Friday 18 May 2012, 12:52 | By

Tenenbaum lawyer requests Supreme Court hearing

Digital Legal Top Stories

Joel Tennenbaum

And so the Joel Tenenbaum story continues, as lawyers for the file-sharing student seek a US Supreme Court hearing in their ongoing bid to quash the mega-damages their client has been ordered to pay the American record companies for illegally accessing a few tracks via Kazaa back in 2004.

But first, the customary recap. Joel Tenenbaum. Student. Does some naughty file-sharing of unlicensed content. Sued by Recording Industry Association Of America. Chooses not to settle out of court. Goes to court. Bullish legal rep Charles Nesson presents pretty lacklustre defence. Tenenbaum found guilty of copyright infringement. Ordered to pay $675,000 in damages. Can’t pay, won’t pay. Judge cuts damages to $67,500 on constitutional grounds. Appeals court says if damages to be cut different legal process (called ‘remittitur’) required, reinstates $675,000 damages.

Nesson has since been pursuing various routes in a bid to have the damages his client has to pay cut back to something more realistic. He continues to argue that a $675,000 damages bill is unconstitutionally high, while adding that, in his opinion, the judge hearing the case – Nancy Gertner – was in fact right to cut the damages figure down to size based on constitutional arguments, even though technically another process for reviewing damages should have been used first. Nesson argues that the labels will continue to appeal any ruling that doesn’t go in their favour, meaning eventually the constitution element would have been up for consideration, and by going there first Gertner was simply saving his client from the hassle of unnecessary legal wranglings.

In his submission to the Supreme Court, Nesson argues that the record industry’s subsequently axed “litigation assault” on small time file-sharers was “procedurally unfair and profoundly unethical”. According to Ars Technica, he adds that the Recording Industry Association Of America sought 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, [so] that they will somehow reverse the tide of the digital future”.

On the requirement or Gertner to initially review Tenenbaum’s damages payment using the process of remittitur, he continues: “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”.

It’s thought the Supreme Court will confirm any day know whether or not it will review the Tenenbaum case.

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