Joel Tenenbaum, the Boston University student whose file-sharing proclivities got him sued by the major music labels, owes them $675,000. Again. Tenenbaum's trial, the second such file-sharing trial in the country, ended with a $675,000 jury verdict against him. Judge Nancy Gertner cut the award to $67,500, following the same path blazed by the first judge to hear such a case, but with one crucial difference: rather than rely on "remittitur," in which a judge can simply lower the monetary amount of a jury award, Gertner went right to the Constitution. The award was so astronomical, she said, that it violated the US Constitution and had to be reduced. ($67,500 was as high as Judge Gertner said was permissible.) The recording industry appealed this decision; early Friday evening, they won a round. The First Circuit Court of Appeals agreed (PDF) that Judge Gertner had jumped to the Constitutional question too quickly. Though the appellate judges applauded her handling of the trial, they wrote that Gertner "should first have considered the non-constitutional issue of remittitur, which may have obviated any constitutional due process issue and attendant issues. Had the court ordered remittitur of a particular amount, Sony would have then had a choice. It could have accepted the reduced award. Or, it could have rejected the remittitur, in which case a new trial would have ensued." Only if remittitur failed to resolve the case would Gertner be justified in moving on to the larger issue of unconstitutionality. Remittitur did fail the first file-sharing trial target, Jammie Thomas-Rasset in Minnesota. After three full trials and two judicial overrides, Judge Michael Davis finally reached the constitutional question and declared the award against Thomas-Rasset unacceptable. That decision has now been appealed. We might well see the same thing with the Tenenbaum lawsuit, but for now, the original $675,000 judgment has been reinstated. The Appeals Court hinted that, though its decision was procedurally proper, it didn't support such harsh penalties against Tenenbaum. "We comment that this case raises concerns about application of the Copyright Act which Congress may wish to examine," wrote the judges. Read the comments on this post
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