The Globe today reported on the $675,000 verdict against BU graduate student Joel Tenenbaum in the illegal music downloading trial that has been going on before Judge Gertner in the U.S. District Court.
Tenenbaum was represented by Charles R. Nesson the Weld Professor of Law at Harvard Law School. You may remember Professor Nesson as “billion-dollar Charlie” from Jonathan Haar’s book, A Civil Action.
According to the Globe article, these cases typically settle for a few thousand dollars. The applicable law provides for statutory damages in an amount between $750 and $30,000 per act of infringement, and if the infringement was willful, up to $150,000 per infringement. But Tenenbaum, who I suspect was egged on by Nesson, decided to go to trial.
Here’s where things get embarrassing. It seems that through the course of the litigation, Tenenbaum gave sworn statements that he then contradicted at trial. And in a dramatic moment, it seems that at the end of his testimony, just before the verdict, he actually admitted liability, causing the judge to find him liable and the leave only question of damages for the jury to decide. Who prepared Tenenbaum to testify? Did anyone bother?
It also seems that Professor Nesson made audio-recordings of depositions in the case–perhaps for use in the classroom?–without the knowledge of the lawyers on the other side of the case. This is potentially a crime, as well as an apparent violation of the Rules of Civil Procedure, which require a lawyer taking a deposition to notify the other side of the method to be used to record it (though perhaps if Professor Nesson was recording depositions taken by the other side, he would not be in violation of the rule–I’m not sure).
Now, Professor Nesson says he will appeal on the judge’s failure to instruct the jury on fair use. I’m not a copyright law expert, but I’ve heard others describe this issue as likely to lose.
In any case, it seems clear to me that Professor Nesson did not really act to protect Tenenbaum’s interest. This twenty-something graduate student is now facing bankruptcy when he could have settled the case for next to nothing.
Memo to Professor Nesson: next time, write a Law Review article!
TedF
Nesson’s antics are all about Nesson, with the client an afterthought.
But Tenenbaum, egged on for sure, is a 25 year old. No innocent. A doctoral student. He signed on for this, perhaps thinking about becoming a hero for breaking the evil record companies. Or maybe which actor would play him in the movie as the brave young man.
<
p>Plus
<
p>
<
p>That’s classy, throw your sisters under the bus.
<
p>Tenenbaum should learn about bankruptcy law, and Nesson should donate $675,000 to a worthy charity. Harvard professors not looking so good these days.
Maybe Counselor Nesson’s client can find a bankruptcy lawyer that works cheap.
So, first off, Professor Nesson claims that the recording was with permission and obvious, so it’s unlikely that he either violated the rules of civil procedure or any criminal law.
<
p>As for his representation of Joel, Joel tried for months to work out a settlement with the Record Industry for an amount that was commensurate with how much money he had (less than their typical $3000 demand. They declined and he was sued, and he continued in settlement negotiations, eventually offering over $5000, but the RIAA wouldn’t settle for less than $10000 at that point.
<
p>By then he had enlisted his mother to help him defend the lawsuit. Professor Nesson heard of his case and offered to help.
<
p>You can get Joel’s story at:
http://joelfightsback.com/
Here is my favorite quote:
<
p>
<
p> So I don’t get it. If there really was no dispute that what he did was illegal, and the real defense was simply that everyone else is doing it, what did he (and Professor Nesson) expect would happen at trial? Did they really expect that the judge would allow the jury to find in their favor on liability? Judge Gertner did exactly what she was supposed to do given Tenenbaum’s admissions–she entered judgment as a matter of law for the plaintiff on liability.
<
p>TedF
another “teaching moment” about that old adage “those who can, do, those who can’t, teach.”
<
p>Let’s add this example to the carnage of Long Term Capital Management. Reliance on “brilliant” professors not exactly schooled in economic realities can be a recipe for disaster. Of course, given that line of thought, where does that leave Professor Obama?
He was caught for doing something many people do, and which some people do to a more serious extent, or more often, without being caught. It would have been only a $10,000 ticket, but he contested it and lost. I’m sure everything went according to the letter of the law- but still, there’s something offensive, to both reason and justice, about the outcome.
The plaintiffs obviously don’t expect to collect such a huge judgment. A lot of IP plaintiff’s don’t. Do you think these famous brand names think they are getting ANYTHING when the sue Joe Schmo making fake Nike t-shirts? They are simply setting an example – even though illegal music downloading is easy to do and very common, there are (potentially huge) legal consequences for it. I feel for this guy – bad luck on his part to be the example defendant – but if these record labels are to ever maintain ownership of their rights, I don’t see any other option…
<
p>Except for suing the provider of the music downloads, which they have been fairly successful in doing as well. They actually might get their dough that way too.
They’ve announced that they will not file any more lawsuits. Which means that the RIAA is soaking people for doing something that they will no longer sue people for doing.
I should say that I think there is an interesting and perhaps meritorious issue in this case: Are the damages in this case so disproportionate to the actual harm that they are unconstitutional? There is a constitutional limit in punitive damages cases, and I think the same principle might well apply here. But that doesn’t seem, from the Globe article, to be what this trial was about.
<
p>TedF
….act does not provide for punitive damages and to my knowledge there is no precedent that has read such damages into the statute. Certainly, here, there is no mention that the damages reached by the jury were punitive. As such, no constitutional question has been raised. At issue is whether the compensatory damages provided by the jury are excessive. Neeson, before running to appeal the case should petition Judge Gertner for remittitur – a process by which the judge may elect to offer the plaintiff the choice of reduced damages or a new trial. If the judge declines, it would only be overturned for abuse of discretion, which statistically speaking doesn’t happen very often in federal practice.
<
p>So, in short, the defendant has a means to argue the damages are too high, but it is not a constitutional issue.
<
p>
The statute that I cited gives the plaintiff the choice of “actual damages” or “statutory damages.” Actual damages are, of course, what they sound like. Statutory damages range from $750 to $30,000 per act of infringement. The point is that statutory damages are, in effect, punitive, as they bear no relationship to the actual damages and are meant to deter.
<
p>TedF
….they are not punitive damages, they are statutory damages. Statutory damages are not synonymous with punitive damages. They are available specifically because damages can be difficult to calculate where intellectual property is concerned and are available, in this case, to spare a plaintiff the added cost in litigation of calculating actual damages. They are not meant to punish the defendant but rather to aleviate the burden of the plaintiff and the jury may not consider punishing the defendant when awarding.
<
p>A judge, in her discretion, may increase an award of statutory damages if the plaintiff meets their burden to show that the infringer acted willfully. There is a long standing legal tradition of increasing compensatory damages where the defendant has acted with willful intent to impede or defraud, it is a matter of judicial discretion and to my knowledge never run afoul of the Constitution, except where mandatory or applied retroactively. However, you will note that here, that did not happen. The award by the jury was their reasoned finding for harm inflicted without consideration of punishment within the statutory range.
<
p>Now, whether the statutory damages are arbitrary so as not to bear any relation to the harm caused…that is the real question. And the one that I suspect Professor Neeson is trying to answer (perhaps with Mr. Tenenbaum’s consent). But that is a different questions. The issue with Punitive damages is that they are not predictable and in theory can run afoul of due process because an offender is not put on reasonable notice of the monetary punishment they will receive.
<
p>Here an infringer is on clear notice…up to 30,000.00 per infringement, plus discretionary increased damages for willful infringement. Doesn’t even come close to the tens of millions of dollars in punitive damages awarded in individual cases that the SCOTUS has upheld as passing constitutional muster.
<
p>Frankly, I don’t think the SCOTUS will even bat an eye at these. They have a set limit and they, by definition, are not meant to punish but rather to compensate.
<
p>And the cite is 17 USC 504, not 15.
After all, it’s not like this kid is Exxon.
<
p>Round 1
<
p>Round 2
<
p>Round 3
<
p>Round 4?
<
p>
….and oranges.
<
p>Exxon received a financial punishment meted out by a jury unfettered by any legal standard and “this kid” received a legally predictable judgment against him within the statutory limits.
<
p>Even if the former seems to have deserved it and the latter is being unjustly punished, it is not about any one’s sense of moral equity. It is about legal predictability and due process.
I have a couple questions about copyright infringement:
1. Are you automatically the owner of a copyright on everything you create as an individual (such as a blog post), or do you have to fill out some kind of paperwork to get the honor of being a copyright holder?
2. If so, if somebody swipes your blog post, by, say, posting it in its entirety somewhere else, keeping your name but absorbing some of your theoretical ad revenue, can you sue for $30,000 or whatever?
<
p>Regarding this case specifically, It seems so weird to me that the bare minimum, presumed economic damage is $750, such that the jury cannot even try to use their own judgment to approximate the actual economic harm done to a plaintiff.
It also baffles me that any jury, in a case such as this one, would ever award a penny more than the bare statutory minimum per song uploaded, when the uploader himself made no money at all from the copyright infringement, and the damage to RCA/Sony/whoever from this particular uploader would have to be fairly close to negligible.
Perhaps it’s time to revisit the statute- take out the minimum and lower the maximum award per download/upload infringement, except in cases of demonstrable economic harm to a plaintiff or actual ill-gotten profit by the defendant.
Down at the bottom of the page, it says “All content © BMG Media Empire LLC.” If somebody copies your blog post and posts it elsewhere, I guess it’s up to BMG Media Empire LLC to go after them, if their borrowing doesn’t comply with the some rights reserved creative commons link down there.
<
p>Some blogs do it differently. MetaFilter says “All posts are © their original authors.” Several other blogs and a cartoon series have been caught copying MeFi comments, and the subsequent storm of complaint has resulted in all those borrowings’ disappearance.
…get a little complicated.
<
p>1) You do not need to register a work to assert copyright privileges, but you must have registered the copyright to be eligible for statutory damages and to be awarded legal fees. This is another reason for the statutory damages…it encourages people to register their copyright.
<
p>2) Not if it was not registered…and you need to remeber fair use. But in theory, if you registered a blog post and someone infringed upon it, you could sue for special damages. But you can’t just ask expect the 30k. The jury, or in the case of a bench trial, the judge will determine the damages.
<
p>The bare minimum of 750.00 is so low as to qualify as nominal damages. I don’t agree with the assertion that it need be lowered. As far as statutory damages being applied in theses sorts of cases, it is definitely true that statutory damages pre-exist file sharing, so re-visiting the statute to determine whether it is still current in regard to modern technology is not a bad idea. But
Call it statutory damages or punitive damages, the issue is the same–is there a constitutional limitation on damages that seem grossly disproportionate to actual harm? I don’t think we’re disagreeing. And I didn’t make any point about multiple damages for willfulness, attorney’s fees, etc., so I don’t see that we disagree on that, either.
<
p>TedF
..but it is not an either/or situation, it is not tom-ay-to/to-mah-to. Statutory damages and punitive damages are not the same thing and to link them, even for the sake of debate flaws the debate.
<
p>And the issue is not the same. It is not really even about the lack of proportion of the harm to the damage. That is not what the SCOTUS finds when it reduces punitive damage amounts. They find that the unpredictability of punitive damages runs afoul of due process…so it is not about proportion it is about predictability.
<
p>Here, with these statutory damages there is predictability. Infringe on someone’s copyright and a the jury can award the injured party between 750.00 and 30,000.00. To deliver damages proportionate to the harm is an issue of fact for the jury to decide. The SCOUTUS is very unlikely to invade that territory especially where there are limitations that prevent the final award from being unpredictable.
that discusses the need for some kind of proportion of the actual harm : punitives. Campbell v. State Farm. Held that due process requires some relationship between the actual harm and punitives … somewhere in the range of single digit proportions. Scalia dissented.
<
p>However, I agree with Anthony that we aren’t dealing with punitives here.
<
p>As far as the difference between actual damages and the statutory damages, the choice is up to the plaintiff to decide which route is best. Clearly, they made the right choice ehre.
…State Farm discusses proportionality in light of punitive damages accompanying a very high award for actual damages.
<
p>Here, there is no such interplay between actual and punitive damages – but only statutory damages – which is why I highlighted the issue of predictability.
I think it’s kind of amusing; interesting to see Neeson’s enrollment figures for this fall. Stay in the classroom and out of the courtroom would be my advise.
and he’s not a pie-rat sailing the seas near Africa boarding shipping vessels. He violated copyright.
<
p>When I steal, I deprive you of real property — be it your cash, your candy bar, your car.
<
p>When I pirate, I board your vessel and use violence to extract money or goods from the vessel, the occupants, or other entities.
<
p>
<
p>This guy copied 30 songs. The owner still has those songs. The owner was not deprived of real property. The RIAA and MPAA vessels haven’t been boarded, nobody’s been taken hostage, and there’s no ransom.
<
p>
<
p>Let’s keep this in perspective, shall we? The law sucks. The damages are far too high and don’t translate to lost revenue the RIAA et al might face (even if one ‘trebles’ for damages).
Not a tangible object, no… And not in the sense that they are deprived of the song either. But by violating the copyright – that’s the same as stealing. He circumvented the appropriate procedure for reproducing the song – i.e. paying 99 cents for it! (or whatever it would cost on iTunes)
<
p>The law sucks for him, sure. But it’s needed to keep the music industry a profitable business.
There’s a reason we have the phrase “violating copyright.” It’s because it’s not the same as “stealing.” Copyright violations have been going on since, well, the invention of copyright. We didn’t start calling it “stealing” until the MPAA and RIAA did, in an effort to make them seem the same. Every child is taught that stealing is wrong because by taking something without permission, you’re depriving the owner of that item. Likewise, every child is taught that sharing is good because sharing increases economic good (in this case, fun).
<
p>You’ll note that the RIAA and MPAA never use “file sharing” because that evokes thoughts of positive behavior. Instead, they go out of their way to use words like “theft” and “piracy” because those words evoke thoughts of negative behavior. “Copyright infringement” evokes neither.
<
p>
<
p>It’s not at all clear that its “needed” to keep the music industry a profitable business, and it’s certainly the case that no law should exist merely to keep any business profitable, as we do not live in a fascist state.
Sorry.
…the assumption that Nesson acted outside the best interest of his client to be unfounded and, frankly, a bit defamatory.
<
p>I don’t agree with his thesis, but he has maintained as a a matter of intellectual principle that statutory damages in copyright infringement cases are excessive and improper. Why presume that he ran slip-shod over his client? Perhaps his client and he share the same goal of exposing these damages to appellate review.
<
p>It is a basic tenet of legal ethics that the client controls whether to settle or proceed to trial. To assume that Nesson breached an ethical duty with no evidence other that an adverse decision and a client who choked on the stand is a little outrageous.
First, I’m not accusing Professor Nesson of violating any ethical duty, because I am not personally informed about the case: I only know what I’ve read.
<
p>I can only tell you what I would do as a lawyer facing this situation. Given that there was no real defense to liability (discounting the “fair use” argument), I would advise my client to settle for the small amount demanded rather than to expose myself to the risk of the catastrophic judgment. Perhaps this is what Professor Nesson was doing behind the scenes, and Tenenbaum resisted him and insisted on going to trial. If so, good for Professor Nesson.
<
p>But is that the most likely scenario? We’re talking about “Billon Dollar Charlie,” or as he likes to call himself, “Eon, Dean of Cyberspace.” Professor Nesson made public emails he had received from other professors whom he had tried to recruit as expert witnesses in the case, but who rejected his fair use theory. Here is a quote from Ben Sheffner of the blog Copyrights & Campaigns:
<
p>
<
p>So I do not think it unreasonable to question Professor Nesson’s antics in this case.
<
p>TedF
..you are insinuating that Professor Nesson breached an ethical duy. You suggest that he has pressed his client into a trial for the purposes of his own agenda. You are not just questioning his “antics” you are drawing conclusions without any evidence.
<
p>It seems much more likely to me that the good professor and his client fully expected to lose and are looking forward to the appeal to challenge the validity of the damages. I don’t support his theory, but if his client does; and wanted to go to trial to get to the appeal then he is not a bad lawyer. You have to do what the client wants-and aiming to challenge a law is a reasonable client desire. It happens all the time. And in cases were that happens it is usually with a lawyer who shares the same political agenda.
STOP DOWNLOADING ILLEGALLY!!! This case demonstrates that it’s simply not worth the risk. Given the ease of legal downloading for often $1/song on Amazon and Itunes, I’m surprised people are still willing to risk it…