RIAA Tries to Stop Snowball Effect on Reduced Damages in Boston P2P Case

Major labels are trying to avoid a rerun of a decision by U.S. District Judge Michael Davis in Minneapolis, who last month reduced a $1.92 million judgment against P2P defendant Jammie Thomas-Rasset to $54,000, calling the original sum “monstrous and shocking” (CED Jan 25 p5). U.S. District Judge Nancy Gertner in Boston, who has shown sympathy to some of P2P defendant Joel Tenenbaum’s arguments and has questioned the legitimacy of the penalties in the Copyright Act, will consider Tenenbaum’s motion at a hearing Feb. 23.

The RIAA’s filing was unusually personal in its attacks on a P2P defendant, sharper than its filings against Thomas-Rasset. Responding to Tenenbaum’s claim that the major labels made him out to be “a liar, a perjurer, and a person dodging responsibility for his actions and blaming others under oath for his conduct,” the RIAA agreed that “he is all of those things -- and he has no one to blame but himself."

Contrary to Tenenbaum’s claims, “Congress has specifically acknowledged the role of juries in determining statutory damages,” and the Supreme Court ruled in the Feltner case that juries have the sole authority to determine “all issues pertinent to an award,” the RIAA said. There was nothing out of the ordinary about Gertner’s instructing the jury on the statutory range of $750 to $150,000 per infringing work, since judges have discretion over the “form and wording” of instructions and Tenenbaum offered no evidence of abuse of discretion, the filing said.

Feltner gives no indication that a judge can change a jury award that falls in the statutory range, the RIAA said. That leeway applies only to punitive damages, it said: Statutory damages serve a “broader range of purposes” -- to deter infringement, encourage civil enforcement and provide redress for harm. Referring to Davis’ ruling in the Thomas-Rasset case, the RIAA said judges can’t put “arbitrary limits” on damages for specific types of infringement, even if the infringer is a noncommercial user whose swapping was for “personal use,” as Tenenbaum claimed to be. “Infringers can cause the same harm regardless of their motivation,” and Congress expressly rejected making proof of profit-seeking a condition for winning substantial damages.

"While Tenenbaum may not have sold the music he stole, he likely caused more harm to Plaintiffs by intentionally giving it away for free to millions of other P2P users than he would have by offering it for sale,” the filing said. Gertner shouldn’t impose her own “subjective view of the ‘right’ amount” for Tenenbaum to pay, because that would intrude on the roles of the jury and Congress. Though major labels sued over 30 sound recordings, the jury found that Tenenbaum downloaded and distributed thousands of recordings, “intentionally seeded” multiple P2P networks with new copies, continued such behavior for nearly 10 years despite repeated warnings, including after the suit was filed, and lied and concealed evidence -- justifying the jury’s $22,500 award per infringing work, the RIAA said. “It is hard to imagine a defendant more culpable than Tenenbaum … a highly educated physicist who knew and understood the law but chose to break it anyway."

The RIAA also challenged Tenenbaum’s argument that a “fair use interregnum,” during which music wasn’t available in open digital formats, justifying online swapping, excused his behavior. Gertner had mused that swapping could be considered fair use before the iTunes Music Store made digital music purchases widely available, but she chided Tenenbaum for an overly broad fair-use argument. The RIAA called Gertner’s musings “unsupported dictum” that she herself called “speculating” as to the boundaries of fair use -- Gertner’s stated reason for not letting the issue be briefed.

Recognition of an “interregnum” would “undermine fundamental notions of copyright law” -- the right of an owner to decide when and how to publish and distribute works, the filing said. Tenenbaum is suggesting “a plaintiff would have to distribute its works at all times and in all formats” to protect its rights. The whole basis of Tenenbaum’s “DRM made me do it” defense is factually flawed, considering that Tenenbaum testified that he had long used iTunes to purchase music, making no distinction between its pre-2007 use of DRM and its later abandonment of protection, the RIAA said.