Joel Tenenbaum, one of the first two file-sharers who took their fight with the RIAA to court has taken his case all the way up to the Supreme court. While his guilt is not legally in question, the amount he owes in damages certainly is.
On August 1st, 2009, we reported that Joel Tenenbaum was fined $675,000 for sharing 30 works. While the question of innocence or guilt has been settled long ago, the question of whether or not the fine was unconstitutionally high has been a question that remained unanswered even to this day.
Now, three years after the initial verdict, it appears the question of what is and isn’t an unconstitutional fine is being brought to the Supreme court. Ars Technica reports:
Tenenbaum’s lawyer, well-known Harvard Law professor Charles Nesson, wants the Supremes to understand that the industry’s “litigation assault” on people like Tenenbaum is “procedurally unfair and profoundly unethical.” Such damage awards, Nesson continues, seek to:
punish [Tenenbaum] beyond any rational measure of the damage he conceivably caused, not for the purpose of recovering compensation for actual damage caused by him, nor for the primary purpose of deterring him from further copyright infringement, but for the ulterior purpose of creating an urban legend so frightening to children using the Internet, and so frightening for parents and teachers of students using the Internet, that they will somehow reverse the tide of the digital future.
Nesson complains that the requirement to conduct remittitur first simply helps those with enough money to see a lawsuit through to the end. “The deployment of remittitur as a means of fending off constitutional issues empowers the copyright-holding corporations to subject any individual who is seeking to protest the unconstitutionality of their settlement methods to years and then further years of endless litigation and repeated trials,” he wrote to the Supreme Court.
The Supreme court has not made a decision on whether or not to hear the case.
What I’ve been saying for quite some time now is that what may seem like a suitable fine for one party will almost definitely seem completely appalling to the other party. The question of what is a suitable fine will always be an arbitrary figure. There’s no real math involved outside of some multiplication to say, “this song being shared caused this amount of damage which should work out to be about this much that should be fined.” This has the kind of logic seen on Deal or No Deal where it’s simply a matter of picking numbers and hoping it’s the correct one. In some ways, the court may as well have taken several thousand numbers, wrote them down on confetti-like paper, threw them all in a drum, spun the drum around and randomly drew a fine for each song. It makes about as much logical sense. I, for one, hope the Supreme court agrees to hear this and finds some sort of solution to break what otherwise seems like some sort of judicial feedback loop.
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