In SONY BMG Music Entertainment v. Tenenbaum, in a 65-page decision, the First Circuit Court of Appeals has decided not to the address the question of whether the jury’s award of $22,500 per infringed work was unconstitutional under due process grounds, and remanded the case to judge Gertner for further proceedings, because the lower court’s ruling on the due process issue was premature, writes Ray Beckerman in Recording Industry Vs The People.

But,  “A federal appeals court affirmed a penalty that a jury levied against a teenager who downloaded and resdistributed thousands of songs from the Internet, says Bloomberg News.

The U.S. appeals court in Boston rejected a lower court’s reduction of the award.

And a,” federal appeals court on Friday reinstated a whopping $675,000 file sharing verdict that a jury levied against a Boston college student for making 30 tracks of music available on a peer-to-peer network, says Wired.

Writes Mike Masnick  in TechDirt >>>

Back in April, we went through the entire appeals court hearing concerning the appeal of Judge Nancy Gertner’s reduction of the jury award in the Joel Tenenbaum case as “constitutionally excessive.” The jury had awarded $675,000 or $22,500 per song. Gertner reduced it to $67,500, or $2,250, and argued that the higher rate was just ridiculous. Unlike Judge Michael Davis, who did something similar in the Jammie Thomas case, Gertner did not use the “remittitur” process.

As happens often enough in such things, almost nothing that was heard during the oral hearings really mattered in the decision. The question of due process and remittitur didn’t even make it into the hearing — or if it did, it was a very minor part that didn’t make an impact. And yet, that issue was central to the court reinstating the original $675,000 award.

The key points here are really procedural.

The court notes that Gertner jumped to the constitutional question, which judges are supposed to avoid if they can. The court also suggests that Gertner should have used the remittitur process, like Judge Davis, allowing the record labels to (as they would have) reject the lower amount and redo the trial. Of course, as we’ve seen in the Jammie Thomas situation, that seems to lead to a series of wasteful cases.

To summarize: the court here basically avoided the big questions and sent the ruling back, and reinstating the jury award because Judge Gertner jumped the gun, and went straight to the Constitutional questions, when there were still other steps in the process that needed to be taken. This seems disappointing and wasteful in terms of resources, but such are the rules.

Separately, the court, as pretty much everyone not named Tenenbaum or Nesson suspected, didn’t give any weight at all to Tenenbaum’s separate appeal arguing that the Copyright Act itself was unconstitutional. These arguments were never going to persuade the court, and seemed more like (wasteful) academic exercises all along. In particular, the court eviscerates the idea that mere “consumers” should be treated differently by copyright law than those who are doing more than consuming. It notes that such a distinction is not mentioned by Congress anywhere, and if it wanted to amend copyright law to fix that, it’s had plenty of time.

So, for the most part, this ruling is procedural… though it does go out of its way to note that “this case raises concerns about application of the Copyright Act which Congress may wish to examine.” Of course, by now we know that if Congress opened up the Copyright Act to tinker, the end result would almost certainly be worse.

Either way, I’m assuming this case is far from over, and Tenenbaum, Nesson and some other Harvard Law students will keep banging the drum — though, to date, it hasn’t been all that successful. This is definitely a disappointing ruling, but hardly a surprising one.

Says Beckerman: “This decision removes, from the playing field, a number of distractions.

“The less substantive issues that were being discussed in connection with the appeal are now gone, and the First Circuit has paved the way for the courts to focus on the central issue which presently presents itself in the SONY v. Tenenbaum case: Where a download of a single MP3 file having a retail value of 99 cents, a wholesale value of 70 cents, and a wholesale cost of approximately 35 cents, is established, and no proof of an infringement of the distribution right is established, can any award in excess of the statutory minimum of $750 be sustained under the doctrine of remittitur?”

This entry was posted on Saturday, September 17th, 2011 at 6:40 pm and is filed under P2P. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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