Supreme Court refuses to hear music downloading appeal

The Supreme Court on Monday refused to hear the appeal of a former graduate student who was sued by the recording industry on charges of illegally downloading music, letting stand a $675,000 judgment against him for violation of copyright laws.

It was the first time the high court was asked to weigh in on whether the use of peer-to-peer networks constitutes a violation of copyright laws, and whether the application of those laws in deciding civil penalties is appropriate.


But the trials for the defendant, Joel Tenenbaum, are far from over. A US District Court judge could still alter the $675,000 award. And Tenenbaum believes the high court is destined to have to examine whether the copyright laws - and the tough punishments under them - are constitutional in the age of Internet technology.

“The tension between the antiquated copyright law and modern technology is not going to go away any time soon,’’ said Tenenbaum, 28, who earned his graduate degree in physics from Boston University in the years that the case has languished in the courts.

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“They can’t put this off forever,’’ he said. “It’s just postponing the inevitable.’’

At issue is whether copyright laws drafted more than a decade ago account for the way the Internet is used today. Tenenbaum has argued that he could not be held under typical copyright standards, and thus their penalties, for downloading music because he was not doing anything for monetary gain.

The Recording Industry Association of America, which represented several companies in suing Tenenbaum, said only in a statement, “We’re pleased with this decision.’’


Tenenbaum, who is from Providence and is now living in Boston, was one of the first people to challenge the lawsuits that the association had filed against people who downloaded music from Internet sharing websites. He had been offered a $5,000 settlement.

A jury in 2009 found him responsible for 30 copyright infringements.

Following a scale that allowed for penalties between $750 and $150,000 for each infringement, the jury decided on the $675,000 judgment, after the association had argued that Tenenbaum was warned repeatedly of the illegality of the downloading, and that he had thousands of music files available on peer-to-peer networks, such as Napster.

US District Judge Nancy A. Gertner, now retired, found that the judgment was excessive, and thus unconstitutional, and she reduced the award to $67,500. She skipped what is known as a common law remittitur process, in which she would set her own judgment with the agreement of the parties or let a second jury consider an appropriate penalty, saying at the time that the parties would not agree, and that a second jury verdict would be the same.

But the US Court of Appeals for the First Circuit said Gertner erred by skipping the remittitur process, and sent the case back to the district court level.

The appeals court did not decide on Tenenbaum’s assertion that the use of copyright laws in the case is unconstitutional, saying the proper process of considering a common law remittitur would have to be followed before that question arises.

Tenenbaum, who had also appealed the $67,500 judgment Gertner set, saying it would force him into bankruptcy, directly asked the US Supreme Court to decide the case. The court refused without comment.

‘It’s a mess within the federal judicial system.’

Charles Nesson,  Defendant’s lawyer
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The case is now before US District Judge Rya Z. Zobel, who could decide whether to have a second jury consider liabilities or let the $675,000 judgment stand. Tenenbaum could then question whether the use of copyright laws in determining a penalty is unconstitutional.

Tenenbaum’s case is similar to a lawsuit against a Minnesota woman, Jammie Thomas-Rasset.

In that case, juries have decided on multimillion-dollar judgments, and a federal court judge has used common law remittitur to send the case before a new jury. After three trials, however, the judge found a jury’s verdict unconstitutional.

The recording association has appealed that decision.

Tenenbaum’s lawyer, Charles Nesson, a Harvard University law professor and director of Harvard’s Berkman Center for Internet and Society, said Monday that the high court’s refusal to hear the case was disappointing, though not surprising.

He added, however, that the court is bound to take up the issue as similar cases continue to flood the court system. Other groups, such as the movie industry, the porn industry, and publishing groups, have begun filing lawsuits to try toreap the significant judgments that the recording industry has seen.

“It’s a mess within the federal judicial system, and they ought to take note of it,’’ Nesson said.

Milton J. Valencia can be reached at Follow him on Twitter @miltonvalencia.
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