Another Tenenbaum appeal

By | Published on Tuesday 8 November 2011

Joel Tennenbaum

So, the Tenenbaum case continues. Quick recap. Joel Tenenbaum. Student. Does some naughty file-sharing of unlicensed content. Sued by Recording Industry Association Of America. Chooses not to settle out of court. Goes to court. Bullish legal rep Charles Nesson presents pretty lacklustre defence. Tenenbaum found guilty of copyright infringement. Ordered to pay $675,000 in damages. Can’t pay, won’t pay. Judge cuts damages to $67,500 on constitutional grounds. Appeals court says if damages to be cut different legal process required, reinstates $675,000 damages.

And so we’re up to date. Legal reps for the famous file-sharer have requested another appeal, and this time they want a hearing ‘en banc’, which means all the appeals court’s judges would hear the case, rather than the usual panel of three. Constitutional matters remain Nesson’s focus, even though Judge Nancy Gertner’s use of constitutional rights to revise the level of damages Tenenbaum should pay was previously rejected by appeals judges.

This time Nesson will argue that his client’s first trial was unconstitutional because the judge instructed the jury that they could award damages as high as $4,500,000 (the limit set by US copyright law for the number of copyrights infringed in this case), but then later admitted herself such high damages were unconstitutional. Therefore, Nesson’s argument goes, the judge incorrectly advised the jury and rendered the ruling counter to the US constitution. Or something like that.

According to TorrentFreak Nesson’s legal papers, filed with the court last week, say: “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 non-commercial copyright infringer is punitive, excessive, not authorised by statute, and a denial of due process”.

The petition continues: “The defendant has challenged as unconstitutional the use of federal law and process to threaten catastrophic fines against the generation of kids who were downloading and sharing music peer-to-peer. The massive campaign of lawsuits initiated by the recording industry against people who copied music for personal use and never sold or considered selling it in any commercial way was entirely unprecedented”.

It remains to be seen if the appeals court will grant Tenenbaum another appeal hearing en banc, and if so what the outcome of such a hearing would be, slashed damages, a new trial or, presumably Nesson still hopes, an overturning of the judgement against his client?