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Tenenbaum: Are Copyright Law's Statutory Damages Unconstitutional for NonCommercial File Sharers?
Monday, March 16 2009 @ 06:17 AM EDT

Professor Charles Nesson of Harvard Law School, the attorney for Joel Tenenbaum, has filed a motion to dismiss (here's the memorandum of law [PDF] in support of the motion) on behalf of his client, the defendant in SONY BMG Music v Tenenbaum. I thought you would find it interesting because he argues that statutory damages for noncommercial defendants under copyright law are unconstitutional, unreasonable, and way out of proportion to any alleged injury to the plaintiffs here, which at most is, he argues, de minimis:
Punitive damages for infringement authorized by the Copyright Act, 17 U.S.C. 504(c), represent an unconstitutional abrogation of due process when enforced against a noncommercial defendant. The damages prescribed by the statute bear no reasonable relation to actual harms resulting from Joel Tenenbaum's individual alleged infringement.
I have no idea if the motion has a prayer of being granted, actually, particularly given the increasingly tense mood [PDF] in this litigation, but it's surely a valid question to ask. The US Justice Department has asked for more time [PDF] to decide if it should file a brief in support the plaintiff's statutory damages theory. Before you say blech, stop and consider what is on the table here. Tenenbaum is claiming that the US Copyright Act is unconstitutional. The implications are huge, and the DOJ wanted time to read Tenenbaum's motion to dismiss first, so as to respond meaningfully to it, or not, depending on its analysis. It will let the court know its decision on the 23rd.

I thought I'd give you some resources, so you can follow the arguments being made in this motion. And I have done the memorandum of law as text for you.

Tenenbaum references Capitol Records, Inc. v. Thomas:

At least one court facing a similar case has echoed Williams, suggesting that, given the noncommercial nature of individual file-sharing, the Copyright Act's statutory damages provision violates due process as applied to such defendants. Capitol Records, Inc. v. Thomas, 579 F.Supp.2d, at 1227. In Thomas, the only individual file-sharing case ever to reach damages award, the jury awarded $222,000 in statutory damages against defendant Jammie Thomas for downloading 24 songs and placing them into her KaZaA "share folder." In granting the defendant's request for a new trial, Chief Judge Michael Davis described the damages as "wholly disproportionate to the damages" suffered by Plaintiffs. Id. at 1227 ("[Defendant's] status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive."). The court relied in part on Plaintiffs' failure to provide any support for a damage award of that magnitude against a noncommercial, individual user. Id. ("All of [Plaintiffs'] cited cases involve corporate or business defendants and seek to deter future illegal commercial conduct. The parties point to no case in which large statutory damages were applied to a party who did not infringe in search of commercial gain.").
The motion argues that it doesn't make sense to treat a noncommercial individual the way you treat a willful commercial operator acting for profit. It makes the following main points:
  • If the law is interpreted as the plaintiffs, Sony et al do in the complaint, then Congress exceeded its authority by delegating to private industry the prosecution of punitive actions against *noncommercial* individuals when it passed 17 U.S.C. 504(c). It's an "unconstitutional violation of due process."
  • If 17 U.S.C. 504(c) applies, it violates due process because the damages threatening the defendant are "wholly disproportionate to his alleged offense" and "so severe and oppressive" that they are "obviously unreasonable," citing St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 678 (1919). The injury to plaintiffs by Tenenbaum's alleged conduct, a noncommercial person, is "at most de minimis" and yet he is threatened with "the maximum punitive damages recoverable from a willful commercial infringer" -- $1,050,000 in damages.

Here's the conclusion:

Because the Plaintiffs have failed to allege and cannot prove that Joel acted for commercial gain, their claim against him for statutory damages for willful infringement should be dismissed for failure to state a claim on which relief can be granted.
So that is the argument, and here are some resources so you can understand what is being argued. First, here's the section of copyright law being referenced, the remedies section. As you see, the plaintiff, if successful, gets to choose between actual damages suffered and proven, or statutory damages:
504. Remedies for infringement: Damages and profits

(a)

In general. Except as otherwise provided by this title, an infringer of copyright is liable for either--

(1)

the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or

(2)

statutory damages, as provided by subsection (c).

(b)

Actual damages and profits. The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

(c)

Statutory damages.

(1)

Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $ 750 or more than $ 30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

(2)

In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118 infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work....

Can you see any reason why the plaintiffs would choose actual damages instead of statutory in a case like this one? If your actual loss is all of $7, which is approximately what it would have cost Tenenbaum to buy the seven songs at issue on iTunes, and your statutory damages are a million or so without you having to prove any specific damage sustained, what might you choose, if you were the plaintiff?

But that places a kid like Joel in the odd position of facing more than a million dollars in statutory damages, if found guilty, for a $7 offense.

So the issue being raised here is, since the law doesn't distinguish between commercial players and high school kids file-sharing with their friends in a noncommercial setting, is it constitutional? Or does it raise Fourth Amendment due process concerns? Is the penalty so extreme that it's ridiculous?

What's a Fourth Amendment due process concern? Here's the Fourth Amendment to the US Constitution's wording:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
And here's the Fourteenth Amendment, and here's the part about due process:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
That's clear enough, no? It's saying no one, not even the government, and not commercial entities either, can just barge into your home and take all your stuff because they claim you owe them. There are rules, even if you do owe them, legal rules that must be followed and that are supposed to be "reasonable". There has to be a legal process, according to the amendments, and the punishment should fit the crime, so to speak, and the point this motion is making is that if you infringe a handful of songs, the penalty shouldn't be in the million-dollar range, because that arguably is an unreasonable seizure, since it's grabbing all Tenenbaum's money he might hope to earn for at least a large segment of his life, if not all of his life.

Unless he's Bernie Madoff.

Or an executive at some sleazy hedge fund, if you catch my drift.

You know, the guys Jon Stewart just accused of burning the entire house down using our dollars and then walking away rich themselves. Tenenbaum is alleged to have downloaded seven songs, since we're talking about proportionality.

I can't help but think about Prohibition and visualize the RIAA as Carrie Nation, going from bar to bar with her axe to enforce the law herself. Prohibition failed miserably, of course, because too many folks disagreed with the law and just wouldn't obey it, which ended up actually damaging respect for the rule of law. Wikipedia quotes from a letter, written in 1932 by John D. Rockefeller, Jr.:

When Prohibition was introduced, I hoped that it would be widely supported by public opinion and the day would soon come when the evil effects of alcohol would be recognized. I have slowly and reluctantly come to believe that this has not been the result. Instead, drinking has generally increased; the speakeasy has replaced the saloon; a vast army of lawbreakers has appeared; many of our best citizens have openly ignored Prohibition; respect for the law has been greatly lessened; and crime has increased to a level never seen before.
Not to mock the concerns of copyright holders, since I am one, but it is something to think about seriously, proportionality. A million dollars' damages for a $7 infringement offends one's sense of simple justice, and that undermines respect for the law, I'm afraid.

If you are curious and would like to read more about the Fourth Amendment and searches and seizures, particularly in a digital age, here's an article [PDF] in the Harvard Law Review from 2005 by Orin Kerr on that very topic, how the Fourth Amendment might apply to computer searches. It will give you the flavor.

The motion cites a case from way back when, 1919, St. Louis, I M & S R. Co. v. Williams. It was about a railroad caught overcharging two customers 66 cents each. If you read the decision, you will observe that apparently railroads were considered very likely to overcharge customers, and so there was a law passed in Arkansas setting the penalty for overcharging customers "for every such offense" at "not less than fifty dollars nor more than three hundred dollars and costs of suit, including a reasonable attorney's fee."

The judgment in St Louis v. Williams against the railroad was for seventy-five dollars and costs of suit, including an attorney's fee of twenty-five dollars. I know. Imagine how times have changed, if you could litigate and your attorney's fee was only $25.

The railroad appealed, and the question before the court was this: was that penalty unconstitutionally high? Remember that we're marking on a 1919 curve, when you could hire a lawyer for $25. The court decided it wasn't, in part because of the need for deterrence, railroad folks back then having the reputation for being more than willing to overcharge customers if they thought they could get away with it. I think it is certainly possible the court in this case could rule that the penalty here isn't too high either, that it was Congress's precise intent to string up copyright infringers upside down by their heels until everything in their pockets falls out, to act as a deterrent to file sharers. But that isn't why Tenenbaum is citing the case.

Here's why: Although the court ruled that the facts in this case didn't reach due process concerns, in discussing it the court set forth a standard for what would:

The grounds upon which the provision is said to contravene due process of law are, first, that the penalty is 'so severe as to deprive the carrier of the right to resort to the courts to test the validity' of the rate prescribed, and, second, that the penalty is 'arbitrary and unreasonable, and not proportionate to the actual damages sustained.'
And that's what Nesson is arguing on Tenenbaum's behalf and others similarly situated, that the penalty is so high and disproportional that it's 'arbitrary and unreasonable and not proportionate to the actual damages sustained.' Most defendants won't dare to even try to prove their innocence, the motion argues, because defendants realize that if they lose, they lose so overwhelmingly and have to pay such high damages, it's safer to just pay a settlement than to fight:
The statutory scheme that Plaintiffs wield against Joel, and have already wielded against thousands of others like him who were forced to settle without challenging the Plaintiffs in court, is premised on the assumption that Congress has empowered the recording industry to prosecute noncommercial individuals with actions so oppressive and punitive that all but Joel and Jammie Thomas have been forced to settle out of court. See Capitol Records, Inc. v. Thomas, 579 F.Supp.2d 1210, 1227 (D.Minn. 2008). At the trial of our counterclaim we will offer evidence of just how oppressive the recording industry's litigation campaign has been. Thousands of individuals like Joel have been threatened with expensive, time-consuming, frightening, and potentially bankrupting legal process. By vesting in Plaintiffs and their industry association the authority to bring complaints against noncommercial individuals for millions of dollars in statutory damages, Congress would have delegated to a private industry the authority to abuse the law.
How can that be lawful under the Constitution, the motion asks? It could be argued, and no doubt the plaintiffs will, that the value of deterrence is that it protects the copyright holder from death by a thousand small cuts, and that it's needed to protect their rights. Nesson uses an analogy, when discussing the question of deterrence, that raises the issue of whether it is appropriate for the copyright holders to get a law passed in their favor, setting forth incredibly high damages, and then be authorized to enforce the law, without any accountability, while pocketing the damages from defendants too overwhelmed and frightened to assert their rights in any court:
One might imagine a statute that, in the name of deterrence, provides for a $750 fine for each mile per hour by which a driver exceeds the speed limit, with the fine escalating to $150,000 per mile per hour over the limit if the driver knew she was speeding. One might imagine further that enforcement of the fines is put in the hands of a private, self-interested police force -- one that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject "settlements" in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Plaintiffs and the RIAA exercise precisely this kind of self-interested enforcement power when they prosecute noncommercial defendants for violations of the Copyright Act, and simultaneously reap the private benefits from such litigation.
So now you know what is happening in this litigation and what is at stake.

Interestingly, Boies Schiller represents Courtroom View Network, the entity offering to stream the court hearing, and an associate, Dean Kawamoto, dug up an interesting tidbit. If you recall, there was an issue raised in the US Court of Appeals for the First Circuit's Order [PDF] regarding the conference and whether or not it could be streamed, in which the court asked the parties to brief the legal effect of a 1996 Resolution, in which the Judicial Council for the First Circuit said radio and television coverage in courtrooms should be banned. The Boies Schiller associate found out it looks like the Resolution was never actually adopted the way amendments to the rules are supposed to be. You can read about it in Exhibit C [PDF] to Tenenbaum's motion for reconsideration [PDF]. Exhibit C says it's a declaration presented in support of CVN's supplemental brief addressing the court's question about the legal effect of the 1996 resolution. Here's what Kawamoto found out by calling the Circuit's Executive's office for the First Circuit:

3.... Ms. Goldberg informed me that she could not find any record of the Resolution having been distributed to the public, or having been subject to public notice and comment.

4. Ms. Goldberg informed me that FCJC "amendments" to the local rules of the First Circuit district courts were required by statute to undergo a formal public notice and comment process, which involved the dissemination of a "Public Notice" and posting of the amendment on the Court's web page. According to Ms. Goldberg, the Resolution did not constitute an "amendment" and therefore was not subject to any statutory notice and comment requirements.

That's legalese for it ain't necessarily so. And this associate's initiative has altered the landscape significantly. You see, the RIAA opposes streaming the video, asserts the lower court erred in ordering it, and they still base their argument [PDF] in part on the 1996 resolution policy, as far as I can make out. Tenenbaum asserts [PDF] a constitutional right to an open hearing.

What makes this all so complex is that it's a civil case, not criminal. But it feels more like a criminal offense being alleged and "prosecuted". Of course, that's the elephant in the room -- can the Congress deputize private companies, so to speak, to "prosecute" alleged copyright infringers in civil courts, since the defendant loses certain protections he or she otherwise would have if the matter were handled by prosecutors in a criminal action? Is there a right to an open hearing in a civil matter?

This case is getting really interesting, no matter what side you find yourself on. It's also getting more and more complicated, but I hope I've got it explained correctly. The hearing at the appellate court in Boston, MA, will be on April 8 [PDF], not the 7th, as originally scheduled [PDF]. It starts at 9 AM. CVN may get to participate in oral argument. It would be nice to see Boies Schiller at work in a case where I don't have to hold my nose. As I read the order, audio may or may not be made available. The court reserves the right to even close the hearing from the public, so if you were thinking of going, be sure to check with the court instead of just showing up.

Update: Ray Beckerman in a comment on this story points to the sidebar on his site, Recording Industry vs. The People, where some other cases are listed that he feels ought to have been included.

Here, then, is the Tenenbaum Memorandum of Law in support of his motion to dismiss, as text:

********************

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

________________________________

CAPITOL RECORDS, INC., et al.,

Plaintiffs,

v.

NOOR ALAUJAN,

Defendant.

_______________________________

Civ. Act. No.
03-CV-11661-NG
(LEAD DOCKET NUMBER)

_______________________________

SONY BMG MUSIC ENTERTAINMENT, et al.,

Plaintiffs,

v.

JOEL TENENBAUM,

Defendant.

_______________________________

Civ. Act. No.
07-CV-11446-NG
(ORIGINAL DOCKET NUMBER)

_______________________________

MEMORANDUM IN SUPPORT OF DEFENDANT JOEL TENENBAUM'S MOTION TO
DISMISS

Punitive damages for infringement authorized by the Copyright Act, 17 U.S.C. 504(c), represent an unconstitutional abrogation of due process when enforced against a noncommercial defendant. The damages prescribed by the statute bear no reasonable relation to actual harms resulting from Joel Tenenbaum's individual alleged infringement.

I. IF 17 U.S.C. 504(c) IS INTERPRETED AS IN THE PLAINTIFFS' COMPLAINT, THEN CONGRESS HAS EXCEEDED ITS AUTHORITY BY DELEGATING TO PRIVATE INDUSTRY THE PROSECUTION OF PUNITIVE ACTIONS AGAINST NONCOMMERCIAL INDIVIDUALS.

(a) The Plaintiffs' interpretation of section 504 makes the statute an unconstitutional violation of due process.

The statutory scheme that Plaintiffs wield against Joel, and have already wielded against thousands of others like him who were forced to settle without challenging the Plaintiffs in court, is premised on the assumption that Congress has empowered the recording industry to prosecute noncommercial individuals with actions so oppressive and punitive that all but Joel and Jammie Thomas have been forced to settle out of court. See Capitol Records, Inc. v. Thomas, 579 F.Supp.2d 1210, 1227 (D.Minn. 2008). At the trial of our counterclaim we will offer evidence of just how oppressive the recording industry's litigation campaign has been. Thousands of individuals like Joel have been threatened with expensive, time-consuming, frightening, and potentially bankrupting legal process. By vesting in Plaintiffs and their industry association the authority to bring complaints against noncommercial individuals for millions of dollars in statutory damages, Congress would have delegated to a private industry the authority to abuse the

2

law.

Deterrent objectives, if they are to be achieved at all, should be undertaken most carefully by public entities acting under public authority and subject to due process in courts of law. By contrast, this statute, if it delegates executive prosecutorial power to private enforcers, is "legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse." Carter v. Carter Coal, 298 U.S. 238, 311 (1936). Such a delegation is particularly offensive when private enforcers are able to extract private benefits through its selective enforcement of the law: "For an interested party to make decisions utilizing governmental authority is anathema to due process." Suss v. American Soc'y for the Prevention of Cruelty to Animals, 823 F. Supp. 181, 188 (S.D.N.Y. 1993) (surveying instances of state and federal delegation of coercive governmental authority to private parties).

One might imagine a statute that, in the name of deterrence, provides for a $750 fine for each mile per hour by which a driver exceeds the speed limit, with the fine escalating to $150,000 per mile per hour over the limit if the driver knew she was speeding. One might imagine further that enforcement of

3

the fines is put in the hands of a private, self-interested police force -- one that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject "settlements" in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Plaintiffs and the RIAA exercise precisely this kind of self- interested enforcement power when they prosecute noncommercial defendants for violations of the Copyright Act, and simultaneously reap the private benefits from such litigation. See Bennett v. Cottingham, 290 F.Supp. 759, 763 (N.D. Ala. 1968), aff'd, 393 U.S. 317 (1969), and Callahan v. Wallace, 466 F.2d 59 (5th Cir. 1972) (litigation by black motorists against ticketing system in which the enforcing justice of the peace was paid for guilty verdicts).

By threatening noncommercial defendants like Joel with the maximum statutory damages for willful infringement, the recording industry impedes his Constitutional guarantee to due process of law. St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, at 63 (due process of law contravened when penalty is so severe as to deprive the defendant of the right to resort to the courts to test validity (dicta)); see also Ex parte Young, 209 U.S 123, 148 (1908) ("to impose upon a party interested the burden of obtaining a judicial decision of such a question (no

4

prior hearing having ever been given) only upon the condition that if unsuccessful he must suffer imprisonment and pay fines as provided in these acts, is, in effect, to close up all approaches to the courts, and thus prevent any hearing upon the question whether the rates as provided by the acts are not too low, and therefore invalid."); Life & Casualty Ins. Co. of Tenn. v. McCray, 291 U.S. 566, 57475 (1934) (stating that if an unfair penalty that can be obtained in court is too high, a party will choose not to litigate because the "price of error may be so heavy as to erect an unfair barrier against the endeavor of an honest litigant to obtain the judgment of a court. In that event, the Constitution intervenes and keeps the court room open"). Faced with astronomical statutory damages, noncommercial defendants have no realistic option to defend themselves and so are forced into out-of-court settlements that can't be refused. David Kravets, File Sharing Lawsuits at a Crossroads, After 5 years of RIAA Litigation, Wired.com, http://blog.wired.com/27bstroke6/2008/ 09/proving-file-sh.html (last visited March 9, 2009).

17 U.S.C. 504(c), as interpreted and implemented by the recording industry, excludes the federal judiciary from overseeing and resolving the vast majority of copyright disputes involving noncommercial litigants, who settle out of court for

5

fear of such high damages. Instead, it establishes the Plaintiffs and the RIAA as judge, jury, and executioner in such cases. This de facto limitation on access to courts constitutes a violation of the due process rights of all those who have been sued by the recording industry in its litigation campaign against noncommercial users, and reason itself to dismiss the claim of willful infringement against Joel.

(b) To avoid constitutional infirmity Section 504(c) should be interpreted so as not apply statutory damages for willful infringement to noncommercial individuals.

Rather than needlessly ascribe to Congress an intent to authorize abuse of the process of law and of the federal courts by authorizing draconian punishment of individual noncommercial persons, this court should interpret 17 U.S.C. 504(c) so as not to apply to noncommercial users.

Interpreting 17 U.S.C 504(c) to apply to noncommercial individuals such as Joel and the thousands like him creates multiple constitutional infirmities. Congress should not be taken to have exceeded the limits of substantive due process by having mandated grossly excessive statutory damage awards against noncommercial individuals. Congress should not be taken to have delegated punitive prosecutorial power to a private industry, enabling it to exercise sole prosecutorial discretion

6

to inflict punitive process and sanction.

Instead, the copyright statutes should be interpreted to define three kinds of infringers: (1) the unaware infringer -- an infringer who was "not aware and had no reason to believe that his or her acts constituted an infringement of copyright"; for this infringer the statute specifies minimum statutory damages of $200; (2) the merely aware infringer -- an infringer who is aware but not willful in seeking commercial gain; for this infringer the statute specifies minimum statutory damages of $750; punitive dmages against noncommercial users in this category up to a maximum of $30,000 are as vulnerable to attack for gross excessiveness as are the even greater maximum damages in category three; (3) the willful infringer -- an infringer who intentionally and knowingly infringes for commercial gain; for this infringer the statute authorizes maximum damages per infringement of $150,000.

II. IF 17 U.S.C. 504(c) APPLIES, THEN IT FURTHER VIOLATES DUE PROCESS BECAUSE THE DAMAGES WITH WHICH IT THREATENS THE DEFENDANT ARE WHOLLY DISPROPORTIONATE TO HIS ALLEGED OFFENSE.

Statutory damages violate the constitutional guarantee of due process if they are "so severe and oppressive as to be wholly disproportioned to the offense and obviously

7

unreasonable." See St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 678 (1919); Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 277 (1989). Courts applying Williams have focused on whether statutory damages are reasonable in light of the harm caused. See, e.g., United States v. Citrin, 972 F.2d 1044, 1051 (9th Cir. 1992) (applying Williams but finding that the statutory damages at issue were not unreasonable). The damages prescribed by 17 U.S.C. 504(c) here are "wholly disproportionate" to the offense with which Joel is charged.

The statutory damages provided in 17 U.S.C. 504(c) violate due process under Williams by threatening a noncommercial person like Joel, who caused at most de minimis injury to the Plaintiffs, with the maximum punitive damages recoverable from a willful commercial infringer. Under any reading of Williams, it is "wholly disproportionate" to threaten Joel with $1,050,000 in damages.

At least one court facing a similar case has echoed Williams, suggesting that, given the noncommercial nature of individual file-sharing, the Copyright Act's statutory damages provision violates due process as applied to such defendants. Capitol Records, Inc. v. Thomas, 579 F.Supp.2d, at 1227. In Thomas, the only individual file-sharing case ever to reach a

8

damages award, the jury awarded $222,000 in statutory damages against defendant Jammie Thomas for downloading 24 songs and placing them into her KaZaA "share folder." In granting the defendant's request for a new trial, Chief Judge Michael Davis described the damages as "wholly disproportionate to the damages" suffered by Plaintiffs. Id. at 1227 ("[Defendant's] status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive."). The court relied in part on Plaintiffs' failure to provide any support for a damage award of that magnitude against a noncommercial, individual user. Id. ("All of [Plaintiffs'] cited cases involve corporate or business defendants and seek to deter future illegal commercial conduct. The parties point to no case in which large statutory damages were applied to a party who did not infringe in search of commercial gain.").

The Supreme Court has particularized the Williams standard in the context of excessive punitive damage jury awards. See, e.g., BMW of North America, Inc. v. Gore, 517 U.S. 559, 574575 (1996); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003) (applying Gore test and finding punitive damages of 145 times the actual damages violated due process). It

9

remains unclear whether courts will apply the particularized Gore analysis to constraining congressional power to create punitive statutory damages. See Zomba Enterprises, Inc. v. Panorama Records, Inc., 491 F.3d 574, 587 (6th Cir. 2007) ("The Supreme Court has not indicated whether Gore and Campbell apply to awards of statutory damages") (italics in the original) (citing cases that have suggested Gore could apply to statutory damages). This Court need not resolve this uncertainty. As applied to noncommercial defendants such as Jammie Thomas and Joel, the statutory damage authorization is grossly excessive under the due process articulations of both Williams and Gore.

CONCLUSION

Because the Plaintiffs have failed to allege and cannot prove that Joel acted for commercial gain, their claim against him for statutory damages for willful infringement should be dismissed for failure to state a claim on which relief can be granted.

Dated: March 9, 2009

JOEL TENENBAUM.

By his attorneys,

/s/Charles R. Nesson
Charles R. Nesson 1, BBO# 369320
Harvard Law School
[address]


1 Assisted by Raymond J. Bilderbeck, Isaac Meister, and Stephanie R. Weiner

10

[email, phone, fax]
Attorney for Defendant

/s/Jennifer L. Dawson
Jennifer L. Dawson
Student Advocate
Harvard Law School
[address,email]
Attorney for Defendant

/s/James E. Richardson
James E. Richardson
Student Advocate
Harvard Law School
Attorney for Defendant

/s/Debra B. Rosenbaum
Debra B. Rosenbaum
Student Advocate
Harvard Law School
Attorney for Defendant

/s/Matthew C. Sanchez
Matthew C. Sanchez
Student Advocate
Harvard Law School
Attorney for Defendant

/s/Anna V. Volftsun
Anna V. Volftsun
Student Advocate
Harvard Law School
Attorney for Defendant

11

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that on March 9, 2009, I caused a copy of the foregoing DEFENDANT JOEL TENENBAUM'S MOTION TO DISMISS to be served upon the Plaintiffs via the Electronic Case Filing (ECF) system; first-class mail, postage pre-paid; and electronic mail, at the following addresses:

Claire E. Newton
Robinson & Cole LLP
[address, phone, fax, email]

Eve G. Burton
Holme Roberts & Owen LLP
[address, phone, fax, email]

John R. Bauer
Robinson & Cole LLP
[address, phone, fax, email]

Laurie Rust
Holme Roberts & Owen LLP
[address, phone, fax, email]

Nancy M. Cremins
Robinson & Cole LLP
[address, phone, fax, email]

Timothy M. Reynolds
Holme Roberts & Owen LLP
[address, phone, fax, email]

Daniel J. Cloherty
Dwyer & Collora LLP
[address, phone, fax, email]

/s/Charles R. Nesson
Charles R. Nesson
Attorney for Defendant

12


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