to "demonstrate that Joel was denied a fair jury trial when Judge Gertner told the jury in her instructions that it could award an unconstitutionally excessive amount."

"A $67,500 pricetag for 30 songs is still a bill Joel cannot afford," the post continued.

Last July, Tenenbaum’s defense team contended in court that downloading songs for non-commercial use stayed within the bounds of fair-use of copyrighted material. Gertner dismissed the argument on the grounds that such a standard would legalize all downloading of copyrighted material for private use and thereby "swallow the copyright protections that Congress has created."

The following month, a federal jury ordered Tenenbaum, a 26-year-old doctoral student in physics, to pay $675,000 in damages for willfully infringing on the copyrights of 30 songs, including Nirvana's "Comes As You Are" and Nine Inch Nails' "The Perfect Drug."

Though Gertner reiterated in her most recent ruling that Tenenbaum’s actions did not constitute fair-use, she wrote that the $675,000 penalty was unjustifiable under the Fifth Amendment’s due process clause. The damages award, Gertner argued, exceeds the amount necessary to compensate the plaintiffs and deter others from copyright infringement.

The reduction in penalty sends the message that the due process clause not only protects large corporations from "grossly excessive punitive awards," but ordinary citizens like Tenenbaum as well, Gertner wrote.

In a statement, the Recording Industry Association of America said that it will contest the ruling, and that the court's decision shows it has "substituted its judgment for that of 10 jurors as well as Congress."

Gertner denied the rest of the defense’s motion, including a request for retrial on the basis that she permitted as evidence a letter that Tenenbaum had sent to the plaintiffs in 2005, with his settlement offer redacted from the letter’s text.

Responding to a Sept. 2005 letter from the plaintiffs demanding he stop engaging in file-sharing, Tenenbaum wrote a letter in November offering to destroy any remaining files. This portion of the letter was admitted as evidence. According to his website, the redacted portion of Tenenbaum’s letter included his offer to settle for $500, after the plaintiffs offered him a $3,500 settlement.

Gertner wrote that the Tenenbaum case differs from similar due process cases in that Tenenbaum’s award fell within the range of statutory damages for willful copyright infringement: $750 to $150,000 per work.

Most of the 30,000 defendants charged with illegal downloading during a five-year litigation campaign by the recording industry settle for between $3,000 and $12,000. In the only other file-sharing case to go to trial, Capitol Records vs. Thomas-Rasset, the defendant was originally ordered to pay $1.92 million in damages for downloading 24 songs. This amount was subsequently reduced to $54,000.

Gertner wrote in her ruling that since Tenenbaum’s actions were similar Jammie Thomas-Rasset’s—in that both had engaged in file-sharing while aware of its illegal nature, committed multiple acts of infringement, attempted to place blame on other parties, and lied under oath—his award similarly should be reduced.

In the trial last summer, Nesson encouraged his client to admit he had downloaded and distributed the copyrighted works, after claiming in previous depositions that he had not.

Nesson’s team has gained attention for its controversial tactics. According to media reports, prior to the trial, Nesson had posted on his blog e-mail messages from colleagues who disagreed with his planned defense, as well as a tape recording of a telephone conference with a federal judge and opposing counsel.

—Staff writer Chelsea L. Shover can be reached at clshover@fas.harvard.edu.