Nesson, Students File Appeal in File-Sharing Case

BY JOEY SEILER

During winter break, while most students were trying to forget about exams and the impending start of J-Term, several students’ work appeared in a brief filed with the First Circuit appealing the damages award in a file-sharing case.

Prof. Charles Nesson ’63 and a team of Harvard Law students represent Joel Tenenbaum in a lawsuit filed against him by the Recording Industry of America for copyright infringement for illegally sharing music files. After losing at the trial level, Tenenbaum was on the hook for $675,000 in damages, or $22,500 each for the 30 songs he was accused of sharing over Kazaa. District Court Judge Nancy Gertner reduced the damages to $67,500, but Tenenbaum and his team believe the award is still too high.

Copyright law provides for statutory damages between $750 and $30,000 per infringed work and up to $150,000 per work for “willful” infringement. Nesson and five students (Jason Harrow ‘11, Phillip Hill ‘13, Andrew Breidenbach ‘11, Eric Fletcher ‘11, and Nathan Lovejoy ‘13) assembled this brief to raise three arguments about the damages on appeal: extraordinary damages assessed against people not making money from the infringement is “absurdly extreme,” said Nesson; Congress never intended for this regime to be applied to normal people as opposed to commercial infringers; and, most importantly to Nesson, the jury’s role in assessing these damages is flawed.

“When Congress created these statutory damages, they explicitly imagined that it would be judges who had the wisdom to assess them,” said Nesson. When the Supreme Court ruled that juries had to be involved, though, it “brought a constitutional requirement that the jury not be left completely at sea.”

Instead, Tenenbaum’s jury was instructed that infringement occurred and given a form to fill out with one range of damages for innocent infringement and another for willful infringement. There was no context given, said Nesson, that  would encourage jurors to consider different types of infringement, like commercial acts, or legislative intent.

“I think the jury is very much affected by the top number they’re given on the scale,” said Nesson. “It’s a very odd thing because the jury is instructed they can return a judgment that the judge herself found would be unconstitutional,” referring to Judge Gertner’s reduction of the damages by a factor of ten.

That system may be changing. Two years ago, said Nesson, it was almost impossible to drum up sympathy for Tenenbaum. Now that the focus of the case is on damages, more people find the law unreasonable, he said. With a similar case proceeding in Minnesota against Jammie Rasset-Thomas, represented pro bono by Kiwi Camara ’04, there may soon be a split in circuits regarding statutory damages. That, says Nesson, could be all that’s needed. 

In Nov. 2010, the Supreme Court denied certiorari for Harper v. Maverick Recording Company, a similar case against a 16-year-old file sharer. She was unable to raise an innocent infringer defense, as 17 U. S. C. §402(d) essentially precludes innocence when notice is given on “the published phonorecord.” As Justice Alito said at the time, arguing to grant certiorari, that law may be a bit dated. 

“He recognizes in his opinion that the way the law is being applied, a law created for the analog world, doesn’t make sense in the digital world,” said Nesson. “I think that’s a real straw in the wind.”

Alito recognized the lack of a circuit split and left, in his dissent, the door open for another opportunity. By the time a Supreme Court appeal rolls around, though, new students may need to play a role in Tenenbaum’s case. 

Harrow, who Nesson describes as the head of the team, has worked on the case since his second year. As part of the winning Ames Moot Court team this past year, Harrow had already logged quite a few hours in mock trials and writing briefs. Nesson hopes to include him in the oral argument before the First Circuit as well, which offers a different perspective.

“It’s hard to admit this after all the time my teammates and I put into moot court, but Ames is not real. Our ‘client’ in the Finals, Kermit McBride, never really went to jail. But Joel is a real person, and right now he has a judgment against him that says that he has to pay $67,500 to some of the biggest companies on the planet for sharing 30 songs,” said Harrow. “That means that every word we say to the court has to further the goal of reversing that — not of  making us look good, like in Ames.”

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