In the latest round of the Recording Industry Association of America (RIAA)’s quest against college student (now grad student) Joel Tenenbaum for being a prolific unauthorized music downloader, the 1st Circuit Court of Appeals recently reinstated a $675,000 verdict in favor of the RIAA vs. Tenenbaum (click here for the Google Scholar version of the ruling).
Previously, the trial court judge reduced the verdict of $675,000 for willfully infringing the copyrights to 30 songs (that’s $22,500 per song) to $67,500. The Court of Appeals reinstated the $675,000 verdict because the trial court judge improperly ruled the verdict was unconstitutional without first ordering a remittitur (an obscure procedure wherein the judge can reduce a verdict, after which the plaintiff can either accept the reduced verdict or seek a new trial).
The remittitur ruling is not too exciting, but it is a good excuse to discuss the larger issue of the merits of the system of calculating statutory damages in copyright infringement cases. Even the Court of Appeal noted “this case raises concerns about application of the Copyright Act which Congress may wish to examine.”
The US Copyright Act entitles damages of anywhere from $750 to $30,000 per act of infringement (i.e. downloading a song without authorization), or up to $150,000 per act of infringement if the infringment is deemed to be willful (as was the case with Tenenbaum). Although an infringer’s profits or revenue lost by the copyright holder can be considered in determining the amount of statutory damages, there is no requirement that the amount of statutory damages be related to the amount of lost profits or revenue. In this case, there is no indication Tenenbaum earned any money from his music downloading and it is unclear how much revenue the affected music publishers lost from the 30 songs at issue.
The debate on the copyright statutory damage ranges comes down to the apparent unfairness of the size of certain verdicts versus the need to provide incentive to discourage the unauthorized use of copyrighted works and the common difficulty in calculating actual damages. Despite the Court of Appeal’s suggestion, don’t hold your breath waiting for Congress to do anything on this.
For a more personal perspective, here’s Joel Tenenbaum’s personal website on this case.
© 2011, LT Pacific Law Group LLP. All rights reserved.