# Judge reduces file-sharing damages award by 90 percent. **URL:** \ **Category:** Great Debates\ **Created:** [July 11, 2010, 7:32am UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283 "2010-07-11T07:32:02Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [July 11, 2010, 7:32am UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/1 "2010-07-11T07:32:02Z")
About a year ago, **Bricker** started a [thread](http://boards.straightdope.com/sdmb/showthread.php?t=526795) about the case of Joel Tenenbaum, a Boston University student ordered to pay $675,000 in damages to the RIAA for sharing 30 songs. In that thread, **Richard Parker** offered the following: > [@Another P2P music sharing verdict - $675,000](https://boards.straightdope.com/t/another-p2p-music-sharing-verdict-675-000/505175/12): > > Even granting that the current IP system is just and worth vigorously defending instead of reforming, it doesn’t follow that it makes sense to randomly hold individuals liable for exorbitant amounts. $150,000 per song just seems ridiculous on its face. I’m not even sure it is constitutional, as it is surely thousands of times higher than the actual loss experienced by the company. And perhaps more importantly, it seems to be ineffective and reducing the problem. Well, it appears that Judge Nancy Gertner of the United states District Court in Boston agrees. On Friday, she reduced the damages award by 90 percent, ordering Tenenbaum to pay the RIAA $67,500. In making her ruling, Judge Gertner said: > [@](#): > > This copyright case raises the question of whether the Constitution’s Due Process Clause > is violated by a jury’s award of $675,000 in statutory damages against an individual who reaped > no pecuniary reward from his infringement and whose individual infringing acts caused the > plaintiffs minimal harm. I hold that it is. The judge noted that she had the option of avoiding the constitutional issue by the process of remittitur, whereby she could have reduced the award as “grossly excessive, inordinate, shocking to the conscience of the court, or so high that it would be a denial of justice to permit it to stand.” The problem, she noted, was that remittitur requires the assent of the plaintiff, and the RIAA seemed unlikely to go for it. > [@](#): > > The plaintiffs in this case, however, made it abundantly clear that they were, to put it > mildly, going for broke. They stated in open court that they likely would not accept a remitted > award. And at a retrial on the issue of damages, I would again be presented with the very > constitutional issues that the remittitur procedure was designed to avoid. I am thus obliged to > deal with Tenenbaum’s constitutional challenge. A key aspect of her decision to reduce the verdict, it seems, is based on prior federal court rulings regarding punitive damages awarded against companies in other lawsuits: > [@](#): > > For many years, businesses complained that punitive damages imposed by juries were out > of control, were unpredictable, and imposed crippling financial costs on companies. In a number > of cases, the federal courts have sided with these businesses, ruling that excessive punitive > damages awards violated the companies’ right to due process of law. These decisions have > underscored the fact that the Constitution protects not only criminal defendants from the > imposition of “cruel and unusual punishments,” U.S. Const. amend. VIII, but also civil > defendants facing arbitrarily high punitive awards. > > \ > > This award is far greater than necessary to serve the government’s > legitimate interests in compensating copyright owners and deterring infringement. In fact, it > bears no meaningful relationship to these objectives. To borrow Chief Judge Michael J. Davis’ > characterization of a smaller statutory damages award in an analogous file-sharing case, the award > here is simply “unprecedented and oppressive.” Capitol Records Inc. v. Thomas, 579 F. Supp. 2d > 1210, 1228 (D. Minn. 2008). It cannot withstand scrutiny under the Due Process Clause. > > \ > > Reducing the jury’s $675,000 award, however, also sends another no less important > message: The Due Process Clause does not merely protect large corporations, like BMW and > State Farm, from grossly excessive punitive awards. It also protects ordinary people like Joel > Tenenbaum. The judge notes that she’s not making this ruling because she thinks Tenenbaum did nothing wrong, or because filesharing is OK. In her conclusion, she says: > [@](#): > > The jury’s $675,000 award is wholly out of proportion with the government’s legitimate > interests in compensating the plaintiffs and deterring unlawful file-sharing. No plausible > rationale can be crafted to support the award. It cannot withstand scrutiny under the Due Process > Clause. > > The fact that I reduce this award, however, obviously does not mean that Tenenbaum’s > actions are condoned or that wholesale file-sharing in comparable circumstances is lawful. I > have determined that Tenenbaum’s conduct was not “fair use” and that it infringed the plaintiffs’ > copyrights. Furthermore, the jury’s award, even as reduced, is unquestionably severe and is > more than adequate to satisfy the statutory purposes and the plaintiffs’ interests. > > I GRANT Tenenbaum’s Motion for a New Trial or Remittitur (document #26) insofar as > it seeks a reduction in the jury’s award on the grounds that it is so grossly excessive as to violate > the Constitution. IDENY the balance of Tenenbaum’s motion for the reasons stated in this > opinion. I will amend the judgment in this case to reduce the jury’s award to $2,250 for each of > the thirty infringed works. I’m sure the board’s lawyers and other constitutional experts will weigh in on the legal niceties that elude a layman like me, but on its face this seem like an eminently reasonable judgment to me. All quotes taken directly from the decision, which you can read in full [here](http://www.scribd.com/doc/34125455/Order-on-motion-for-new-trial-remittitur-in-Joel-Tenenbaum-case) ---
**Author:** ![Otara](https://avatars.discourse-cdn.com/v4/letter/o/a88e4f/32.png) [@Otara](https://boards.straightdope.com/u/Otara)\ **Post date:** [July 11, 2010, 8:39am UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/2 "2010-07-11T08:39:15Z")
‘Thirty songs’ doesnt really describe the potential scale of the issue, given each song may have been copied 10000 times or more. Lack of profit doesnt work for me given it basically cost nothing to do either - vandalism or graffiti doesnt make you money either, but can still cost a business a ton of money. I cant figure out a solution personally. I dont want to see people bankrupted, but I dont like giving pictures to people and seeing them thinking of them as free to give to the world once I do that either. Otara ---
**Author:** ![ivan\_astikov](https://avatars.discourse-cdn.com/v4/letter/i/58f4c7/32.png) [@ivan\_astikov](https://boards.straightdope.com/u/ivan_astikov)\ **Post date:** [July 11, 2010, 9:07am UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/3 "2010-07-11T09:07:52Z")
Get used to it. It’s the New World, a New Game, the playing fields are being levelled, and new rules are being made. You greedy artists and your greedier agents can’t continue making money of the same piece of “work”, so adapt or die. ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [July 11, 2010, 9:15am UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/4 "2010-07-11T09:15:22Z")
> [@ivan\_astikov](#): > > Get used to it. It’s the New World, a New Game, the playing fields are being levelled, and new rules are being made. You greedy artists and your greedier agents can’t continue making money of the same piece of “work”, so adapt or die. This isn’t about the artists; they seldom if ever see a dime of the money awarded in cases like this. It goes to the RIAA. ---
**Author:** ![Otara](https://avatars.discourse-cdn.com/v4/letter/o/a88e4f/32.png) [@Otara](https://boards.straightdope.com/u/Otara)\ **Post date:** [July 11, 2010, 9:22am UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/5 "2010-07-11T09:22:57Z")
I have got used to it, it just means I generally dont give people my pictures because I know they cant be trusted. Ive never charged for a picture yet, I just want control over my own work and the reality is people wont respect that so I control it by only giving it to people I trust. Then I get to watch people getting annoyed that I dont give them something for free that ‘cost me nothing’ while they’re wanting those underwater pictures precisely because they were taken on a camera that cost them 20 times as much as theirs by someone who actually knows how to take a picture underwater. Level playing field, yeah right. Otara ---
**Author:** ![ivan\_astikov](https://avatars.discourse-cdn.com/v4/letter/i/58f4c7/32.png) [@ivan\_astikov](https://boards.straightdope.com/u/ivan_astikov)\ **Post date:** [July 11, 2010, 9:56am UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/6 "2010-07-11T09:56:47Z")
> [@Der\_Trihs](#): > > This isn’t about the artists; they seldom if ever see a dime of the money awarded in cases like this. It goes to the RIAA. I thought they were artists in making money off the labour of others? ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [July 11, 2010, 12:14pm UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/7 "2010-07-11T12:14:18Z")
I still see the reduced fine as way too much, perhaps 2 more 90% reductions and were in the ballpark, plus the issue if the right to reproduce music should exist at all, or if so the right to transfer that right to a company such as the RIAA, or is music a gift to humanity, ‘property’ of none of us, ‘possession’ to all of us, and that restricting music is the crime. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [July 11, 2010, 12:28pm UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/8 "2010-07-11T12:28:14Z")
I obviously find the general principle reasonable, since I expressed the same concern in the previous thread. But I wonder what the trial actually determined with respect to damages. (I couldn’t pull up the opinion.) I suspect that they did not determine the precise economic damages experienced by the Plaintiff, and instead the question for the jury was to pick some amount in the statutory range. If so, I would think this later decision vulnerable to remand, at least, for the court to figure out actual damages, since you cannot assess the reasonableness of the award without knowing the actual damages. That said, Nancy Gertner is a very bright judge, so I expect the opinion to be pretty solid. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [July 11, 2010, 12:29pm UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/9 "2010-07-11T12:29:04Z")
I agree with **kanicbird** and **Der Trihs**. And I’m making this “me too” post because I’m so amused by the idea that I can say that sentence honestly and accurately in a GD thread. 🙂 ---
**Author:** ![cosmosdan](https://avatars.discourse-cdn.com/v4/letter/c/a6a055/32.png) [@cosmosdan](https://boards.straightdope.com/u/cosmosdan)\ **Post date:** [July 11, 2010, 1:38pm UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/10 "2010-07-11T13:38:18Z")
As a musician let me add my 2 cents worth. I have a friend, an independent artist who put a lot of time and exspense into writing songs with a celtic theme and recording a series of CDs. She put a lot of effort into promoting and setting up her web site as well as getting into others that sold music. For 2 or 5 years she did fairly well selling her CDs. Then she noticed a serious down turn in sales. The mindset of free music and making copies of someone’s work and passing it on permeates our culture. Her comment to me was, “It’s hard to compete with copies of youself” It’s easy to think of the big record companies as being greedy coorperate giants but there are rteal creative artists being affected by the culture of free music. I think it’s great that the music market has changed and the listener/consumer gets more choices. You can by single songs you like rather than pay for a CD that only has two good songs on it. Still, the concept of copying other people’s work so you don’t have to pay for it is not a good one. Look at it another way. We’ve lost tens of thousands of jobs because China can make cheaper copies of what we used to make. People have always tried to clone popular and sought after products and companies file suits if the clone is too similar. In the case of music it’s not just a close clone. It’s you. It’s the song you wrote and you singing it being given away for free. Think of whatever your job is or the jobs of people you know. If something they created and sold as part of their livelyhood was being given away for free and they were being hurt would it be okay with you? ---
**Author:** ![cosmosdan](https://avatars.discourse-cdn.com/v4/letter/c/a6a055/32.png) [@cosmosdan](https://boards.straightdope.com/u/cosmosdan)\ **Post date:** [July 11, 2010, 1:50pm UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/11 "2010-07-11T13:50:27Z")
> [@kanicbird](#): > > I still see the reduced fine as way too much, perhaps 2 more 90% reductions and were in the ballpark, plus the issue if the right to reproduce music should exist at all, or if so the right to transfer that right to a company such as the RIAA, or is music a gift to humanity, ‘property’ of none of us, ‘possession’ to all of us, and that restricting music is the crime. From a musicians point of view music is not and should not be a gift to humanity in the “it’s free” sense. Apply that mindset to any creative endevor and see where it takes you. Every persons talents and efforts are a gift to humanity in some sense but that doesn’t mean they should not get paid for thier gift, whatever it is. Human beings should get the basic respect and consideration of being paid for their efforts and their applied talents amd the years of effort it took to get them from a music lesson to a CD or an original song. It’s only because technology has made copying easy that we now justify it. Since most of our peers do it and it’s widespread, can it really be so wrong? The anwer is yes. Even if everybody is doing it, it’s still wrong. ---
**Author:** ![Gustav](https://avatars.discourse-cdn.com/v4/letter/g/919ad9/32.png) [@Gustav](https://boards.straightdope.com/u/Gustav)\ **Post date:** [July 11, 2010, 1:53pm UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/12 "2010-07-11T13:53:17Z")
If everyone is doing it then everyone should pay for it, rather than string up some random college student. ---
**Author:** ![cosmosdan](https://avatars.discourse-cdn.com/v4/letter/c/a6a055/32.png) [@cosmosdan](https://boards.straightdope.com/u/cosmosdan)\ **Post date:** [July 11, 2010, 1:58pm UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/13 "2010-07-11T13:58:38Z")
and per the specifics of the OP . I can see a reduced fine. It’s not just making a copy and giving it to a freind. If you place files on a peer share system then you’re offering 1000s of free copies to anybody who wants it. It’s very hard to determine damages in a case like that but I think a fine has to hurt and in this area it has to hurt enough to scare others. ---
**Author:** ![cosmosdan](https://avatars.discourse-cdn.com/v4/letter/c/a6a055/32.png) [@cosmosdan](https://boards.straightdope.com/u/cosmosdan)\ **Post date:** [July 11, 2010, 2:02pm UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/14 "2010-07-11T14:02:01Z")
> [@Gustav](#): > > If everyone is doing it then everyone should pay for it, rather than string up some random college student. Nice idea but no ralisitic way to enforce it. The law has to be applied to specific crimes and criminals. Most of us found out when we were young that stupid mistakes can cost you. If there’s anyway to track exactly how many times each song was downloaded perhaps they could calculate an amount per song. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [July 11, 2010, 2:11pm UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/15 "2010-07-11T14:11:00Z")
> [@Otara](#): > > ‘Thirty songs’ doesn’t really describe the potential scale of the issue, given each song may have been copied 10000 times or more. _But not by this defendant_. If a million people steal a single cent apiece from you, and you catch one of them, is that single person obligated to pay you $10,000? If so, doesn’t that mean that you’ve been payed back in full and everyone else should get away free and clear? ---
**Author:** ![Gustav](https://avatars.discourse-cdn.com/v4/letter/g/919ad9/32.png) [@Gustav](https://boards.straightdope.com/u/Gustav)\ **Post date:** [July 11, 2010, 2:17pm UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/16 "2010-07-11T14:17:48Z")
> [@cosmosdan](#): > > Nice idea but no ralisitic way to enforce it. The law has to be applied to specific crimes and criminals. Most of us found out when we were young that stupid mistakes can cost you. > > If there’s anyway to track exactly how many times each song was downloaded perhaps they could calculate an amount per song. But when your enitre argument is based around fairness and how your friend _should_ be able to make money as an artist, but because of the current state of society she can’t, you can’t just turn around the next second and say “well, that’s totally unfair to the student, but _shrug_ that’s how it is, what can ya do?”. If he has to suck it up and deal with it then so should they. ---
**Author:** ![cosmosdan](https://avatars.discourse-cdn.com/v4/letter/c/a6a055/32.png) [@cosmosdan](https://boards.straightdope.com/u/cosmosdan)\ **Post date:** [July 11, 2010, 2:49pm UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/17 "2010-07-11T14:49:05Z")
> [@Czarcasm](#): > > _But not by this defendant_. If a million people steal a single cent apiece from you, and you catch one of them, is that single person obligated to pay you $10,000? > If so, doesn’t that mean that you’ve been payed back in full and everyone else should get away free and clear? Nope, What if you offered a million of someone elses money to other people for free. What would your crime be then? What would the damages be? Admittedly I haven’t read the details of the case, but offereing songs to a network of a thousand or more people is different than passing a few copies to your friends and should be treated differently because the potential damages are much higher. ---
**Author:** ![cosmosdan](https://avatars.discourse-cdn.com/v4/letter/c/a6a055/32.png) [@cosmosdan](https://boards.straightdope.com/u/cosmosdan)\ **Post date:** [July 11, 2010, 2:55pm UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/18 "2010-07-11T14:55:42Z")
> [@Gustav](#): > > But when your enitre argument is based around fairness and how your friend _should_ be able to make money as an artist, but because of the current state of society she can’t, you can’t just turn around the next second and say “well, that’s totally unfair to the student, but _shrug_ that’s how it is, what can ya do?”. If he has to suck it up and deal with it then so should they. I didn’t say it was totally unfair to the student. It’s in the details and the issue of what you can realsitically prove and prosecute. So, “should” and “what’s fair” are nice topics of discussion but that’s all. Downloading a song is not the same as offereing lots of songs to lots of people and should not be treated the same. ---
**Author:** ![cosmosdan](https://avatars.discourse-cdn.com/v4/letter/c/a6a055/32.png) [@cosmosdan](https://boards.straightdope.com/u/cosmosdan)\ **Post date:** [July 11, 2010, 3:05pm UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/19 "2010-07-11T15:05:28Z")
I just read a little of the case itself from the earlier thread. Evidently his crime was downloading the songs for personal use. In that case I have to question whether the fine is just for the crime or just designed to scare the beejeezus out of others. IMHO people rinning a peer to peer site that facillitates copyright infringement are far more guilty from a damages pov than the individual. Then again , they were prosecuting for 30 songs they could prosecute for while he admitted to downloading hundreds. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [July 11, 2010, 3:44pm UTC](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283/20 "2010-07-11T15:44:55Z")
> [@Der\_Trihs](#): > > This isn’t about the artists; they seldom if ever see a dime of the money awarded in cases like this. It goes to the RIAA. It doesn’t go to the RIAA. They’re just a trade group. It goes to the various members of the RIAA. [Next page](https://boards.straightdope.com/t/judge-reduces-file-sharing-damages-award-by-90-percent/546283.md?page=2)