SCOTUS Punts, Illegal Downloader on Hook for $675K Jury Award

Published May 30, 2012

The U.S. Supreme Court has declined to review the case of a Boston University student who was ordered to pay $675,000 for illegally downloading 30 songs. The Court declined to hear Joel Tenenbaum’s appeal on May 21, which allows the decision rendered last year by the U.S. Court of Appeals First Circuit Court in Boston to stand.

Tenenbaum downloaded the music as a teenager, and had hoped to challenge the constitutionality of a 2009 jury award which could have been as high as $4.5 million or as low as $22,500.

The Electronic Frontier Foundation, a nonprofit based in San Francisco that defends consumer rights in the digital world, filed a brief on behalf of Tenenbaum at the appellate level. 

“Statutory damages awards desperately need constitutional review. However, the Supreme Court’s decision not to review the case at this juncture was not entirely surprising given the procedural posture, and we are hopeful that the Court will have another opportunity,” said EFF Intellectual Property Director Corynne McSherry.

‘Come As You Are’
“I have to remind myself what I’m being charged with,” wrote Tenenbaum in a July 2009 essay in The Guardian. “Investment fraud? Robbing a casino? A cyber-attack against the federal government? No. I shared music. And refused to cave.”

Tenenbaum’s parents received a letter from Sony BMG, Warner Bros. Records, Atlantic Records, Arista Records, and UMG Recordings in 2005. The letter claimed their son was guilty of copyright infringement, and they were given a phone number to call in order to negotiate a settlement. According to Tenenbaum, the operator they spoke with requested a $3,000 settlement. Tenenbaum wrote that he sent a $500 money order that was returned.

“In August 2007,” wrote Tenenbaum, “I came home from work to find a stack of papers, maybe 50 pages thick, sitting at the door to my apartment. That’s when I found out what it was like to have possibly the most talented copyright lawyers in the business, bankrolled by multibillion-dollar corporations, throwing everything they had at someone who wanted to share ‘Come As You Are’ with other Nirvana fans.

From $5,250 to $675,000
Tenenbaum subsequently offered $5,250 to settle the case, but the RIAA countered with a $10,500 demand. The case went to trial in July 2009, and the jury awarded the plaintiffs a $675,000 award.

In July 2010, U.S. District Court Judge Nancy Gertner in Boston reduced the fine to $67,500, 10 percent of the original award, because she determined the statutory damages violated due process and were therefore unconstitutional. Both parties appealed the decision, and the First Circuit Court of Boston vacated Judge Gertner’s order and reinstated the original $675,000 fine.

‘Fractions of Jury Award’
The RIAA has filed about 18,000 lawsuits against persons suspected to be illegally downloading music. However, only Tenenbaum’s and one other case have gone to trial.
“We’re pleased with the Supreme Court’s decision,” RIAA spokesperson Cara Duckworth Weiblinger told InfoTech & Telecom News.

Weiblinger said RIAA actually caught Tenenbaum uploading thousands of music files to millions of anonymous strangers via various peer-to-peer (p2p) sharing networks. “We chose to sue him on just 30 of those files for the sake of efficiency, since including more files would greatly prolong the trial,” she said.

Weiblinger says Tenenbaum was offered a $5,000 settlement at the beginning of the litigation process, which he rejected. “He has routinely rejected every offer we have made, which have been at fractions of the jury award,” Weiblinger said.

Urban Legend
Tenenbaum’s pro bono legal representation was provided by Harvard Law School Professor Charles Nesson. When asked what message the Supreme Court sends the music industry and individuals who illegally download music off of the Internet by declining to hear Tenenbaum’s case, Nesson responded “Copyright rules!” in an email.

“He has chosen to undergo this litigation process because he is being represented for free,” Weiblinger said. She says Tenenbaum has since proposed the RIAA pay him to settle for damages he says RIAA has inflicted on him and his family.

The RIAA holds there is no longer any excuse to download illegally off p2p networks, no matter the reason for downloads, “especially in today’s marketplace, where you have a wide variety of convenient, affordable, and even free licensed services that provide you all the music you want,” Weiblinger said.

‘Justice Will Prevail’
Nonetheless, EFF’s McSherry says, “It seems absurd that a person can be required to pay hundreds of thousand of dollars in these circumstances,”

Weiblinger, however, says the RIAA’s opinion is that a “jury of his own peers saw and heard about his extensive illegal downloading habits. While they were instructed to make a decision on damages awards from the 30 music files, there is little doubt they had his egregious behavior in mind when they rendered an award of $675,000,” Weiblinger said.

Nesson said Tenenbaum can now return to the District Court and seek a reduction in the fine from the presiding judge. He says his advice to Tenenbaum now that the Supreme Court has declined to hear his case is, “Hang in there. Have faith that justice will prevail.”

Alyssa Carducci ([email protected]) writes from Tampa, Florida.

Internet Info

“How It Feels To Be Sued for $4.5m,” Joel Tenenbaum, The Guardian, July 27, 2009:

“Sony BMG Music Entertainment Group et. al. v. Tenenbaum,” U.S. District Judge Sandra Lynch, United States Court of Appeals for the First Circuit, September 16, 2011: