Tenenbaum Statutory Damages Award Held Unconstitutional

In August 2007, the Recording Industry Association of America (“RIAA”) sued Joel Tenenbaum (then a college student) for copyright infringement for downloading 31 songs and making them publicly available to others over the Internet. The Tenenbaum case was the second file-sharing case to go to trial (the first was Capitol Records v. Jammie Thomas-Rasset).  In July 2009, a jury found that Tenenbaum not only infringed the plaintiff’s copyrights, but also that he did so wilfully, and awarded the RIAA $675,000 in statutory damages.

Statutory damages range from a minimum of $750 per infringed work up to a maximum of $30,000. The damages ceiling rises to $150,000 per infringed work if the plaintiff can demonstrate the defendant acted willfully. The jury found that Tenenbaum “wilfully violated the law,” but instead of popping him for the maximum award of $150,000 per song, the jury came in with a verdict of $22,500 per song–less than the maximum it could have awarded without a finding of wilful conduct.

Tenenbaum filed a motion for new trial or remittitur (reduction in damages) in which he challenged the constitutionality of the damages award, claiming that the award was so excessive that it violates the Due Process Clause of the Constitution. Judge Gertner agreed, adopting almost entirely the arguments urged by Tenebaum’s lawyers, and reduced the award by 90% to $67,500, or $2,250 per song infringed. In reaching her decision, Judge Gertner chose to apply the punitive damages analysis framework of BMW of North America v. Gore in which the Court held that punitives are unconstitutional if they are “grossly excessive.”