Another judge deflates music piracy damages

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For illegally sharing 30 songs over the Internet, Joel Tenenbaum shouldn’t have to pay $675,000, a federal judge decided.

Instead, U.S. District Court Judge Nancy Gertner said Tenenbaum should only pay $67,500, or $2,250 per song. Overriding a jury decision rendered a year ago, Gertner ruled that the maximum penalty sought by the Recording Industry Association of America is unconstitutional.

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Another judge deflates music piracy damages

Gertner’s decision echoes that of U.S. District Court Judge Michael Davis, who said last January that a jury’s $1.9 million guilty verdict against Jammie Thomas-Rasset was “simply shocking.” Davis lowered the damages to $2,250 per song, setting a precedent for Gertner to follow.

But there is a difference in this case, as Ars Technica points out. Davis used remittitur in the Thomas-Rasset case, which is basically a ruling of the judge’s discretion. The problem with this approach is that if the plaintiff doesn’t agree, it can force an entirely new trial. That’s exactly what happened in the Thomas-Rasset case — neither party was interested in $2,250 per song, and a new trial is set for October — so Gertner instead ruled on constitutional grounds.

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Still, the Tenenbaum case is far from over. The RIAA has already stated that it’s not pleased with the decision, and plans to challenge it. The music industry trade group says Gertner “erroneously dismisses the profound economic and artistic harm caused when hundreds of songs are illegally distributed for free to millions of strangers on file-sharing networks.”

It’s not clear what’ll happen next, but my guess is the case will go to the United States court of appeals. At issue will be whether the law’s maximum statutory damages of $150,000 for willful copyright infringement, or for that matter the lesser penalties imposed on Tenenbaum, are constitutionally unfair for individual file sharers. As Ars says, it seems Gertner and Davis are pushing for a precedent that the damages are excessive. For better or worse, I think it’s about time a higher court decides.

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