First Circuit Affirms $675,000 Award Against Joel Tenenbaum: Gore Test Does Not Apply To Statutory Damages Under Copyright Act

This week, the First Circuit affirmed a $675,0000 statutory damages award against college student Joel Tenenbaum for copyright infringement. The Court held that the damages award, based on Tenenbaum's illegal downloading and distribution of 30 copyrighted songs, was not excessive or a violation of due process.

The Original Jury Award

As we have previously discussed, Tenenbaum had been downloading and distributing (via peer-to-peer networks) thousands of copyrighted songs, despite warnings from his parents, his college and copyright owners. In 2007, a group of recording companies brought a copyright infringement suit and sought statutory damages with respect to a representative sample of about thirty songs. Tenenbaum initially lied and blamed his sisters, but eventually admitted to illegal file sharing. A jury found that Tenenbaum's infringement was willful, and awarded the plaintiffs $675,0000 in statutory damages, or $22,500 per song — about 15% of the maximum statutory damages that could have been awarded under 17 U.S.C. § 504(c).

Judge Gertner Finds the Award Unconstitutional

When Tenenbaum moved for a reduction of the award based on the principles of remittitur and due process, Judge Nancy Gertner reduced the award ten-fold, to $67,500. Judge Gertner found that the severity of the award was a violation of due process under the Supreme Court's ruling in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). The Gore case, which addressed punitive damages, held in part that such damages must be somewhat proportionate to the harm suffered by the plaintiff.

The First Circuit's First Reversal

In 2011, the record companies appealed the reduction of the award and the First Circuit reversed and remanded. According to the First Circuit, Judge Gertner should have avoided the constitutional due process issue because she could have ruled based on non-constitutional remittitur principles. Additionally, the First Circuit doubted whether the Gore test applied to statutory damages under the Copyright Act (as opposed to punitive damages), and suggested that the district court reevaluate the award based on a different test set forth in St. Louis, I.M. & S Ry. Co. v. Williams, 251 U.S. 63 (1919). The Williams test, which is more plaintiff-friendly than Gore, provides that an award of statutory damages violates due process only "where the penalty prescribed...