The recording industry sued thousands of individual file-sharers in an unprecedented campaign of lawsuits that began in 2003; but only two o…

The recording industry sued thousands of individual file-sharers in an unprecedented campaign of lawsuits that began in 2003; but only two of those cases ever went to trial. Both resulted in large damage awards against the accused downloader. Now, one of the cases is on appeal, and defendant Joel Tenenbaum’s lawyers are arguing that the $675,000 damage award that the jury slapped him with violates his constitutional rights. During oral arguments held yesterday, a panel of judges appeared skeptical towards Tenenbaum’s claims-although they had sharp questions for the RIAA lawyers on the other side, as well.

In Joel Tenenbaum’s original trial in 2009, the only thing for the jury to determine was damages, since Tenenbaum had admitted to sharing the 30 songs at issue in the case. The jury stuck him with a $675,000 damages bill, or $22,500 per song. But the judge then said that was “unconstitutionally excessive” and cut it down to $67,500-a 90 percent reduction. The RIAA appealed, likely not wanting to be stuck with a precedent where a judge can cut a jury’s copyright damage award so sharply.

During yesterday’s arguments, a lawyer from the Justice Department spoke in support of the RIAA’s position that the high damage awards were fair, and were in line with what Congress intended. But the judges seemed skeptical of that position. One judge on the appeals panel asked asked if those damage awards were truly meant to apply to non-commercial copying of the sort Tenenbaum did-and if so, why were there so few non-commercial copying cases that actually went to trial? (Those would be the Tenenbaum case and the Jammie Thomas case in Minnesota.)

“The Copyright Act reflects Congress’ unmistakable judgment that copyright infringement is a serious problem,” said Paul Clement, the lawyer representing the RIAA. “Non-commercial copying was never excluded. This [file-sharing] technology turns home copiers into home distributors.”

But the judges seemed just as skeptical-if not moreso-towards Tenenbaum’s lawyer, Havard Law Prof. Charles Nesson. He tried to argue that Congress never meant the high statutory damage awards to apply to non-commercial copiers like his client. “It is now 2011,” noted one of the judges on the panel. “Congress is surely aware of this [RIAA] litigation. And they have taken no steps to amend the law… to exclude non-commercial users.”

Overall, the way that Tenenbaum’s legal team, led by Prof. Nesson and his law students, have handled this litigation has been criticized from many sides-even from some commenters who consistently oppose the RIAA’s position, who have questioned why Nesson took this case to trial at all. At times, Nesson’s argument in favor of Tenenbaum seemed to boil down to not much more than a “kids will be kids” kind of plea. It’s a bit ironic that it’s only now, after such a major loss, that Nesson and Tenenbaum have a shot at scoring a win on this damage issue. But after yesterday’s arguments, before judges that were sometimes sympathetic, even that still looks like a longshot.

»  Sound recording of the argument at the U.S. Court of Appeals for the 1st Circuit [MP3]
»  Briefs in this case are available via Ray Beckerman’s blog.

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