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TABLE OF CONTENTS
TABLE OF AUTHORITIES...................................................................................iii
INTRODUCTION AND SUMMARY OFARGUMENT........................................1
ARGUMENT.............................................................................................................4
I. Tenenbaums Broad Attacks On Section 504(c) AreNeitherPreserved Nor Meritorious..............................................................................4
A. FeltnerDid Not Render Section 504(c)Inoperable..............................5
B. Section 504(c) Does Not Differentiate BetweenCommercial andNoncommercial Infringers..................................9
C. Section 504(c) Does Not Require Proof of Actual Damages.............18
II. The Jurys Award IsConstitutional...............................................................26
A. Remittitur Is Not a Viable Means ofConstitutionalAvoidance............................................................................................26
B. Constitutional Review is Governed by Williams, notGore................31
C. The Jurys Award Is Constitutional Under Williams..........................38
D. The Jurys Award Is Constitutional Under Gore................................44
III. The District Courts Jury Instructions Were AccurateAndAdequate........................................................................................................46
A. The Courts Instruction on the Statutory Range WasNotErroneous.............................................................................................47
B. Tenenbaum Was Not Entitled to an Instruction RegardingHarmCaused by or Flowing toNonparties.........................................51
C. Tenenbaum Was Not Entitled to an Instruction thatStatutoryDamages Must Bear a Reasonable Relationship toActualHarm....................................................................................................54
D. The Courts Instruction Correctly DefinedWillful.........................55
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CONCLUSION........................................................................................................57
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
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TABLE OF AUTHORITIES
Page(s)
CASES
A&M Records, Inc. v. Napster, Inc.,114 F. Supp. 2d 896 (N.D.Cal. 2000)..........................................................13,14
A&M Records, Inc. v. Napster, Inc.,239 F.3d 1004 (9th Cir.2001)................................................................12,13, 14
Accounting Outsourcing LLC v. Verizon Wireless Pers. Commcns,L.P.,329 F. Supp. 2d 789 (M.D. La.2004).................................................................35
Am. Geophysical Union v. Texaco, Inc.,
60 F.3d 913 (2d Cir. 1994).................................................................................13
Ashwander v. Tenn. Valley Auth.,297 U.S. 288(1936)..............................................................................................7
Bielunas v. F/V Misty Dawn, Inc.,621 F.3d 72 (1st Cir.2010).................................................................................27
Bigelow v. RKO Radio Pictures,327 U.S. 251(1946)......................................................................................25,45
Bly v. Banbury Books, Inc.,638 F. Supp. 983 (E.D. Pa.1986).......................................................................55
BMW of N. Am., Inc. v. Gore,517 U.S. 559(1996).....................................................................................passim
Brady v. Daly,175 U.S. 148(1899)............................................................................................22
Capitol Records Inc. v. Thomas-Rasset,
680 F. Supp. 2d 1045 (D. Minn.2010)...............................................................29
Columbia Pictures Television, Inc. v. Krypton Broad. ofBirmingham, Inc.,259 F.3d 1186 (9th Cir. 2001)..............................................................................6
Cooper Indus., Inc. v. Leatherman Tool Grp., Inc.,532 U.S. 424(2001)............................................................................................33
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Correia v. Feeney,620 F.3d 9 (1st Cir.2010).....................................................................................5
Curtis v. Loether,415 U.S. 189(1974)..............................................................................................6
Davis v. E. I. Du Pont de Nemours & Co.,249 F. Supp. 329(S.D.N.Y. 1966).....................................................................55
Daz-Fonseca v. Puerto Rico,451 F.3d 13 (1st Cir.2006).................................................................................49
Dimick v. Schiedt,293 U.S. 474(1935)..............................................................................................9
Douglas v. Cunningham,294 U.S. 207(1935)..........................................................................19,21, 22, 27
Exxon Shipping Co. v. Baker,554 U.S. 471(2008)............................................................................................37
F.W. Woolworth Co. v. Contemporary Arts,344 U.S. 228(1952)..........................................................................15,20, 21, 54
Feltner v. Columbia Pictures Television, Inc.,523 U.S. 340(1998).....................................................................................passim
Fitzgerald Publg Co. v. Baylor Publg Co.,807 F.2d 1110 (2d Cir.1986).............................................................................56
Forest Grove Sch. Dist. v. T.A.,129 S. Ct. 2484(2009)..........................................................................................8
Gray v. Genlyte Grp., Inc.,289 F.3d 128 (1st Cir.2002)...............................................................................52
Harris v. Emus Records Corp.,734 F.2d 1329 (9th Cir. 1984)............................................................................25
In re Aimster Copyright Litig.,334 F.3d 643 (7th Cir. 2003)........................................................................41,42
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In re Barboza,545 F.3d 702 (9th Cir. 2008)..............................................................................56
Kepner-Tregoe, Inc. v. Vroom,186 F.3d 283 (2d Cir. 1999)...............................................................................57
L.A. News Serv. v. Reuters Television Intl, Ltd.,149 F.3d 987(9th Cir. 1998)..............................................................................25
L.A. Westermann Co. v. Dispatch Printing Co.,249 U.S. 100(1919).....................................................................................passim
Lord Townshend v. Hughes,86 Eng. Rep. 994 (C.P. 1677)...............................................................................9
Lowrys Reports, Inc. v. Legg Mason, Inc.,302 F. Supp. 2d 455 (D.Md.2004)....................................................................35
Lyons Pship, L.P. v. Morris Costumes, Inc.,243 F.3d 789 (4thCir. 2001)..............................................................................56
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd.,545 U.S. 913(2005)............................................................................................41
Negron v. Caleb Brett U.S.A., Inc.,212 F.3d 666 (1st Cir.2000).........................................................................47,48
New Line Cinema Corp. v. Russ Berrie & Co.,161 F. Supp. 2d293 (S.D.N.Y. 2001)................................................................55
Oncale v. Sundowner Offshore Servs.,523 U.S. 75(1998)..............................................................................................14
Ortiz-Gonzalez v. Fonovisa,277 F.3d 59 (1st Cir.2002)...................................................................................5
Parker v. Gerrish,547 F.3d 1 (1st Cir.2008)...................................................................................25
Parker v. Time Warner Entmt Co., L.P.,331 F.3d 13 (2d Cir. 2003)...........................................................................36,37
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Penn. Dept of Corr. v. Yeskey,524 U.S. 206(1998)............................................................................................17
Philip Morris USA v. Williams,549 U.S. 346(2007)......................................................................................51,52
Plumley v. S. Container, Inc.,303 F.3d 364 (1st Cir.2002)...........................................................................5,10
RCA/Ariola Intl, Inc. v. Thomas & Grayston Co.,845 F.2d 773(8th Cir. 1988)..............................................................................57
Recording Indus. Assn of Am. v. Diamond Multimedia Sys.,Inc.,180 F.3d 1072 (9th Cir. 1999)............................................................................16
Rivera Castillo v. Autokirey, Inc.,379 F.3d 4 (1st Cir.2004).............................................................................49,52
Rodriguez de Quijas v. Shearson/Am. Express, Inc.,490 U.S. 477(1989)............................................................................................35
Romano v. U-Haul Intl,233 F.3d 655 (1st Cir.2000)...............................................................................36
Russello v. United States,464 U.S. 16(1983)..............................................................................................10
Sega Enters. Ltd. v. MAPHIA,857 F. Supp. 679 (N.D. Cal.1994).....................................................................13
Segrets, Inc. v. Gillman Knitwear Co.,207 F.3d 56 (1st Cir.2000)...................................................................................5
Sony Corp. v. Universal City Studios, Inc.,464 U.S. 417(1984)............................................................................................39
St. Louis, I. M. & S. Ry. Co. v. Williams,251 U.S. 63(1919).......................................................................................passim
Tull v. United States,481 U.S. 412(1987)..............................................................................................6
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Udemba v. Nicoli,237 F.3d 8 (1st Cir.2001).....................................................................................9
United States v. LaMacchia,871 F. Supp. 535 (D. Mass.1994)......................................................................11
United States v. Paramount Pictures, Inc.,334 U.S. 131(1948)............................................................................................41
United States v. Sampson,486 F.3d 13 (1st Cir.2007).................................................................................35
Venegas-Hernandez v. Peer,2004 WL 3686337 (D.P.R. May 19, 2004)........................................................55
Warner Bros. v. Dae Rim Trading, Inc.,677 F. Supp. 740 (S.D.N.Y.1988).....................................................................55
Webloyalty.com, Inc. v. Consumer Innovations, LLC,388 F. Supp.2d 435 (D. Del.2005)....................................................................55
Wildlife Express Corp. v. Carol Wright Sales, Inc.,18 F.3d 502(7th Cir. 1994)................................................................................56
Williams v. Philip Morris USA Inc.,176 P.3d 1255 (Or. 2008)...................................................................................52
Worldwide Church of God v. Phila. Church of God,227 F.3d 1110(9th Cir. 2000)............................................................................13
Yurman Studio v. Casteneda,2008 WL 4949775 (S.D.N.Y. Nov. 19,2008)....................................................55
Zomba Enters., Inc. v. Panorama Records, Inc.,491 F.3d 574 (6thCir. 2007)........................................................................35,56
STATUTES
17 U.S.C.101..................................................................................................11,12
17 U.S.C.107........................................................................................................13
17 U.S.C.402........................................................................................................56
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17 U.S.C.504.................................................................................................passim
17 U.S.C. 506............................................................................................10,11, 12
Act of May 31, 1790
1 Stat. 124....................................................................................................39,41
Audio Home Recording Act of 1992,Pub. L. No. 102-563, 106 Stat.4237..................................................................16
Copyright Act of 1909,35 Stat. 1075.................................................................................................20,21
Copyright Act of 1976,Pub. L. No. 94-553, 90 Stat. 2541......................................................................22
Digital Theft and Copyright Damages Improvement Act of 1999,Pub.L. No. 106-160, 113 Stat. 1774.........................................................7, 8,17
No Electronic Theft Act of 1997,Pub. L. No. 105-147, 111 Stat.2678..................................................................11
OTHER AUTHORITIES
Dept of Justice,Report of the Department of JusticesTask Forceon Intellectual Property,
http://www.cybercrime.gov/IPTaskForceReport.pdf.........................................41
Fed. R. Civ. P. 51...............................................................................................47,52
H.R. Rep. 92-487(1971)..........................................................................................15
H.R. Rep. No. 94-1476(1976)...........................................................................12,14
H.R. Rep. 105-339(1997)..................................................................................12,14
H.R. Rep. 106-216(1999)..............................................................................8,17, 42
4 Melville B. Nimmer & David Nimmer,Nimmer on Copyright14.04......................................................................25,57
Prohibiting Piracy of Sound Recordings:
Hearings on S. 646 and H.R. 6927 Before Subcomm. 3
of the H. Comm. on the Judiciary, 92d Cong. 4 (1971).....................................15
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S. Rep. 102-294(1992)............................................................................................16
Staff of H. Comm. on the Judiciary, 87th Cong., Copyright LawRevision:Report of the Register of Copyrights on theGeneralRevision of The U.S. Copyright Law(1961)............................11, 19, 23
U.S. Const. art. 1, 8.........................................................................................39,40
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INTRODUCTION AND SUMMARY OF ARGUMENT
In his opening brief, Tenenbaum asks this Court to do nothingless than
rewrite the Copyright Acts statutory damages provision anddisregard a Supreme
Court decision interpreting it. In Tenenbaums view, statutorydamages should be
available if at all only against commercial actors who infringewith the
specific intent of obtaining a direct profit from theirinfringement. Even then,
damages should not be awarded within the ranges Congress hasprovided, but
rather should be limited by whatever quantifiable proof ofprofit or injury a
copyright owner can provide, notwithstanding the extent to whichthe infringer
himself makes such proof impractical or even impossible toobtain. If that were
not enough, Tenenbaum also urges this Court to effectivelyoverturn the Supreme
Courts decision in Feltner v. Columbia Pictures Television,Inc., 523 U.S. 340
(1998). Tenenbaums hostility to the statute Congress actuallywrote and the role
of the jury under Feltneris palpable. However, Tenenbaumsarguments, which in
large part echo the district courts reasons for rejecting thejurys award, do not
provide any justification for deeming the jurys award within thestatutory damages
range unconstitutional or otherwise invalid.
Statutory damages remain available after Feltner, which did notinvalidate
17 U.S.C. 504(c), but rather held that a jury, not a judge, mustassess statutory
damages within the range Congress provided. As is plain from thetext of the
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statute, as well as the legislative history and multiple SupremeCourt cases, such
damages are available against any infringer, without regard towhether the
infringer acted for commercial gain, achieved a direct financialprofit, or caused
quantifiable injury to the copyright holder. Indeed, the raisondtre of statutory
damages is to provide an alternative to actual damages incontexts where they may
be difficult to prove or otherwise inadequate. In any event,Tenenbaums rampant
file-sharing with numerous unknown peer-to-peer network userswas
commercial as Congress and courts have defined that term, anddirectly caused
Plaintiffs real and substantial injury.
Tenenbaum also fails to show any constitutional infirmity in thejurys
award of statutory damages well within the range Congress hasauthorized. A
statutory damages award is governed by the standard set forth inSt. Louis, Iron
Mountain & Southern Railway Co. v. Williams, 251 U.S. 63(1919), the touchstone
of which is deference to the legislatures wide latitude ofdiscretion in
responding to public wrongs. Id. at 66. Tenenbaums attempt toreplace the
Williams standard with the punitive damages guideposts set forthinBMW of North
America, Inc. v. Gore, 517 U.S. 559 (1996), ignores the factthat those guideposts
are designed to compensate for the absence of the verylegislative judgment to
which Williams defers. Moreover, Tenenbaums focus on the awardsratio to
actual damages runs head-on into Williams itself, whichexpressly rejects the
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notion that statutory damages must be confined or proportionedto [a plaintiffs]
loss or damages. Williams, 251 U.S. at 66.
Applying the Williams standard, the jurys award should bereinstated.
Congresss judgment concerning the appropriate response tocopyright
infringement cannot be said to be so severe and oppressive as tobe wholly
disproportioned to the offense and obviously unreasonable. Id.at 67. Moreover,
although Williams makes clear that statutorily authorizeddamages can withstand
constitutional challenge even without regard to the harm causedby a particular
defendant, the jurys award here was surely an appropriateresponse to the
egregiousness of Tenenbaums actions and the substantial harmthey caused. By
his own admission, Tenenbaum infringed upon these and hundredsof other
copyrighted works, distributing them to countless peer-to-peernetwork users for
free, all the while knowing his actions constituted copyrightinfringement. He did
not stop even after Plaintiffs threatened and brought legalaction, but instead
reacted by repeatedly blaming friends and family for his ownactions. The
Copyright Acts damages provisions make crystal clear thatwillful infringement is
subject to greater damages, and Tenenbaums conduct was willfulin the extreme.
As Plaintiffs evidence at trial showed, this willfulinfringement caused them real
and substantial injury.
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Finally, Tenenbaums new trial arguments are for the most partunpreserved
and in any event are meritless. At bottom, Tenenbaums juryinstruction
challenges are just a repackaged attack on the competency of ajury to award
statutory damages, an argument conclusively rejected byFeltneras contrary to the
Seventh Amendment.
ARGUMENT
I. Tenenbaums Broad Attacks On Section 504(c) Are NeitherPreservedNor Meritorious.
Throughout its opinion striking down the damages award in thiscase, the
district court evinced an implicit hostility to the judgments ofCongress and the
Supreme Court, both with respect to the ability of a jury toassess statutory
damages for copyright infringement and with respect to the rangeof statutory
damages and the scope of infringing conduct. Tenenbaum now asksthis Court to
make that implicit hostility explicit, by rejecting the SupremeCourts holding in
Feltnerthat juries may assess statutory damages, as well asCongresss judgment
that statutory damages should be available regardless of whetherinfringement was
done with a commercial motive or caused readily quantifiabledamages.
Tenenbaums broad attacks on 504(c) aside from beingunpreserved
would require this Court to ignore the holdings of no fewer thanthree Supreme
Court cases and to override Congresss policy judgments in anarea uniquely
within its discretion. These attacks on 504(c) should berejected out of hand.
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A. Feltner Did Not Render Section 504(c) Inoperable.SinceFeltnerwas decided more than a decade ago, not a single courthas
suggested that statutory damages are no longer available forcopyright
infringement. To the contrary, courts including this Court haverepeatedly and
unanimously recognized that Feltnersimply mandated that a partymay demand a
jury determination of the amount of statutory damages to beawarded. Ortiz-
Gonzalez v. Fonovisa, 277 F.3d 59, 63 n.6 (1st Cir. 2002); seealsoSegrets, Inc. v.
Gillman Knitwear Co., 207 F.3d 56, 63 (1st Cir. 2000) (applyingFeltner
retroactively to entitle defendant to jury trial on statutorydamages).
Perhaps in recognition of that reality, Tenenbaum has neverbefore argued
that 504(c) did not survive Feltneror required subsequentcongressional action to
be revived. To the contrary, he requested and stipulated to ajury trial. See
See Also
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Stipulation to Jury Trial (Consol. Doc. No. 674).1 His facialattack on the statutes
continued existence is therefore forfeited. See Plumley v. S.Container, Inc., 303
F.3d 364, 372 n.7 (1st Cir. 2002) (arguments raised for firsttime on appeal are
forfeited); see also Correia v. Feeney, 620 F.3d 9, 15 (1st Cir.2010) (court will
consider forfeited argument only if alleged error was obviousand clear under
current law). It is also meritless.
1 Citations in this brief are as follows: Add. denotes citationsto the Addendum toPlaintiffs Opening Brief; Appx. denotes citationsto the Joint Appendix; Doc. No.denotes citations to docket entriesin 1:07-cv-111446; and Consol. Doc. No. denotescitations to docketentries in 1:03-cv-11661.
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The Court in Feltnerdid not hold the statute unconstitutional.It instead held
that a plaintiff may still seek statutory damages, but that if aparty so demands, a
jury must determine the actual amount of statutory damages under504(c).
Feltner, 523 U.S. at 355. For that reason, the Ninth Circuit onremand rejected the
argument that 504(c) does not survive Feltner as contrary to theexpress
language of the Supreme Courts decision. Columbia PicturesTelevision, Inc. v.
Krypton Broad. of Birmingham, Inc., 259 F.3d 1186, 1192 (9thCir. 2001). As that
court also recognized, see id. at 1192, such a holding would becontrary to the
Supreme Courts approach in other Seventh Amendment cases wherethe Court
followed the same practice of curing a Seventh Amendmentviolation by reading a
statute to provide a jury trial right. See Tull v. UnitedStates, 481 U.S. 412, 425
(1987) (reading into Clean Water Act provision a right to have ajury determine
liability); Curtis v. Loether, 415 U.S. 189, 194 (1974) (readinginto Civil Rights
Act provision a right to a jury trial).2 That practice, in turn,reflects a much broader
2 Tenenbaum makes a half-hearted attempt to distinguish Tull asa case in which theCourt honored congressional intent by actuallyallowing judges to set the amount ofstatutory damages. Def.s Br.76. He is wrong on two counts. The question presented
in Tull was whether the Seventh Amendment guarantee[s] a rightto a jury trial onboth liability and amount of penalty in an actioninstituted by the Federal Governmentseeking civil penalties andinjunctive relief. 481 U.S. at 414 (emphasis added). Whilethe Courtheld that the Seventh Amendment does not provide a right to have ajurydetermine the amount of civil penalties, it first held that theAmendment does provide aright to have a jury decide liability, andthat the statute must be read to provide that rightas well. Id. at425. Tenenbaum also misleadingly describes Tull as allowing judgestoset statutory damages. Def.s Br. 76. As the Court noted whendistinguishing Tull in
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and deeply-rooted practice of construing statutes to beconstitutional and operative,
rather than rendering them a nullity. See, e.g., Ashwander v.Tenn. Valley Auth.,
297 U.S. 288, 354-55 (1936) (Brandeis, J., concurring).
Tenenbaum makes no real attempt to reconcile his argument withthe
Courts clear holding in Feltner. He instead attacksFeltnerhead-on, accusing the
Court of engag[ing] in outright judicial legislation, andclaiming it lacked
power to rewrite the statute in this manner. Def.s Br. 75, 77.Tenenbaums
disparagement of the Supreme Courts Seventh Amendmentjurisprudence cannot
change the reality that Feltneris the law of the land.
Moreover, in asking this Court to hold 504(c) invalid, Tenenbaumdoes not
just ask this Court to disregard the Supreme Courts holding inFeltner. He also
asks it to ignore a subsequent act of Congress. Feltnerwasdecided in 1998. One
year later, Congress passed the Digital Theft and CopyrightDamages Improvement
Act of 1999, which increased the amount of statutory damagesavailable under
504(c). See Pub. L. No. 106-160, 113 Stat. 1774 (increasingminimum to $750,
maximum to $30,000, and maximum for willful infringement to$150,000). That
Acts amendment of 504(c) would have had no effect had Feltnerrendered
504(c) a dead letter, and the fact that Congress passed it oneyear later makes
Feltner, Tull involved civil penalties to be paid to theGovernment, not statutorydamages to be paid to private parties.Feltner, 523 U.S. at 355.
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clear its intent that 504(c) continue to operate with a jurytrial right, as the Court
held in Feltner.3
In any event, it is clear that Tenenbaums hostility is not somuch to the
Supreme Courts chosen means of resolving the Seventh Amendmentproblem
created by 504(c), but rather to Feltners holding that the juryhas a role in
assessing statutory damages under the Seventh Amendment.Tenenbaum does not
consider assessment of statutory damages an appropriate task[]for a jury, which
in his mind lacks sufficient expertise to determine what measureof damages is
just. Def.s Br. 78. Although the district court was less directin disparaging the
jury, it, too, evinced skepticism of the capabilities of a jury,positing that jurors
are in need of additional guidance if they are to be entrustedwith the
responsibility of awarding statutory damages. Add. 39 n.12.
That disdain for the jurys ability is contradicted by more than200 years of
this countrys history and tradition, and is foreclosed by theSeventh Amendment
3 That Congress did not specifically mention Feltner whenpassing the 1999 Act isirrelevant. First, the legislative historyreveals that Congress recognized the authority of
juries to render statutory damages awards. See H.R. Rep.106-216, at 6 (1999) (Courtsand juries must be able to renderawards that deter others from infringing intellectualpropertyrights. (emphasis added)). In any event, it is well settled thatCongress ispresumed to be aware of ... [a] judicial interpretationof a statute and to adopt thatinterpretation if it re-enacts astatute without change. Forest Grove Sch. Dist. v. T.A.,129 S. Ct.2484, 2492 (2009) (internal quotation marks omitted). And whateverthe forceof that presumption as a general matter, it would surelybe extraordinary to conclude thatCongress was unaware of a veryrecent Supreme Court decision that, on Tenenbaumsrather remarkableview, rendered the congressional amendment of a nullified provisionacomplete fools errand.
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itself. It has long been recognized that by the law the jury arejudges of the
damages. Feltner, 523 U.S. at 353 (quotingLord Townshend v.Hughes, 86 Eng.
Rep. 994, 994-95 (C.P. 1677)). Indeed, assessment of the amountof damages has
historically been understood as so peculiarly within theprovince of the jury that
the Court should not alter it. Id. (quotingDimick v. Schiedt,293 U.S. 474, 480
(1935)). The Supreme Court relied on precisely thatconstitutional tradition to hold
that [t]he right to a jury trial includes the right to have ajury determine the
amountof statutory damages, if any, awarded to the copyrightowner. Id. This
Court has neither the authority nor any basis to alter thatconclusion.
B. Section 504(c) Does Not Differentiate Between CommercialandNoncommercial Infringers.
Tenenbaum next suggests that this Court bypass the due processquestion by
holding that statutory damages are unavailable where there isneither purpose nor
fact of profit. Def.s Br. 48. Once again, this is an argument hefailed to preserve
below. Although Tenenbaum argued that the purportedlynoncommercial nature
of his actions provided a basis upon which to reduce the award,see Def.s Mot.
and Mem. for New Trial or Remittitur (Def.s Post-Trial Mot.) 18(Doc. No. 26),
he did not file a motion for judgment as a matter of law on theground that his
actions were noncommercial or argue in his post-trial motionthat 504(c) is
inapplicable to noncommercial infringement. Accordingly, theargument he now
raises is forfeited. See Udemba v. Nicoli, 237 F.3d 8, 13 (1stCir. 2001) (to
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challenge denial of judgment as a matter of law, the challengermust first have
presented the same claim to the district court); Plumley, 303F.3d at 372 n.7. The
District Court embraced a junior varsity version of thisargument in rejecting the
amount of the jurys award. See Add. 32-38. Whether framed as achallenge (by
Tenenbaum) to the applicability of the statute or (by thedistrict court) to the jurys
damages award, this argument fails as a matter of law andfact.
1. As explained in Plaintiffs Opening Brief (at 30-37), 504makes no
distinction between commercial and noncommercial infringement,but rather
broadly applies to any infringer of copyright. 17 U.S.C. 504(a).The absence
of a commercial infringement limitation in 504(c) isparticularly telling, as the
criminal provision of the Act ( 506) does include such alimitation: it requires
infringement to be both willful[] and, inter alia, for purposesof commercial
advantage or private financial gain. Id. 506(a)(1).4 [W]hereCongress includes
particular language in one section of a statute but omits it inanother section of the
same Act, it is generally presumed that Congress actsintentionally and purposely
in the disparate inclusion or exclusion. Russello v. UnitedStates, 464 U.S. 16, 23
(1983) (internal quotation marks omitted).
4 [C]ommercial advantage or private financial gain is not anabsolute requirement;there are two other potential triggers forcriminal responsibility. See 17 U.S.C. 506(a).
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That presumption holds true here. Over its centuries ofexperience setting
copyright policy, Congress has recognized that in many instancesinfringement
may result in little or no profit or profits that may beimpossible to compute.
See Staff of H. Comm. on the Judiciary, 87th Cong., CopyrightLaw Revision:
Report of the Register of Copyrights on the General Revision ofThe U.S.
Copyright Law 103 (1961 Report) (Comm. Print 1961). Statutorydamages were
adopted in part to respond to and compensate for this reality.It would turn
Congresss intent on its head to make them unavailable absentpurpose []or fact of
profit, Def.s Br. 48.
2. In any event, even if 504 could somehow be read to includethe same
financial gain limitation as 506, that would not help Tenenbaum.As Congress
made clear in the No Electronic Theft (NET) Act of 1997,financial gain where it
actually appears in the statute is not limited to actual profit,but rather includes
receipt, or expectation of receipt, of anything of value,including the receipt of
other copyrighted works. Pub. L. No. 105-147, 2(a), 111 Stat.2678 (1997),
(codified as amended at 17 U.S.C. 101 (1997)). Congress expandedthe
definition in this manner in direct response to the holding inUnited States v.
LaMacchia, 871 F. Supp. 535 (D. Mass. 1994), that the creationof an unauthorized
electronic forum to share copyrighted works for free was notcriminal
infringement because it was not done for profit. In clarifyingthat financial gain
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includes receipt of anything of value, 17 U.S.C. 101, Congressrecognized
that infringers who do not realize a direct financial benefitmay nonetheless
substantially damage the market for copyrighted works. H.R. Rep.105-339, at 7
(1997).
Tenenbaum responds by pointing out that [t]he NET Act was notintended
to create parity between civil and criminal provisions. Def.sBr. 72. Fair
enough. But the lack of parity stems from the fact that 504(c)scivil provision
contains no financial gain limitation at all. The amendments to506s
financial gain limitation thus lessened the gap between criminaland civil
liability by clarifying that monetary gain was not aprerequisite for criminal
liability. The remaining lack of parity reflects Congresssconsidered judgment to
make a showing of financial gain wholly unnecessary under504.
3. Tenenbaums alternative attempt (at 71) to paint his actionsas outside the
scope of 101s definition is equally implausible and reveals acentral flaw in his
noncommercial exception argument: not only is this argumentlegally specious,
but his actions do not fit within any legitimate conception ofnoncommercial. As
courts have repeatedly recognized when addressing the commercialnature of an
alleged fair use, [d]irect economic benefit is not required todemonstrate a
commercial use. A&M Records, Inc. v. Napster, Inc., 239 F.3d1004, 1015 (9th
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Cir. 2001).5 Infringement may be commercial when it is done forthe benefit of
others, see, e.g., Worldwide Church of God v. Phila. Church ofGod, 227 F.3d
1110, 1118 (9th Cir. 2000) (church that copied religious textfor members
unquestionably profit[ed] from unauthorized distribution and useof [the text]
without having to account to the copyright holder); Am.Geophysical Union v.
Texaco, Inc., 60 F.3d 913, 922 (2d Cir. 1994) (researchersgained indirect
economic advantage by photocopying copyrighted scholarlyarticles), or simply to
save oneself the expense of having to purchase the copyrightedwork, see, e.g.,
Sega Enters. Ltd. v. MAPHIA, 857 F. Supp. 679, 687 (N.D. Cal.1994)
(downloading copies of video games to avoid having to buy videogame
cartridges constitutes commercial use).
For precisely those reasons, the Ninth Circuit affirmed adistrict courts
finding that file-sharing constitutes commercial copyrightinfringement. See
Napster, 239 F.3d at 1015. As the district court explained, ahost user sending a
file cannot be said to engage in a personal use whendistributing that file to an
anonymous requester, and those who download files frompeer-to-peer networks
get for free something they would ordinarily have to buy.A&M Records, Inc. v.
5[T]he purpose and character of the use is one of multiplefactors that guide a courtsdetermination of whether a defendantsactions are subject to the Copyright Acts fairuse defense. See 17U.S.C. 107. Whether a use is commercial or noncommercial isthus aconsideration but not a dispositive one in determining whether itis fair.See Napster, 239 F.3d at 1015.
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Napster, Inc., 114 F. Supp. 2d 896, 912 (N.D. Cal. 2000). TheNinth Circuit
agreed that commercial use is demonstrated by a showing thatrepeated and
exploitative unauthorized copies of copyrighted works were madeto save the
expense of purchasing authorized copies. Napster, 239 F.3d at1015. The same is
true here: Tenenbaums unauthorized uploading and downloading ofPlaintiffs
copyrighted works was done with the commercial purpose of savinghimself and
other network users the expense of purchasing authorizedversions, and is
materially indistinguishable from the LaMacchia-like behaviorCongress
targeted in the NET Act. H.R. Rep. 105-339, at 7.
4. Although Tenenbaum has amassed a considerable collection oflegislative
history in an attempt to prove that Congress meant to exemptconsumer
infringement (at 50-65), none of it advances his cause. Hedocuments little more
than that Congresss protection of sound recordings was motivatedby a desire to
curb commercial bootlegging and piracy, see Def.s Br. 54, whichdoes nothing to
counter the fact that the plain language of the statuteencompasses consumer
infringement. SeeOncale v. Sundowner Offshore Servs., 523 U.S.75, 79 (1998)
([I]t is ultimately the provisions of our laws rather than theprincipal concerns of
our legislators by which we are governed.).
Moreover, the same legislative history reveals that Congressintended to
prevent losses to the copyright owner, which may occur evenwhere an infringer
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does not directly profit from his infringement. See, e.g.,Prohibiting Piracy of
Sound Recordings: Hearings on S. 646 and H.R. 6927 BeforeSubcomm. 3 of the
H. Comm. on the Judiciary, 92d Cong. 4 (1971) (statement of Rep.Emanuel
Cellar, Chairman, H. Comm. on the Judiciary) ([T]he siphoningoff of sales that
would otherwise be made by the creators and owners of therecording has
reached alarming proportions.); id. at 55 (statement of LeonardFeist, Vice
President, Natl Music Publishers Assn) (these increased remedieswill enable
the copyright proprietor to deal effectively and forcefully withthose who steal the
creative efforts of others not only the large and ratherprofessional operators,
but all the innumerable small operators who are fully aware ofwhat they are
doing). Indeed, Tenenbaums version of noncommercial infringementmay
cause even greater injury to copyright holders than for-profitinfringement it
is, after all, hard to compete with free. See F.W. Woolworth Co.v. Contemporary
Arts, 344 U.S. 228, 232 (1952) (recognizing that sales at asmall margin might
cause more damage to the copyright proprietor than sales of theinfringing article at
a higher price).
Tenenbaum alternatively latches onto legislative historyindicating that
Congress did not intend the Copyright Act to cover homerecording for private
use and with no purpose of reproducing or otherwise capitalizingcommercially,
H.R. Rep. 92-487, at 6 (1971), reprinted in 1971 U.S.C.C.A.N.1566, 1572, and
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later made that intent explicit by exempting noncommercial useby a consumer
of a digital or analog recording device, Audio Home RecordingAct of 1992
(AHRA), Pub. L. No. 102-563, 1008, 106 Stat. 4237, 4244.Congresss
exemption of personal home recording is wholly irrelevantbecause, as Tenenbaum
grudgingly acknowledges (at 63), Congress deliberatelyexcludedsound recordings
copied and stored on computers from this exemption. SeeRecording Indus. Assn
of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1078 n.6(9th Cir. 1999)
(noting evidence that the exclusion of computers from the Actsscope was part of
a carefully negotiated compromise between the various industrieswith interests at
stake). In any event, once again, Tenenbaums sharing ofinfringing works with
the general public in expectation of receiving other infringingworks for free is a
far cry from the kind of noncommercial use Congress exempted inthe AHRA.
See, e.g., S. Rep. 102-294, at 55 (1992) ([F]or purposes ofillustration, the making
of an audiogram by a consumer for use in his or her home, car,or portable tape
player, or for a family member, is protected by thislegislation.).
5. Finally, Tenenbaums related suggestion (at 73-74) thatfile-sharing itself
is outside the scope of 504 is equally without merit. As aninitial matter, his
argument once again finds no support in the text of the statute,which provides no
exemption for any particular means of infringement and appliesto any infringer
of copyright. 17 U.S.C. 504(a). Moreover, as detailed inPlaintiffs Opening
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Brief (at 34-35), Congress expressly targeted Internet-basedinfringement when it
increased the available statutory damages in 1999. As a Housereport on an earlier
version of the 1999 Act explained, Many computer users areeither ignorant that
copyright laws apply to Internet activity, or they simplybelieve that they will not
be caught or prosecuted for their conduct. Also, many infringersdo not consider
the current copyright infringement penalties a real threat .H.R. Rep. 106-216,
at 3.
Tenenbaum urges this Court to follow the district courts leadin
disregarding this legislative history because Napster was notlaunched until shortly
after the 1999 Act was first drafted. But the fact thatpeer-to-peer networks were
not the specific impetus for the bill hardly obscures Congresssintent to curb
infringement through new advances in computer technology. Whatis clear is that
Congress intended 504(c) to reach so-called ordinary computerusers who
believe they can infringe with impunity, Add. 32, which isequally plain from the
fact that the statute does not exempt such infringers. [T]hat astatute can be
applied in situations not expressly anticipated by Congress doesnot demonstrate
ambiguity. It demonstrates breadth. Penn. Dept of Corr. v.Yeskey, 524 U.S.
206, 212 (1998) (internal quotation marks omitted). ThatCongress didattempt to
anticipate and respond to the rapidly increasing practice ofcomputer-aided
copyright infringement should lay to rest any argument thatCongress intended
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statutory damages to be unavailable or judicially circ*mscribedfor the kind of
infringement in which Tenenbaum engaged.
C. Section 504(c) Does Not Require Proof of ActualDamages.Finally, Tenenbaums argument that statutory damages shouldbe
unavailable where harm caused by a particular defendant has notbeen proved
must be rejected out of hand. Def.s Br. 48. That argument notonly finds no
support in the text of the statute, which pointedly providesstatutory damages as an
alternative to actual damages, but also is expressly contrary toCongresss clearly
and repeatedly stated intent, not to mention nearly a century ofSupreme Court case
law. Indeed, even the district court rejected such aconstruction of 504(c) as
implausible. Add. 12.6 In any event, contrary to Tenenbaumsarguments (at 23-
25) and the district courts faulty analysis, see Add. 44-53,Plaintiffs did prove that
Tenenbaums infringement caused them real and substantialinjuries. See Pls.
Opening Br. 25-30.
1. By its plain language, 504(c) does not condition theavailability of
statutory damages on proof of actual damages. Quite thecontrary, the statute
permits a copyright owner to elect to recover statutory damagesinstead ofactual
damages and profits. 17 U.S.C. 504(c) (emphasis added). Indeed,one of the
6According to the district court, Tenenbaum suggested imposingthis actual damagesprerequisite as a means of avoiding the dueprocess question. Although the district courtdiscussed thispossibility at a hearing on his post-trial motion, see Mar. 8, 2009Tr. 39(Doc. No. 42), Tenenbaum did not preserve this argument inthe motion itself.
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driving forces behind Congresss adoption and retention ofstatutory damages has
been its desire to compensate for the acknowledged inadequacy ofactual damages
and profits in many cases, which results because actual damagesare often
conjectural, and may be impossible or prohibitively expensive toprove. 1961
Report 102; see alsoDouglas v. Cunningham, 294 U.S. 207, 210(1935).
For those reasons, the Supreme Court has repeatedly andemphatically
rejected Tenenbaums argument. The Court first addressed theissue in L.A.
Westermann Co. v. Dispatch Printing Co., 249 U.S. 100 (1919).Much as in this
case, the record there, while showing that the plaintiff wasdamaged by the
infring[ement] , d[id] not show the amount of the damages. Id.at 103. As the
Court noted, the absence of such proof was aptly explained bythe fact that
damages primarily consisted of discouragement of and thetendency to destroy
[the plaintiffs] system of business, which rendered any accurateproof of actual
damages obviously impossible. Id. at 103-04 (internal quotationmarks
omitted). Nonetheless, because the plaintiff was unable toprovide such proof, the
district court declined to award damages within the statutorilyprescribed range and
instead awarded only nominal damages. Id. at 102.
The Supreme Court reversed. The Court explained that byproviding for
statutory damages in lieu of actual damages, Congress made clearthat
something other than actual damages are intended that anothermeasure is to be
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applied in making the assessment. Id. at 106 (quoting CopyrightAct of 1909, 35
Stat. 1075). Congress also made clear what that other measureshould be: the
courts conception of what is just in the particular case is madethe measure of
damages to be paid, but with the express qualification that inevery case the
assessment must be within the prescribed limitations. Id. TheCourt thus
concluded that the Copyright Act not only permits but requires awithin-range
statutory damages award regardless of whether a plaintiff offersa definitive
measure of [its] harm, Def.s Br. 16. See 249 U.S. at 107-08.
The Court took that logic a step further in F.W. Woolworth.There, the
district court awarded the maximum statutory damages of $5,000,even though
uncontradicted evidence showed only about $900 in actualdamages. The Supreme
Court granted certiorari to determine whether a court may awarddamages
authorized by the statute but in excess of proven actualdamages. See 344 U.S. at
229. It answered with a resounding yes. Not only did the Courtreject the
argument that statutory damages are confined to proven actualdamages; it
confirmed that a plaintiff need not even suffer any actualdamages, let alone
quantify and prove them. It instead concluded that [e]ven foruninjurious and
unprofitable invasions of copyright the court may, if it deemsit just, impose a
liability within statutory limits to sanction and vindicate thestatutory policy. Id.
at 233.
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As the Courts analysis in these cases confirms, the very purposeof statutory
damages is to offer a measure of recovery in contexts whereactual damages are
difficult or impossible to prove. Id. at 231 (quotingDouglas,294 U.S. at 209).
And as the Court recognized, the Acts statutory damagesprovision embodies
Congresss considered and reasonable judgment that copyrightinfringement is
always against the public interest and should always bedeterred. For that reason,
a rule of liability which merely takes away the profits from aninfringement would
offer little discouragement to infringers [and] would fall shortof an effective
sanction for enforcement of the copyright policy. Id. at233.
Ignoring this century of Supreme Court precedent rejecting hisproposed
interpretation, Tenenbaum instead attempts to derive an actualdamages
limitation from the legislative history of various revisions tothe Copyright Act.
See Def.s Br. 50-65. Nothing in his lengthy exposition providesany basis upon
which such a limitation might be inferred. Tenenbaum firstattempts to divine this
limitation from language in the 1909 Act providing thatstatutory damages shall
not be regarded as a penalty. See Def.s Br. 52 (citing 1909 Act25(b)).
According to Tenenbaum, this language (which, incidentally, isnot found in the
current version of 504(c)) was an indirect response toCongressional concern
that statutory damages should be capped, and thereforedemonstrates that
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statutory damages should not be permitted absent conclusiveproof of actual
damages. Def.s Br. 53.
Tenenbaum is plainly mistaken in attempting to transform theshall not be
regarded as a penalty language into a requirement that actualdamages be
quantified and proven before a plaintiff may elect statutorydamages. As the
Supreme Court has explained, [t]he phraseology of the sectionwas adopted to
avoid the strictness of construction incident to a law imposingpenalties,Douglas,
294 U.S. at 209, which was of particular concern given athen-recent case in which
a defendant sought to invoke certain evidentiary andjurisdictional protections by
arguing that the statutory damages provision was penal innature, see Brady v.
Daly, 175 U.S. 148, 160 (1899) (holding that the statute did notimpose a penalty).
That the Court did not understand the penalty language to be aroundabout
means of requiring proof of actual damages is evident from thefact that Douglas
affirmed a maximum statutory damages award of $5,000 where noactual damage
had been shown. Douglas, 294 U.S. at 208.
Nor is there any evidence that Congress implicitly changed thiswell-settled
rule when it passed the 1976 Copyright Act. Pub. L. No. 94-553,90 Stat. 2541
(1976). As Tenenbaum recognizes, the 1976 revisions grew inlarge part out of a
comprehensive 1961 study of existing copyright law. Far fromquestioning or
rejecting the notion that statutory damages require noconclusive proof of injury,
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the 1961 report embraced it, explaining that statutory damagesrespond to the
acknowledged inadequacy of actual damages and profits in manycases. 1961
Report 102; see also id. ([t]he value of a copyright is, by itsnature, difficult to
establish, and the loss caused by an infringement is equallyhard to determine).
And to the extent Congress remained concerned about potentiallyexcessive
statutory damages awards, it once again responded to suchconcerns directly, by
retaining a cap on the statutory range, a cap it has repeatedlyraised in subsequent
amendments.
2. As the foregoing makes clear, both Congress and the SupremeCourt have
rejected the logical fallacy upon which Tenenbaums argumentrests that where
damages cannot be quantified or conclusively proven, damages donot exist.
Moreover, as detailed in Plaintiffs Opening Brief (at 25-30),the record here is
replete with evidence of the real and substantial injuryTenenbaums infringement
caused. As Tenenbaum himself testified, he not only downloaded30 copyrighted
sound recordings for free; he also made his illegal copiesavailable for years at a
time for millions of other peer-to-peer network users todownload from him for
free. Appx. 149-51, 171-73, 184. As a result, his infringementdeprived Plaintiffs
of the profits they might have made not only from Tenenbaum, butfrom an
unknowable number of other network users as well. See Def.s Br.23 (conceding
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that the number of other users Tenenbaum may have distributedthe songs to is
unknown).7
Plaintiffs also provided substantial evidence of the broaderharms to which
Tenenbaums infringement contributed. The ubiquitous infringementmade
possible by peer-to-peer networks has reduced the value of theparticular
copyrights infringed, as well as the value of copyrighted soundrecordings as a
whole. Appx. 91-92, 123-40. Plaintiffs uncontested trialevidence showed that
these and other harms have cost the recording industry billionsof dollars each year
since the advent of peer-to-peer network technology. Appx.123-41. Tenenbaum
does not dispute as much, but rather, much like the districtcourt, see Add. 47,
seeks to hold Plaintiffs responsible for their inability todefine what portion of that
harm was caused by Tenenbaum. Def.s Br. 22. But the nature ofthe infringing
technology that Tenenbaum voluntarily availed himself of madesuch a
particularized showing impossible. See July 29, 2009 Tr. 168-69(Doc. No. 55).
And Tenenbaum provides no basis upon which a factfinder mightabsolve him of
any responsibility. The law generally does not look favorably onparties whose
own misconduct makes it difficult to pinpoint the extent of theinjury they have
7 Tenenbaums protest that this number surely did not run intothe millions, Def.s Br.23-24, is beside the point. The jurysverdict of $22,500 per work at the low end ofdamages it could haveawarded under 504(c) would not have come close tocompensating foractual losses had the jury assumed, as Tenenbaum suggests, thateachof the millions of network users downloaded every work that hemade available.
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caused. See Bigelow v. RKO Radio Pictures, 327 U.S. 251, 264(1946) (to
preclude recovery in such circ*mstances would be an inducementto make
wrongdoing so effective and complete in every case as topreclude any recovery,
by rendering the measure of damages uncertain). But here,Tenenbaum had the
opportunity to direct his arguments about reduced culpabilityand lack of
quantifiable harm to the jury, see July 31, 2009 Tr. 53-54 (Doc.No. 57), and the
jury rejected them. See Parker v. Gerrish, 547 F.3d 1, 13 (1stCir. 2008) (evidence
must be viewed in light most favorable to jurys verdict).
In sum, as the district court recognized, every authorityconfirms what the
language of section 504 clearly indicates statutory damages maybe elected
even if the plaintiff cannot, or chooses not to, prove actualdamages. Add. 12
(citingL.A. News Serv. v. Reuters Television Intl, Ltd., 149F.3d 987, 996 (9th Cir.
1998);Harris v. Emus Records Corp., 734 F.2d 1329, 1335 (9thCir. 1984); H.R.
Rep. No. 94-1476, at 161 (1976); 4 Melville B. Nimmer &David Nimmer,
Nimmer on Copyright, 14.04[A], at 14-66 (2009)). Both Congressand the
Supreme Court have conclusively rejected the argument that theabsence of a
definite measure of damages renders statutory damagesunavailable or
inappropriate. To the contrary, they have recognized what thefacts of this case
prove: that copyright infringement can and here, did causesubstantial injury
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and merit substantial statutory damages even when that injurycannot be
quantified.
II. The Jurys Award Is Constitutional.The jurys award of $22,500per infringed work an award within the
range even for non-willful infringement does not depriveTenenbaum of liberty
or property without due process of law. The constitutionalquestion is squarely
presented by the district courts ruling below and cannot beavoided via remittitur.
The constitutional question is governed by the deferentialstandard set forth in
Williams, not by the incompatible and irrelevant guideposts setforth in Gore, but
in any event, the award is constitutional under eitherstandard.
A. Remittitur Is Not a Viable Means of ConstitutionalAvoidance.There is no merit to the Governments argument that thisCourt or the
district court could avoid the constitutional issue through thecommon-law doctrine
of remittitur. First, the Supreme Court has made clear thatcourts have no
common-law authority to reduce statutory damages awards underthe Copyright
Act. Nor can a court avoid a due process question by, as theGovernment suggests,
engaging in due process review under the guise of remittitur.Furthermore, as both
the parties and the district court recognized, it is clear as apractical matter that
remittitur would not have avoided a constitutional challenge inthis case. The
jurys award reflected Tenenbaums culpable conduct, not someidiosyncratic and
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inappropriate reaction of this particular jury panel.Accordingly, there is nothing
to be gained from remanding for remittitur.
1. As the Supreme Court has recognized, reviewing courts have noauthority
under the Copyright Act to reevaluate what measure of statutorydamages is just.
SeeDouglas, 294 U.S. at 208-09 (rejecting argument that anappellate court may
review the action of a trial judge in assessing an amount inlieu of actual damages,
where the amount awarded is within the limits imposed by the[statute]). Any
within-range award, in the contemplation of the statute, isjust, which means a
factfinder cannot abuse its discretion by making such an award.Id. at 210. [T]he
language and the purpose of the statute therefore compelled theCourt to conclude
that the employment of the statutory yardstick, within setlimits, is committed
solely to the court which hears the case. Id.; see alsoL.A.Westermann, 249 U.S.
at 106 (within the statutory range, the courts discretion andsense of justice are
controlling). For that reason, the Court held that the CopyrightAct takes
[statutory damages] out of the ordinary rule with respect toabuse of discretion
review of the amount of a damages award. Douglas, 294 U.S. at210. The premise
of common-law remittitur that a jury award is against the greatweight of the
evidence, see Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 81(1st Cir. 2010)
is therefore inapplicable to a within-range award given thenature of the just
standard for statutory damages under 504(c).
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Feltneralters that analysis only by making clear that the jury,rather than the
judge, is the finder of this fact and by adding a potentialSeventh Amendment
violation to the list of reasons why judges cannot second-guessa jurys within-
range award. See Govt.s Opening Br. 25 (noting a substantialquestion as to
whether the trial court can enter judgment for a reduced amountof statutory
damages without violating the Seventh Amendment right to a jurytrial mandated
by Feltner). Feltnerdid not otherwise disrupt the principle onwhich [Congress]
proceeded that of committing the amount of damages to berecovered to the
courts discretion and sense of justice, subject to prescribedlimitations. L.A.
Westermann, 249 U.S. at 107. Thus, after Feltner, a jurysconception of what is
just in the particular case, considering the nature of thecopyright, the
circ*mstances of the infringement and the like, is made themeasure of the
damages to be paid, and cannot be disturbed (absent a violationof the Williams
standard) so long as it is within the statutory limits. Id. at106. To grant a judge
common-law authority to displace the jurys finding on this pointwould render
meaningless the central holding ofFeltner, namely, that theSeventh Amendment
provides the right to have a jury determine the amount ofstatutory damages.
Feltner, 523 U.S. at 353.
2. The Government does not address these reasons why there isno
common-law authority to second-guess whether a jurys statutorydamages award
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is just. Nor does the Government suggest any non-constitutionalstandard by
which the jurys award should be judged. Nor has the Governmentidentified any
example other than Capitol Records Inc. v. Thomas-Rasset, 680 F.Supp. 2d 1045
(D. Minn. 2010), of a court invoking a common-law remittitur toreduce a
statutorily authorized award.8 Instead, the Government contends,somewhat
obliquely, that in the name of constitutional avoidance, thedistrict court should
have employed the remittitur procedure to apply a standardcommensurate with
constitutional standards under the Due Process Clause. Govt.sOpening Br. 20.
The Government is correct to recognize, albeit implicitly, thatthere is no proper
role for remittitur based on any standard other than the properdue process standard
namely, Williams. L.A. Westermann,Douglas, and Feltnerall makeclear that
the court has no authority to remit a jury award to an amountlower than what the
Due Process Clause permits.
But if a remittitur can only be ordered when and to the extentthat the Due
Process Clause requires a reduction in the jurys award, then theconstitutional
question is not avoided. A court cannot apply a standard thatafford[s] defendants
8Thomas-Rassetis hardly a promising model for that approach, asit demonstrates that aremittitur would simply cause further delaywithout avoiding the ultimate constitutionalquestion. In that case,which also involves a due process challenge to a statutorydamagesaward under 504(c), on retrial after the plaintiffs declined toaccept theremitted award, a jury again awarded damages within thestatutory range for willfulinfringement, and the defendant hasagain challenged the award as excessive under theDue ProcessClause. See Capitol Records v. Thomas-Rasset, No. 06-1497 (D.Minn.2010).
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a full measure of [constitutional] protection, Govt.s OpeningBr. 20, without
deciding what the full measure of constitutional protection is.Simply calling it a
remittitur does nothing to avoid a constitutional ruling andindeed raises difficult
practical problems of its own.
3. As both the parties and the district court all of whom aremuch closer
to the practical realities of this litigation recognized, theGovernment is not so
much proposing a remittitur that truly avoids constitutionaldecisions as it is
proposing an endless string of retrials. Tenenbaums brief makesclear that he
considers even the district courts reduced awardunconstitutional. Thus, the courts
will need to consider a constitutional question no matter whatamount a jury
ultimately awards. Plaintiffs have also made clear that theywould not voluntarily
accept such a remitted award, but rather would seek to vindicatetheir right to a
larger award within the statutory range.
The extensive evidence of Tenenbaums willful and egregiousinfringement
makes clear that a retrial would very likely result once againin an award that
Tenenbaum considers unconstitutional (particularly given that heconsiders even
the courts reduced award excessive). That is in large partbecause, as Tenenbaum
himself acknowledges, his complaint is not really about themanner in which the
jury exercisedits discretion, but is rather about Congresssdecision to grant such
discretion in the first place (and the Supreme Courtsdetermination in Feltnerthat
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the Constitution entrusts this discretion to a jury). See Def.sPost-Trial Mot. 18
([Tenenbaum] is not asserting that the jury abused itsdiscretion. Rather, he
asserts that the jury was given far too much discretion .). Forthat reason,
remittitur, even if somehow available in 504 cases in theabstract, would be
inappropriate in this case. Tenenbaum does not and cannot claimthat his
excessiveness challenge is grounded in jury misconduct andreadily admits that he
is really challenging Congresss judgment. As the district courtcorrectly
recognized, the inevitable retrial in this case would thereforepresent[] the very
constitutional issues that the remittitur procedure was designedto avoid, Add. 5,
which would make a remand for remittitur a waste of judicialresources.
B. Constitutional Review is Governed by Williams, notGore.Tenenbaums brief, like the district courts opinion, fails tograsp the
distinction between review of an award within a statutorilyprescribed range and
punitive damages review. Statutory damages are expresslyauthorized by
Congress, which makes their review a question of the scope ofCongresss
legislative authority. Punitive damages, by contrast, aretypically awarded by
juries without explicit statutory authorization or limitationsand thus not only pose
unique fair notice questions not present in the statutorydamages context, but also
present no basis upon which courts could easily defer tolegislative judgments.
Nonetheless, in the latter context, courts seek to importanalogous statutory
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penalties into the analysis, so they will have some legislativeguidance to inform
their inquiry.
As Williams makes clear, the fundamental question in a statutorydamages
case is whether the legislature has acted within its widelatitude of discretion in
authorizing statutory damages. Williams, 251 U.S. at 66. Farfrom attempting to
curb that discretion, review under Williams requires a court todefer to Congresss
considered judgment by undertaking constitutional analysis withdue regard for
the interests of the public, the numberless opportunities forcommitting the offense,
and the need for securing uniform adherence to established[law]. Id. at 67. So
long as the legislatures assessment of what measure of damagesappropriately
responds to those concerns is not wholly disproportioned to theoffense or
obviously unreasonable, it withstands constitutional scrutiny.Id.
The guideposts articulated in Gore, by contrast, are designed tocompensate
for the very absence of any direct legislative judgment thatwould provide notice
and to which a court might defer. In the absence of thatguidance, a court must
struggle to determine for itself how reprehensible a defendantsconduct is, a
question normally left to the judgment of the legislature. SeeGore, 517 U.S. at
576.9 Far from attempting to displace the legislatures authorityto make such
9 There is nothing particularly revealing about the Courtsreference to Williams whenexplaining the reprehensibilityguidepost. See Gore, 517 U.S. at 575. The first guidepostisdesigned to attempt to replicate to some extent the legislativereprehensibility judgment
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determinations, Gore reinforces the primacy of the legislatureby seeking to import
substantial deference to legislative judgments into theanalysis, by employing a
third guidepost that compares an unconstrained punitive damagesaward to the
civil or criminal penalties that could be imposed for comparablemisconduct. Id.
at 583 (internal quotation marks omitted); see also CooperIndus., Inc. v.
Leatherman Tool Grp., Inc., 532 U.S. 424, 433 (2001)(legislatures enjoy broad
discretion in authorizing and limiting permissible punitivedamages awards).10
Implicitly recognizing the irrelevance of the first and thirdguideposts in a
statutory damages case, Tenenbaum instead focuses hisconstitutional challenge on
the second Gore guidepost, claiming that the jurys award (andeven the district
courts reduced award) lacks a sufficiently reasonablerelationship to actual
damages. See Gore, 517 U.S. at 580-81 (punitive damages awardsmust bear a
reasonable relationship to compensatory damages). In doing so,he only confirms
Gores incompatibility with Williams, which conclusively rejectedthe argument
that is lacking. A fortiori, the Court would deem its ownsubstitute reprehensibilityanalysis subject to the same constraintas a legislatures, namely, that authorized damagesnot be whollydisproportioned to the offense. Williams, 251 U.S. at 67.
10Tenenbaum gains nothing by noting that the line betweenstatutory damages awardsand punitive damages awards continues toblur, as more and more states regulate bystatute when punitivedamages may be awarded, and in what amounts. Def.s Br. 13n.3. AsJustice Ginsburg explained when highlighting the same phenomenon inherdissenting opinion in Gore, that increase in legislativeguidance counsels in favor ofless
judicial oversight of punitive damages not more judicialoversight of statutorydamages. See Gore, 517 U.S. at 613-14(Ginsburg, J., dissenting) ([T]he reexaminationprominent in statecourts and in legislative arenas serves to underscore why thisCourtsenterprise is undue. (footnote and citation omitted)).
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that statutory damages must be confined or proportioned to [theplaintiffs] loss or
damages. Williams, 251 U.S. at 66. Indeed, as the Courtacknowledged in
affirming an award 113 times larger than actual damages, when astatutory
damages award is contrasted with the [actual damages] possiblein any instance it
of course seems large. Id. at 67. But the Court admonished thatit* validity is
not to be tested in that way, as the Legislature may adjust [theawards] amount
to the public wrong rather than the private injury. Id. at66-67. That admonition
is nowhere more relevant than in the Copyright Act, whereCongress authorized
statutory damages for the express purpose ofrelieving aplaintiff of the burden of
quantifying actual injury. See Part I.C., supra.
As these distinctions make abundantly clear, statutory damagesreview under
Williams is not of a piece with punitive damages review underGore, Def.s Br.
12, but is fundamentally different. The courts role is much morelimited because
the legislature has spoken, and in doing so has provided bothnotice to potential
defendants and a binding assessment of the reprehensibility andseriousness of the
prohibited conduct. Whereas Williams is rooted in deference tothe legislature,
Gore expressly invites courts to make the judgment that thelegislature has not
made in the first instance. Whereas the former affirmativelyeschews comparison
to actual damages, the latter expressly requires it. Because ofthese contradictions
between the two decisions, to accept Tenenbaums argument wouldrequire this
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Court to hold that Gore overruled Williams. Given the importantdistinctions
between statutory and punitive damages, it is entirely naturalfor different
standards to govern, and certainly nothing in Gore or itspunitive damages progeny
suggests that Williams is no longer good law. Even if this Courtwere to believe
that Williams has lost its vitality, however, that would stillbe no justification for
declining to apply it faithfully here. Given a choice betweentwo Supreme Court
precedents, this Court must follow the case [that] directlycontrols, leaving to
[the Supreme] Court the prerogative of overruling its owndecisions. United
States v. Sampson, 486 F.3d 13, 20 (1st Cir. 2007)(quotingRodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)).
Nor does Tenenbaums argument find support in the decisions ofthis or any
other court. Rather, courts addressing the question directlyhave repeatedly
concluded that Williams remains good law and that Williams, notGore, governs
review of statutory damages awards. See, e.g., AccountingOutsourcing LLC v.
Verizon Wireless Pers. Commcns, L.P., 329 F. Supp. 2d 789,808-09 (M.D. La.
2004); Lowrys Reports, Inc. v. Legg Mason, Inc., 302 F. Supp. 2d455, 460 (D.
Md. 2004); see alsoZomba Enters., Inc. v. Panorama Records,Inc., 491 F.3d 574,
587-88 (6th Cir. 2007). Neither Tenenbaum nor the district courthas pointed to
any case that holds otherwise. See Pls. Opening Br. 44-45 n.13(distinguishing
cases the district court claimed created a split of authority onthis question).
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Tenenbaum cites three cases that purportedly connect[] the dotsbetween
Williams and Gore, Def.s Br. 14, but none does anything of thesort. In fact,
none even mentions Williams, which is hardly surprising sincenone actually
reviews a statutory damages award. Tenenbaum first invokes thisCourts opinion
inRomano v. U-Haul Intl, 233 F.3d 655 (1st Cir. 2000), which isnot a statutory
damages case, but instead involvespunitive damages awarded undera statute that
imposed a cap. In reviewing the constitutionality of that award,the Court did not
address whether Williams might govern in that context. Even so,the Court still
suggested that application of the Gore guideposts may beunnecessary, noting that
a punitive damages award that comports with a statutory capprovides strong
evidence that a defendants due process rights have not beenviolated. Id. at 673.
If anything, Romano therefore undermines Tenenbaums argumentthat the Gore
guideposts still govern when the legislature has spoken.
Tenenbaums reliance on Parker v. Time Warner Entertainment Co.,L.P.,
331 F.3d 13 (2d Cir. 2003), is similarly misplaced. Parkerdidnot involve review
of a damages award at all, but instead concerned a districtcourts refusal to certify
a statutory damages class action, in part out of concern thataggregation of
statutory damages might result in a devastatingly large damagesaward. Id. at
22. Although the court suggested that in a sufficiently seriouscase the
distortion created by the combination of statutory damages andclass certification
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might raise due process concerns, it concluded that theseconcerns remain
hypothetical and vacated the denial of certification. Id. Inspeculating about this
potential due process problem, the Court gave no indication ofwhat standard might
govern review of such a challenge, but instead simply cited Gorefor the
proposition that the Due Process Clause prohibits grosslyexcessive damages
awards. See id; see also id. at 26 (Newman, J., concurring)(citing Williams as the
governing standard for review of statutory damages awards).
The Supreme Courts opinion inExxon Shipping Co. v. Baker, 554U.S. 471
(2008), is, if possible, even less relevant. Exxon did notinvolve statutory damages
orthe Due Process Clause. It instead involved punitive damagesand the standard
under maritime common law for examining whether such awards areexcessive.
Id. at 501-02. In looking to Gore to devise an appropriate ratiobetween
compensatory and punitive damages in the exercise of itsmaritime common law
authority, the Court made abundantly clear that it did so in theabsence of
legislation, which left the Court with primary responsibilityfor reviewing
punitive damages. Id. at 507. That the Court found the Goreguideposts useful to
common-law review of unconstrained punitive damages awards saysnothing about
whether the Court would find those guideposts applicable or evenrelevant
when addressing a duly authorized statutory damages award.
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In sum, both Tenenbaum and the district court erred byconflating
deferential statutory damages review under Williams with thequalitatively distinct
Gore approach to punitive damages review. Williams plainlygoverns this
challenge and requires this Court to affirm the jurys award solong as Congresss
assessment of just damages is not wholly disproportioned to theoffense or
obviously unreasonable. Williams, 251 U.S. at 67.
C. The Jurys Award Is Constitutional Under Williams.The jurysaward readily withstands scrutiny under the deferentialWilliams
standard. Giving due regard [to] the interests of the public,the numberless
opportunities for committing the offense, and the need forsecuring uniform
adherence to established copyright law, the award cannot be saidto be so severe
and oppressive as to be wholly disproportioned to the offenseand obviously
unreasonable. Williams, 251 U.S. at 67.
Implicitly recognizing as much, Tenenbaum does not even botherto attack
the award within the Williams framework, other than to attackCongresss
determination that statutory damages should be awarded per work,rather than per
infringer. According to Tenenbaum, the Constitution does notpermit a per
infringement maximum, Def.s Br. 17, but rather compels courts toassess
statutory damages under something akin to the single larcenyrule, with the
understanding that at least some amount of reprehensibilitylogically originates
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from the decision to install software and engage in downloadingillegally, rather
than how many songs are downloaded from that activity, Def.s Br.20-21.
Once again, Tenenbaums argument runs head-on into centuriesof
congressional judgment, as well as yet another settled SupremeCourt precedent.
That damages are assessed on a per-infringement basis is not theresult of some
absence of careful legislative calibration, Def.s Br. 19-20, butis instead a
product of the fact that, under the Copyright Act,[i]nfringement of several
copyrights is not put on the same level with infringement ofone. L.A.
Westermann, 249 U.S. at 105. Rather, [e]ach copyright is treatedas a distinct
entity, and the infringement of it as a distinct wrong to beredressed through the
enforcement of this liability. Id.
As the text of the Constitution makes plain, it is Congress thathas been
assigned the task of defining the scope of copyright protection.Sony Corp. v.
Universal City Studios, Inc., 464 U.S. 417, 429 (1984). Congresshas employed
the per-work approach since it passed the very first CopyrightAct in 1790, see Act
of May 31, 1790, ch. 15, 2, 1 Stat. 124, 125, and Tenenbaumprovides no basis
upon which to invalidate over 200 years of Congresss judgment asto how best to
promote the Progress of Science and useful Arts. U.S. Const.art. 1, 8. In
short, there is nothing unreasonable or unconstitutional aboutCongresss
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determination that the infringement of a second copyright shouldtrigger the same
remedies as infringement of the first.
Beyond arguing that the frequency of his infringement warrantsless
damages rather than more, Tenenbaum focuses almost exclusivelyon the second
Gore guidepost regarding the awards ratio to actual damages, ameasure by which
a statutory damages award is not to be tested. Williams, 251U.S. at 67.
Tenenbaums related protest that filesharing was not on trial inthis case, Def.s
Br. 25, similar

Sony v. Tenenbaum (Sony Reply Brief) - [PDF Document] (2024)

References